Marino v Chief Executive of the Department of Corrections [2016] NZHC 459 (16 March 2016)

Last Updated: 12 April 2016

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2016-485-165 [2016] NZHC 459

UNDER THE	Habeas Corpus Act 2001
IN THE MATTER OF	an application for habeas corpus
BETWEEN	MICHAEL MARINO Applicant
AND	CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing:	16 March 2016
Counsel:	G Edgeler for Applicant D J Perkins and T P Westaway for Respondent
Judgment:	16 March 2016

_{JUDGMENT OF SIMON FRANCE J}

Introduction

[1] Mr Marino applies for a writ of habeas corpus directing his release from prison. He says he has served his sentence and is entitled to release. The correctness of that proposition turns on the issue of credit for pre-sentencing custodial remand.

Issue

[2] Mr Marino was remanded in custody on charges of breaching a protection order and assault on a child. While in custody on two separate occasions he made phone calls which were designed to have the victim change her story. He was charged in relation to each phone call with attempting to pervert the course of

_{justice. The remand sequence was:}

MARINO v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2016] NZHC 459 [16 March 2016]

18 March 2015	–	Appears in court and remanded in custody in relation to the first phone call.
19 June 2015	–	Appears in court charged with second call and remanded in custody.

[3] At sentencing on 27 October 2015 Mr Marino received concurrent 22 month sentences on each charge. This is a short term sentence so an offender must be released after serving 11 months.

[4] The Chief Executive has calculated different release dates on each 22 month sentence due to the difference in time spent on remand in relation to each:

(a) custodial remand on first phone call – 18 March 2015 until

27 October 2015 being 223 days;

(b) custodial remand on second phone call – 19 June 2015 to

27 October 2015 being 130 days.

[5] The practical effect is that this means Mr Marino will remain in custody past the time when he is eligible for release on the first phone call sentence because he has not yet served 11 months on the second phone call sentence.

[6] Mr Marino says the calculation is in error and that the relevant provisions of the Parole Act 2002, properly interpreted, mean all the time served since 18 March should be credited to both sentences.

Legislation

[7] The key provisions are ss 90 and 91(1) of the Parole Act 2002 (the Act):

90 Period spent in pre-sentence detention deemed to be time served

(1) For the purpose of calculating the key dates and non-parole period of a sentence of imprisonment (including a notional single sentence) and an offender's statutory release date and parole eligibility date, an offender is deemed to have been serving the sentence during any period that the offender has spent in pre-sentence detention.

(2) When an offender is subject to 2 or more concurrent sentences,—

(a) the amount of pre-sentence detention applicable to each sentence must be determined; and

(b) the amount of pre-sentence detention that is deducted from each sentence must be the amount determined in relation to that sentence.

(3) When an offender is subject to 2 or more cumulative sentences that make a notional single sentence, any pre-sentence detention that relates to the cumulative sentences may be deducted only once from the single notional sentence.

91 Meaning of pre-sentence detention

(1) Pre-sentence detention is detention of a type described in subsection (2) that occurs at any stage during the proceedings leading to the conviction or pending sentence of the person, whether that period (or any part of it) relates to—

(a) any charge on which the person was eventually convicted; or

(b) any other charge on which the person was originally arrested; or

(c) any charge that the person faced at any time between his or her arrest and before conviction.

...

[8] The applicant’s argument turns on that part of s 91(1) which reads:

... whether that period (or any part of it) relates to ...

Applicant’s submissions

[9] The applicant’s argument is that the best reading of the Act is in fact a date earlier than any I have thus far identified, namely 11 February 2015. This is the date on which Mr Marino was first remanded in custody on the breach of protection order charges. Since then he was permanently in custody until sentenced in October. It is submitted that such an interpretation would bring consistency and fairness.

[10] This argument turns on an expansive reading of s 91(1)(a), (b) and (c). It focuses on any charge on which the person was convicted, originally arrested, or faced at any time between arrest and before conviction. It requires “proceedings” in the initial part of s 91(1) to be read as meaning not a specific charge but a “related history of dealings” or some such definition.

[11] It is accepted the argument is not consistent with much of the existing authority, but it is submitted it better accords with the policy of the Act. Pre-sentence detention is not punitive and an offender is to receive full credit. That is the scheme of the Act. It is also submitted to be clear.

[12] If this is not accepted, it is submitted that one of 6 March (offence date of second phone call) or 18 March (remand date for first phone call) must be the correct answer. 6 March is selected because Mr Marino was detained every day since he committed it. 18 March is selected because it is submitted the second phone call is a continuation of the same conduct underlying the first charge and that was the initial remand date for that course of conduct. It is related offending in terms of s 91(1). This approach was favoured in Brandon v The Chief Executive of the Department of

Corrections¹ and Maile v The Manager, Mount Eden Corrections Facility.² In

particular it is argued the “holding charge” analysis in Brandon applies here.

Decision

[13] In my view this issue was settled in Taylor v Superintendent of Auckland Prison and nothing has changed.³ Although that was decided under the Criminal Justice Act 1985, the wording of the statute was the same. It is convenient to cite from Taylor to illustrate this:

[6] The issue turns on the construction of s 81(1) of the Criminal Justice Act 1985 (now replaced by the Parole Act 2002 – see ss 91 and 92) which provided:

81. Period on remand to be taken as time served – (1) The superintendent of any penal institution or the person in charge of any hospital, as the case may require, shall for the purposes of this section cause a record to be kept of–

(a) The date on which any person is admitted to the

institution on remand ...; and

(b) The total period during which that person is detained in the institution on remand ... –

at any stage of the proceedings leading to the person’s conviction or pending sentence, whether that period or any part of it relates to any

_{charge [1] on which the person was originally arrested or [2] that the}

1. Brandon v The Chief Executive of the Department of Corrections [2015] NZHC 1257, [2015] NZAR 1257.

² _{Maile v The Manager, Mount Eden Corrections Facility [2011] NZHC 1208; [2012] NZAR 39.}

³ Taylor v Superintendant of Auckland Prison [2003] NZCA 159; [2003] 3 NZLR 752 (CA) at [6].

person faced at any time subsequent to his or her arrest and prior to conviction. (Emphasis and numbering added.)

[14] Concerning the meaning to be attached to the italicised wording in the old s 81 (which is now subparagraphs (b) and (c) of s 91(1)) the Court held:

[15] The options following the clause “at any stage of the proceedings leading to the person’s conviction or pending sentence” are designed to cover the eventualities that arise in relation to an initial charge:

(1) any charge on which the person was eventually convicted

(the case of a conviction upon the original charge); and

(2) any other charge that the person faced at any time subsequent to arrest and prior to conviction. That embraces any other remand time served whether on intermediate charge not originally brought and not subject of sentence resulting from the same series of events; and also, as held in R v Coward, remand on unrelated charges.

[16] The essential point is that the remand credit is for time served between the time of original charge and the time of sentence on the same or a related charge. The alternative would be that a prisoner earned remand credit in relation to an offence not only unrelated to the reason for the prisoner being in jail, but one of which the prisoner has not been charged; of which the commission might not be known to the authorities; or indeed the commission of which might not even have occurred.

[15] This is determinative of the matter. Mr Marino is contending for the alternative proposition that is expressly rejected in this passage from Taylor. Unless the new charge is truly an amended or substituted charge for the one on which the offender was originally charged, it does not come within s 91. Rather, it is governed by the provisions of s 90(2) which makes it plain the Chief Executive’s task, in relation to concurrent sentences, is to calculate the amount of pre-detention sentence applicable to each sentence and then to deduct only the amount determined in relation to that sentence.

[16] Absent this expansive reading of s 91(1) which I consider has been rejected, what the Chief Executive has done here accords with the wording of the Parole Act 2002. It also avoids the situation, rejected in Taylor, whereby credit is accorded in relation to a charge not laid or perhaps even an offence not yet committed. I agree

with the decision in Jolly v Manager of Christchurch Prison⁴ and Gray v Manager, Waikeria Prison⁵ that the “proceeding” is a reference to the particular charge and subject to the limited expansion in s 91, begins with the charge being laid.

[17] As for the “holding charge” analogy, I consider Brandon to be different. There the two charges that were initially laid were later withdrawn in favour of a larger number of more focused charges. That is exactly what s 91(1) contemplates. I accept that here the police had the information about the second phone call at the time the first charge was laid. I do not know why no charge was laid, but obviously the Crown Solicitor later determined one should be. However, it is a separate charge about different offending on a different day. I do not accept it is at all the same as Brandon.

[18] I note for completeness that reliance was also placed on Maile v Manager, Mt Eden Corrections. Time does not permit me to consider whether it is distinguishable so I do not comment. I am satisfied my decision is consistent with Taylor, and with recent decisions of this Court.⁶

[19] Finally, I do not accept that Taylor can be distinguished because in that judgment, in passing, the Court noted a sentencing judge was not without options to avoid injustice. Mr Edgeler submits s 82 of the Sentencing Act 2002, which tells judges not to give credit for pre-trial remand when sentencing, alters the situation from what existed at the time of Taylor. In my view, even if it were so, it does not alter Taylor’s interpretation of the same words. However, several cases have noted

s 82 to not be that restrictive.⁷

[20] A different consideration, which in my view supports the strict interpretation approach, is the inability of the Prison Manager, acting on behalf of the Chief Executive, to undertake this exercise. Generally he or she will not have the information, and there is nothing in the Act to suggest a Prison Manager was meant

_{to make a qualitative assessment whether offences covered by a sentencing exercise}

⁴ _{Jolly v Manager of Christchurch Prison [2014] NZHC 1398.}

⁵ _{Gray v Manager, Waikeria Prison [2014] NZHC 1745, [2014] NZAR 864.}

6. Jolly, above n 4; Gray v Manager, Waikeria Prison, above n 5; and Kopara v The Manager, Mt Eden Corrections Facility [2012] NZAR 928.

⁷ Te Aho v R [2013] NZCA 47 at [17], and Gray, above n 5 at [26] are examples.

are part of the same “offending transaction” for pre-trial remand credit purposes. The Act contemplates a much more administrative process involving calculation governed by fixed identifiable dates.⁸

[21] It follows that I do not agree that Mr Marino has completed the second phone call sentence and he is not to be unlawfully detained. The application is declined.

_{Simon France J}

⁸ Similar observations made in Jolly, above n 4, at [26].