Appellant. THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

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1 IN THE COURT OF APPEAL OF NEW ZEALAND CA129/2016 [2016] NZCA 133 BETWEEN AND MICHAEL MARINO Appellant THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent Hearing: 4 April 2016 Court: Counsel: Judgment: Miller, Cooper and Kós JJ D A Ewen and G K Edgeler for Appellant D J Perkins and T P Westaway for Respondent 12 April 2016 at am Reasons: 15 April 2016 JUDGMENT OF THE COURT A B The appeal is dismissed. Counsel may file memoranda if any issue arises as to costs. REASONS OF THE COURT (Given by Miller J) [1] The appellant challenges the Department of Corrections calculation of his entitlement to credit for time spent in custody before sentencing. He seeks habeas corpus because he says he ought to have been released on 12 January MICHAEL MARINO v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2016] NZCA 133 [15 April 2016]

2 Corrections maintains that his release date has yet to arrive, so that he is lawfully detained. [2] The appeal turns on the meaning of s 90(2) of the Parole Act Corrections succeeded in the High Court, Simon France J holding that nothing had changed relevantly since this Court s decision in Taylor v Superintendent of Auckland Prison, 1 which was decided under predecessor legislation, the Criminal Justice Act Narrative [3] The appellant was arrested for offences of family violence on 11 February 2015 and remanded in custody. On 26 February and 6 March 2015 he made calls from prison telephones. Both were made to one of the complainants, B. The first call was intended to have her retract her own allegations, and the second to have B procure another complainant, S, to retract hers. On 11 March Corrections provided the police with recordings of the two conversations. [4] On 6 July 2015 the appellant appeared in the Hamilton District Court. By now he faced 12 charges, being 10 of family violence (assault and contravening a protection order) and two of attempting to pervert the course of justice. The perverting charges were specific to each of the two telephone calls; that is, they were not representative, nor was the second laid in substitution for the first. The first perverting charge had been laid on 18 March and the second on 19 June. [5] At the hearing on 6 July the appellant accepted a sentence indication of 22 months imprisonment with release conditions, and entered guilty pleas to all charges. The Crown invited Judge Spear to calculate cumulative sentences, but he declined, taking the view that it made no difference since the totality principle would apply to the sentencing. [6] Sentence was not passed until 27 October The sentences were 22 months imprisonment on the two charges of attempting to pervert the course of 1 2 Taylor v Superintendent of Auckland Prison [2003] 3 NZLR 752 (CA). Marino v Chief Executive of the Department of Corrections [2016] NZHC 459.

3 justice and 12 months imprisonment on all the other charges. 3 All sentences were concurrent. They were short-term sentences, meaning that the appellant must be released after serving 11 months. 4 Passing sentence, Judge Spear said: 5 Taking the attempts to pervert the course of justice, as the lead charges here I impose the indicated sentence of 22 months imprisonment. That is subject to standard and special release conditions that will apply for six months from your sentence expiry date which is fast approaching. The issue [7] Under the Sentencing Act 2002 judges do not, generally speaking, take pre-sentence detention into account when passing sentence. 6 Rather, credit for pre-sentence detention is calculated by Corrections under the Parole Act. Section 90(1) of that Act provides that for the purpose of calculating the offender s statutory release date he or she is deemed to have been serving the sentence during any period spent in pre-sentence detention: 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. [8] Pre-sentence detention is defined in s 91: 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 any charge on which the person was eventually convicted; or any other charge on which the person was originally arrested; or R v Marino [2015] NZDC Section 86(1) of the Parole Act R v Marino, above n 3, at [8]. Section 82 of the Sentencing Act 2002.

4 (c) any charge that the person faced at any time between his or her arrest and before conviction. [9] Section 90(2) provides that where the offender is subject to two or more concurrent sentences the amount of pre-sentence detention applicable to each must be calculated and deducted from that sentence: (2) When an offender is subject to 2 or more concurrent sentences, the amount of pre-sentence detention applicable to each sentence must be determined; and the amount of pre-sentence detention that is deducted from each sentence must be the amount determined in relation to that sentence. [10] When the appellant s counsel challenged Corrections about his release date, he was told that: any time spent in custody counts as time served only to the individual charge that it relates to. Each charge has a Judicial Proceedings Date (JPD) that is the date that the actual proceedings commence, usually when the person is charged On nine of Mr Marino s twelve sentences, the JPDs, as advised by the court, are 27 October 2015, crediting Mr Marino with 257 pre-sentence detention days on each. Another sentence has a JPD of 18 March 2015 giving 223 pre-sentence detention days. The remaining two sentences have JPDs of 19 June 2015 (Obstruct/Pervert the Course of Justice) and 6 July 2015 (Contravenes Protection Order) for which Mr Marino has been credited with 113 pre-sentence detention days. It is these last two sentences that determine his release date, being the sentences upon which he has the longest period to serve. [11] The respondent says that Corrections calculation is correct because the sentencing Judge imposed 12 sentences, one for each offence as the Sentencing Act requires, and the period of pre-sentence detention applicable to each of them ran (since the appellant was already in custody) from the date on which the relevant charge was laid. The legislation specifies that the only period of pre-sentence detention for which credit may be given is that pertaining to the particular charge. The second charge of perverting the course of justice was laid on 19 June 2015, so the appellant s ultimate release date is 18 May 2016 and he is lawfully detained.

5 [12] The appellant says the calculation is wrong. He contends that he is subject to a single sentence, comprising 12 charges, and is entitled to credit for pre-sentence detention served since his arrest on 11 February Accordingly, his statutory release date was 12 January 2016, meaning that he is now unlawfully detained. Mr Ewen submitted that: When there is a single sentencing on a number of charges, whether they are related in time or circumstance or not, they form the proceedings for the purposes of section 91(1), whether severally or as a consolidated whole. The use of the plural would allow for either interpretation. [13] He contended that this approach: is consistent with s 85 of the Sentencing Act, which requires sentencing judges to apply the totality principle when sentencing on multiple charges; and creates no risk of a prisoner claiming credit for completely unrelated offending, as was attempted in Taylor. 7 [14] Mr Ewen further submitted that if the respondent is correct: a prisoner s release date may vary considerably for reasons of sentence architecture. For example, cumulative sentences totalling 22 months would have operated as a notional single sentence and the appellant would have received credit for all the pre-sentence detention served. 8 He observed that the Crown had argued for cumulative sentences in this case but the Judge responded that it would make no difference once allowance was made for totality; a prisoner s release date may vary considerably according to decisions made by the Crown about whether, and when, to amend a charge notice. In this case, for example, the Crown knew on 11 March about the second telephone call but elected not to charge the second offence until June; 7 8 Taylor v Superintendent of Auckland Prison, above n 1. Section 75 of the Parole Act.

6 (c) where a prisoner was on bail before sentence there would be no pre-sentence detention to credit toward the sentence and he or she would serve the sentence intended by the sentencing judge in this case, 22 months for all of the offending. That being so, a provision designed to ensure that prisoners get credit for time already served actually increases the effective sentence. In this case it has the consequence that instead of being released in January 2016, 11 months after his arrest, the appellant will not be released until May; and (d) the outcome must be characterised as arbitrary detention, contrary to s 22 of the New Zealand Bill of Rights Act The legislation [15] This is a question of statutory interpretation. We have cited s 91(1) of the Parole Act above. It defines pre-sentence detention as detention that occurs at any stage during the proceedings leading to the conviction or pending sentence, whether that period relates to any charge on which the person was originally arrested, or eventually convicted, or which the person faced after arrest and before conviction. 9 [16] The definition requires that proceedings exist, but nothing turns on that; a proceeding will always be in train between charge and sentence. The important point is that the definition addresses detention associated with a single charge leading to the conviction and pending sentence. The definition captures the charge on which the person was originally arrested and eventually convicted; and also any holding charge that was laid originally but not pursued; and also any charge laid subsequently by way of amendment to or substitution for the original charge; and also any other charge, whether related to the original charge or not, that the person faced between arrest on the original charge and before conviction on the original charge. The last category extends to the situation, as in R v Coward and Hall, where the offender is arrested on the original charge and bailed but then arrested and 9 The detention must also be of a type described in subs (2) but no issue arises about that on this appeal.

7 remanded in custody on an unrelated charge before eventually being sentenced on the original charge. 10 [17] We have cited s 90(2) of the Parole Act above but repeat it for convenience: (2) When an offender is subject to 2 or more concurrent sentences, the amount of pre-sentence detention applicable to each sentence must be determined; and the amount of pre-sentence detention that is deducted from each sentence must be the amount determined in relation to that sentence. It will be seen that this provision deals with concurrent sentences, and requires that each be the subject of a separate pre-sentence detention calculation. By contrast, ss 90(3) and 75 together deem cumulative sentences to be a notional single sentence. [18] A sentencing court s power to impose concurrent or cumulative sentences is found in s 83 of the Sentencing Act, which provides: 83 Cumulative and concurrent sentences of imprisonment (1) A determinate sentence of imprisonment may be imposed cumulatively on any other determinate sentence of imprisonment that the court directs, whether then imposed or to which the offender is already subject, including any sentence in respect of which a direction of that kind is or has been given. (5) Any sentence of imprisonment may be imposed concurrently with any other sentence of imprisonment. [19] This language does not require that concurrent and cumulative sentences must all be imposed on the same occasion. On the contrary, the section contemplates that they may be imposed on different occasions; subs (2), for example, provides that a court may not impose a sentence cumulatively upon a sentence to which the offender is presently subject but which he or she is no longer serving. [20] Section 85 of the Sentencing Act applies when a court is considering imposing sentences of imprisonment on two or more offences. Subsection (1) 10 R v Coward and Hall CA182/87, 18 December See too Taylor v Superintendent of Auckland Prison, above n 1, at [15].

8 provides that the individual sentences must reflect the seriousness of each offence. Subsection (2) requires that cumulative sentences must not result in a total period of imprisonment that is wholly out of proportion to the gravity of the overall offending. Where, as in this case, the sentences are concurrent, subs (4) provides that: the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and each of the lesser offences must receive the penalty appropriate to that offence. [21] It will be seen that these provisions contemplate that each offence will be the subject of a discrete sentence. That reflects the way in which offences are charged. Under the Criminal Procedure Act 2011 a criminal proceeding is commenced by filing a charging document, and a charging document must contain only one charge, which must relate to a single offence. 11 [22] In this setting, we find the meaning of the parole legislation plain. Pre-sentence detention must be calculated for each separate concurrent sentence, and one of those calculations will establish the prisoner s release date. The definition of pre-sentence detention establishes a primary meaning, that of detention between arrest and sentence on the charge the subject of the calculation, but it also ensures that the prisoner gets credit for pre-sentence detention served on a holding charge or a charge laid by way of amendment or substitution for the original charge, and for detention on any other charges that the prisoner faced between arrest and sentence on the original charge. 12 [23] The position is otherwise if the judge elects to impose cumulative sentences. In that case s 90(3) will be engaged, and all the time spent in pre-sentence detention that is related to the notional single sentence will be deducted: (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 Criminal Procedure Act 2011, ss 14, 16 and 17. The appellant argued in the High Court that the second perverting charge was a related offence, but that argument was dismissed and it is not pursued here.

9 [24] The appellant s argument that proceedings mandates a single pre-sentence detention calculation for all offences sentenced at the same time confronts insurmountable difficulties: It requires that the term concurrent sentences have a different meaning in s 90 than it does in the Sentencing Act, pursuant to which the offender was subjected to those same sentences. In the Sentencing Act the term refers to separate sentences that are to be served concurrently. In s 90 it would have to mean all sentences imposed on a single occasion, unless cumulative. It requires that concurrent sentences be treated as a notional single sentence. As noted, the Parole Act provides for notional single sentences when providing for key date calculations for cumulative sentences. 13 Had the legislature meant to take the same approach for concurrent sentences it would have said so. (c) In order to avoid the problem that prisoners might claim credit for time spent in detention on wholly unrelated offending, it adopts a distinction between sentences imposed on a single occasion and those imposed on separate occasions. The legislation does not support that distinction; as noted, concurrent or cumulative sentences need not all be imposed on the same occasion. (d) It could result, as Mr Perkins pointed out, in an offender getting credit for time spent in custody before he or she had committed the offence to which the credit would be attached. That would happen where the lead offence was committed after the initial arrest and all offences were sentenced on the same occasion. In this case, for example, the appellant would get credit on the perverting charges for time served since his arrest on 11 February, but he did not commit those offences until 26 February and 6 March respectively. 13 The term key dates is defined to include release dates at s 4(1) of the Parole Act.

10 [25] Mr Ewen argued that his construction is necessary to achieve the legislative objective and to avoid the arbitrary consequences mentioned at [14] above. We accept that the legislature intended to ensure that prisoners receive credit for pre-sentence detention on a given charge, but we do not accept that its object extended to credit for pre-sentence detention on other charges, except where the definition of pre-sentence detention so provides. We think rather that, as Courtney J put it in Maile v Manager, Mt Eden Correctional Facility: 14 The purpose of limiting credit for pre-sentence detention time to time relating to the charge on which the accused is ultimately convicted is to ensure that offences do not go unpunished through the ability of prisoners to use completely unrelated pre-sentence detention as a means of avoiding imprisonment on other charges (including, even, offences not yet committed at the time of the pre-sentence detention). [26] The argument that the legislature cannot have intended to cause arbitrary consequences rests on the premise that there is nothing a sentencing court can do about the anomaly that may result when a charge laid after arrest turns out to be the lead offence under s 85(4) of the Sentencing Act. Section 82 provides that when determining the length of any sentence of imprisonment a judge may not take into account any period during which the offender was on pre-sentence detention as defined in s 91 of the Parole Act. Mr Ewen contended that s 82 prohibits a sentencing judge from taking any pre-sentence detention, on whatever charge, into account when passing sentence. The section provides that: 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 [27] There are two responses to that contention. The first is that sentencing judges may impose totality-adjusted cumulative sentences: as noted at [23] above, these cause no difficulty under s 90. The second is that the Court has previously indicated, in a sentencing context, that s 82 does not necessarily preclude consideration at sentencing of the effects that remand may have had in a particular case. 15 The Maile v Manager, Mt Eden Correction Facility [2012] NZAR 39 (HC). Ropiha v R [2013] NZCA 60 at [27].

11 Court said the effects of remand would need to be unexpected and unusual to merit any recognition, but we would not preclude it if such a case arose. 16 [28] It is arguable that this interpretation of s 82 is too narrow because neither s 82 nor the Sentencing Act more generally expressly preclude a judge from taking into account pre-sentence detention for which the offender will not get credit under s 90 when the release date is calculated. If that were correct then, by way of illustration, when sentencing on the second perverting charge Judge Spear could not have taken into account the period between 19 June and sentencing, but he could have taken into account the period between arrest on 11 February and the laying of that charge. In Gray v Manager, Waikeria Prison, a habeas corpus application aimed at a Corrections release date calculation, Brewer J considered that the period not within the definition of pre-sentence detention could be taken into account. 17 [29] This argument would require re-examination of several decisions of this Court on sentence appeals that approach pre-sentence detention in a more general way. 18 Our conclusions about s 90 suggest the Court should undertake that exercise, but we need not do so to dispose of this appeal. Habeas corpus is also not the appropriate forum in which to settle the meaning of s 82, or to decide whether the appellant s sentence was manifestly excessive through failure to recognise pre-sentence detention for which the appellant would not get credit under s 90 of the Parole Act. We record that at the hearing we suggested a sentence appeal. Other matters [30] Mr Ewen placed much weight on this Court s decisions in Attorney-General v Manga and R v Coward and Hall, and sought to explain and distinguish Taylor v Superintendent of Auckland Prison. 19 We adopt the analysis of Taylor that At [27]. Gray v Manager, Waikeria Prison [2014] NZHC 1745, [2014] NZAR 864 at [26]. They are Te Aho v R [2013] NZCA 47; Booth v R [2015] NZCA 603; Costello v R [2015] NZCA 512; and Kahui v R [2013] NZCA 124. The Supreme Court granted leave to Mr Kahui in Kahui v R [2013] NZSC 49 but the appeal was not pursued. Attorney-General v Manga [1999] 1 NZLR 129 (CA); R v Coward and Hall, above n 10; and Taylor v Superintendant of Auckland Prison, above n 1.

12 Simon France J employed in this case. 20 discuss the authorities or the legislative history. Beyond that, we do not find it necessary to Decision [31] The appeal is dismissed. Counsel may file memoranda if any issue arises as to costs. Solicitors: Kerry Burrows, Hamilton for Appellant Crown Law Office, Wellington for Respondent 20 Marino v Chief Executive of the Department of Corrections, above n 2, at [13] [15].