IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-269 [2015] NZHC 1001

BETWEEN	SHANE EDWARD HAWKINS
Applicant	

AND	
CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS
Respondent	

Hearing:	11 May 2015	

Appearances:	
A Bailey for Applicant
C J Lange for Defendant	

Judgment:	
12 May 2015	

JUDGMENT OF MANDER J

[1]       Mr Hawkins has filed an application for a writ of habeas corpus ordering his

immediate release from Christchurch Men’s Prison.

Background

[2]       On 30 January 2015, Mr Hawkins was sentenced to four months and 14 days home detention in respect of several charges, including possession of an offensive weapon, wilful damage, assault, and threatening grievous bodily harm.

[3]       On 20 March, he was arrested for breach of his home detention conditions pursuant to s 80S(a) of the Sentencing Act 2002 .  Subsequently, an application to cancel the home detention sentence and substitute it with a sentence of imprisonment was filed by a probation officer pursuant to s 80F(1) of the Sentencing Act.

[4]       Mr Hawkins was the subject of a series of remands in custody, at least from
2 April 2015, pending determination of this application.  On 30 April, his sentence of home  detention  was  cancelled  and  a  sentence  of  two  months  imprisonment

HAWKINS v CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS [2015] NZHC 1001 [12 May
2015]

substituted.  I have viewed a copy of the warrant of commencement relating to his sentence. The period spent on remand is certified in the warrant as being nil days.1

Issues

[5]       The grounds for Mr Hawkins’ application were originally confined to an argument that the period he was detained in custody pending the determination of the application to cancel his sentence of home detention should be counted as pre- sentence detention for the purposes of s 90 of the Parole Act.  In the course of oral argument, however, Mr Bailey on his behalf developed an alternative argument. This was based on the period spent on remand before the imposition of the original sentence of home detention.   It is therefore necessary to examine each of these periods separately and their respective effect on the calculation of Mr Hawkins’ release date.

The period pending determination of the application to cancel the sentence of home detention

[6]       Section 86(1) of the Parole Act 2002 provides that the release date of an offender sentenced to a short-term sentence of imprisonment is the date on which the offender has served half the sentence.   It is not disputed that Mr Hawkins was sentenced to a short-term sentence, being a determinate sentence of 24 months or
less.2

[7]       Mr Hawkins submitted that pursuant to ss 90 and 91 of the Parole Act, the period he was remanded in custody pending the hearing of the application to cancel and  substitute  his  sentence  of  home  detention  is  deemed  to  be  time  served. Mr Hawkins, by the date of his application for a writ of habeas corpus, has spent over a month in custody if the period pending the cancellation of his home detention sentence and the period post the imposition of the sentence of imprisonment  is
combined.  It was submitted on his behalf that he is now being unlawfully detained.

1	Parole Act 2002, s 92.
2	Sections 4 and 86(1).

Analysis

[8]     Determination of Mr Hawkins application for habeas corpus requires examination of the inter-relationship of the relevant provisions of the Sentencing Act and the Parole Act.

[9]       Section 80F(4)(d) of the Sentencing Act provides that application can be made by a probation officer to cancel a sentence of home detention and substitute any other sentence (including another sentence of home detention) that could have been imposed on the offender at the time the offender was convicted of the offence for which the sentence was imposed. This is what occurred in Mr Hawkins case.

[10]     Section 80G(2) of the Sentencing Act provides:

80G	Matters relating to orders under section 80F

…

(2)        When determining a substitute sentence under section 80F(4)(d), the court must take into account the portion of the original sentence that remains unserved at the time of the order.

Section 80ZB reads as follows:

80ZB   Time ceases to run in certain circumstances

For the purpose of calculating how much time an offender who is subject to a sentence of home detention has served,—

(a)        time  ceases  to  run  on  the  sentence  during  any  period between  the  date  on  which  an  application  under  section
80F(1)(a) is lodged and the date on which the application is determined by the court; but

(b)        some  or  all  of  the  period  between  those  dates  may  be regarded by the court as time served, as the court thinks appropriate in the circumstances, after taking into account—

(i)	the  extent  (if  any)  to  which  the  offender  has complied with any detention conditions; and

(ii)	the amount of time (if any) that the offender has spent in custody.

Section 80Z provides:

80Z	When home detention ends

(1)        An offender ceases to be subject to a sentence of home detention when—

(a)        the offender reaches his or her detention end date; or

(b)         a court cancels the sentence of home detention.

…

Section 82 provides:

82       Pre-sentence detention must not be taken into account in determining length of sentence

In determining the length of any sentence of imprisonment to be imposed, the court must not take into account any part of the period during which the offender was on pre-sentence detention as defined in section 91 of the Parole Act 2002.

Section 90(1) of the Parole Act 2002 provides:

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.

Pre-sentence detention is defined in s 91(1) of the Parole Act as follows:

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.

…

[11]     A  type  of  detention  that  constitutes  pre-sentence  detention  includes  a detention on remand pursuant to a Court order in a prison.3   Mr Hawkins submitted that time ceased to run on his sentence of home detention between the date on which the application to cancel and substitute that sentence was lodged and the date on which that application was determined by the Court.  He submitted that his detention during that period constituted pre-sentence detention under s 91 of the Parole Act, it
being detention in a prison pending sentence.

[12]     In reply, the Chief Executive of the Department of Corrections (the Chief Executive) submitted that the period of pre-sentence detention under s 91 must relate to a charge.   He relied on R v Te Aho as authority for the proposition that the deduction for time spent in pre-sentence detention is limited to the sentence for an offence to which that detention related, and that not all time on remand will qualify as pre-sentence detention.4

[13]   The Chief Executive submitted that the time spent on remand pending determination of an application for cancellation of a sentence of home detention is not “pre-sentence detention”.  He referred to s 80G(2) of the Sentencing Act which requires the Court, when determining a substitute sentence on an application to cancel a sentence of home detention, to take account of the portion of the sentence unserved.   Furthermore, s 80ZB enables the Court to consider the period spent in custody between the date of application and its determination in calculating the time served on a sentence of home detention.

[14]     The effect of these provisions is that the Court, when imposing a substitute sentence pursuant to s 80F, may have regard to the period spent in custody pending the determination of the application.   This is to be compared with s 82 of the Sentencing Act, which prohibits the Court from taking into account any part of the period during which the offender was in pre-sentence detention, as defined in s 91 of
the Parole Act 2002.   Calculation of pre-sentence detention when determining an

3	Section 91(2)(a).
4	R v Te Aho [2013] NZCA 47 at [15], [26]-[27]; R v Kahui [2013] NZCA 147 at [15].

offender’s release date is the statutory responsibility of the Chief Executive under the

Parole Act.5

[15]     The Chief Executive observed that inclusion of the period spent in detention pending the determination of an application under ss 80F and 91 of the Parole Act as pre-sentence detention would result in the potential duplication of credit for the period spent on remand.

Decision

[16]     I am satisfied that the period spent in custody between the date of application and its determination does not constitute pre-sentence detention for the purpose of calculating release dates under ss 90 and 91 of the Parole Act.   I accept the Chief Executive’s submission that the legislature has provided specific provisions in the Sentencing Act to govern the status of this period in terms of how it is to be treated for the purpose of imposition of a substitute sentence.  That period may be taken into account by the Court when determining the length of any substitute sentence.

[17]     I am fortified in this view by the effect of s 80Z of the Sentencing Act.  While time ceases to run on the sentence of home detention after an application has been lodged under s 80F(1)(a), the offender continues to be subject to the sentence until the Court cancels the sentence of home detention.  It follows therefore that s 91(1) of the Parole Act does not have application, as the detention does not occur at a stage during the proceeding leading to the conviction or pending sentence.  The offender remains sentenced to home detention pending the outcome of the application to cancel  and  substitute  that  sentence.     Section  91(1)  therefore  does  not  have application to that period, and cannot constitute pre-sentence detention for the purposes of s 90 of the Parole Act.

The period spent on custodial remand before the imposition of the original sentence of home detention

[18]     That finding, however, does not dispose of Mr Hawkins application.  As an alternative argument, presented orally on his behalf by Mr Bailey, reliance was

5	Parole Act 2002, ss 88 and 90.

placed on the period that Mr Hawkins is said to have spent in custody during the period of the proceedings leading to his conviction, or pending his original sentence of home detention.  This was in respect of the same charges for which a substitute sentence of imprisonment was imposed after cancellation of his home detention.

[19]     An application under s 80F(4)(d) of the Sentencing Act requires, in the event of cancellation of the original sentence of home detention, the substitution of any other sentence that could have been imposed on the offender at the time the offender was convicted of the offence for which the sentence was imposed.   In the present case, the substitute sentence imposed was one of two months imprisonment.

[20]     The Sentencing Act addresses the approach to be taken by the Court when imposing a substitute sentence under s 80F.  Unsurprisingly, given the purpose of the Sentencing Act, it is silent as to the status of any previous period of remand in custody on the same charge(s) in respect of which the substitute sentence is imposed. There is no reason why s 82 of the Sentencing Act does not have application.  The Court is, accordingly, prohibited when determining the length of any substitute sentence of imprisonment from taking into account any period of pre-sentence detention.

[21]     The provisions of the Parole Act, including ss 90 and 91, are to be applied in the normal way to the substitute sentence of imprisonment.  Section 90(1) deems, for the  purpose  of  calculating  an  offender’s  statutory  release  date,  any  period  the offender has spent in pre-sentence detention to have been serving the sentence.  The definition of pre-sentence detention provided by s 91 includes detention in a prison that occurs at any stage during the proceedings leading to the conviction, or pending sentence of the person in relation to any charge on which the person is eventually convicted.

[22]     The  sentence  of  imprisonment  imposed  in  substitution  for  the  original sentence of home detention relates to the original charges for which Mr Hawkins was, I am advised, originally remanded for a period in custody.   That period of detention was during a stage of the proceedings leading to his subsequent conviction, or pending his sentence in relation to those charges.

[23]     I  therefore  conclude  that,  notwithstanding  the  intervening  application  to cancel and substitute the original sentence of home detention, Mr Hawkins, when the substitute sentence of imprisonment was imposed, became subject to a sentence of imprisonment in respect of charges on which he had spent a period of pre-sentence detention.  It follows therefore that ss 90 and 91 of the Parole Act have application to the  calculation  of  his  release  date  in  respect  of  the  sentence  of  imprisonment imposed in substitution of the original sentence of home detention pursuant to s 80F of the Sentencing Act.

[24]     I do not overlook the likelihood that, in imposing the original sentence of home detention, the sentencing Court may well have taken into account the period spent on remand in setting the length of the home detention sentence.  However, the approach taken by the sentencing Court, at that stage, cannot effect the meaning and effect of the Parole Act which now has application as a result of the subsequent imposition of a substitute sentence of imprisonment.

[25]     While  I  have  accepted  Mr  Hawkins  alternative  argument,  it  does  not necessarily follow that he is entitled to a writ of habeas corpus.   There are two outstanding matters.

[26]     Firstly, while Mr Bailey advised from the bar that Mr Hawkins had originally been subject to a period of remand in custody prior to his conviction, or pending his sentence to home detention on the charges in respect of which he was ultimately sentenced to a substitute sentence of imprisonment, the Court has not received any evidence of the actual position.   Nor has the Court received confirmation of the charges to which the pre-sentence detention related to.  Furthermore, it may be that the  Chief  Executive  has  taken  into  account  the  period  spent  on  remand  by Mr Hawkins pending his original sentence in the calculation of his release date.

[27]     Under s 14(1) of the Habeas Corpus Act 2001, it is for the Chief Executive to establish that the detention of the detained person is lawful.   In the absence of establishing that the detention is lawful, this Court must grant, as a matter of right, a writ of habeas corpus ordering the release of the detained person from detention. There is no issue that Mr Hawkins is subject to a valid warrant of detention.  The

issue that arises is the interpretation and application of the provisions of the Sentencing and Parole legislation to Mr Hawkins circumstances, and the effect that has on the calculation of his release date.

[28]     I have dismissed Mr Hawkins original argument, which were the grounds upon which he gave notice of his application.  His alternative argument relating to the earlier remand period I have accepted, however, as observed, it presently lacks a firm evidential or factual matrix.  The Chief Executive, in the absence of notice of this argument, which was only raised orally during the course of the hearing, should be afforded  the opportunity to  make inquiries  regarding  Mr Hawkins’ custodial history.   This is necessary in order to determine whether he can establish that Mr Hawkins’ detention is lawful, in light of my decision regarding the application of ss
90 and 91 of the Parole Act.   It may be that the Chief Executive’s calculations of Mr Hawkins’ sentence does not differ from the Court’s approach to the application of s 90 of the Parole Act.

[29]     Secondly, Mr Hawkins, as a result of his non-compliance with the original sentence of home detention, is presently charged with breaching his home detention conditions, that offence carries a maximum penalty of one year imprisonment and/or a fine of up to $200.6    I understand that, to date, he has been refused bail on that charge, and he is presently remanded in custody.  That is perhaps unsurprising, given that  he  remained  subject  to  the  home  detention  sentence  and  the  subsequent
substitute sentence of imprisonment imposed after the cancellation of that sentence. However, while he is on remand in custody on that charge pursuant to a valid warrant for his detention, a writ of habeas corpus cannot issue.

[30]     Accordingly,  I adjourn  Mr Hawkins  application  pending inquiries  by the parties regarding details of Mr Hawkins original custodial remand and the charges to which it related.  There will also need to be clarification of Mr Hawkins custodial status as it relates to the charge of breaching his home detention conditions under
s 80S of the Sentencing Act.

6	Sentencing Act 2002, s 80S.

[31]     Given the nature of the application there is an obvious urgency to have the matter finalised.  I direct counsel to liaise with the registry regarding a suitable time and date for the hearing to reconvene, if that is considered necessary.  Alternatively, if counsel are agreed as to the present position consequent on my findings, they may file a joint memorandum.

[32]     Finally, I note the Chief Executive’s submission that the appropriate course for Mr Hawkins to have followed in challenging the calculation of his release date was to make application under s 92(4) of the Parole Act.   Section 92 provides a process whereby an offender can dispute the record of a person in charge of a prison regarding the period for which the offender is to be detained.  Under s 14(1A)(b) of the Habeas Corpus Act, the High Court can refuse an application for habeas corpus if such application is not the appropriate procedure for considering the allegations made by the applicant.

[33]     While Mr Hawkins’s argument is essentially one that goes to the calculation of his release date, it involves the interpretation of provisions of the Sentencing and Parole Acts, and involves issues that go beyond simply the accuracy of the record. The availability of this administrative process of review does not, in the circumstances,  render  Mr Hawkins’  application  for  a  writ  of  habeas  corpus inappropriate, notwithstanding that ultimately under s 92(4) an offender may appeal to the Court if dissatisfied with the outcome of any review of the accuracy of the record of the offender’s custodial details.

Solicitors:
Andrew Bailey, Christchurch
Raymond Donnelly & Co, Christchurch