Amicus Curiae: “I did my waiting. 12 years of it. In Azkaban!” – The Department of Corrections and the Prison Sentence Blunder

By Jasper Lau

In a surprising decision that occurred this week, the Supreme Court of New Zealand held that two inmates had been kept in jail longer than they should have been. Our highest Court ruled that the Corrections Department have made mistakes in calculating the release dates for the two inmates, and have been misinterpreting the law since 2003. The case has generated controversy and is likely to have a ripple effect for thousands of prisoners.

The Case and the Subsequent Effects

The case held that Corrections had misinterpreted the Parole Act 2002 (the Act) in some instances, resulting in wrongful calculations of parole and release dates for many prisoners. The case involved two offenders Mr Marino and Mr Booth, who were seeking appeals relating to the manner in which their pre-sentence detentions were calculated by Corrections. The time both men spent at jail on remand for earlier crimes were not credited by Corrections to the subsequent sentences the men received whilst in detention. Instead, Corrections interpreted section 91(1) of the Parole Act 2002 on a charge by charge basis which was inconsistent with the provisions found within the act.

In Mr Booth’s circumstances, he was remanded in custody in July 2012 for offending against ‘A’. But in May 2013, he was also charged with offending against ‘B’. The Court imposed a concurrent sentence of 11 years and 9 months in totality of both offending. However, Corrections relied on earlier authority to calculate the sentence from May 2013 onwards and treated the 10 months period between July and May (whilst Booth was remanded) as not part of the pre-sentence detention. Effectively, this would have meant Mr Booth had received a sentence for 12 years and 7 months, instead of the 11 years and 9 months that was actually imposed by the Court. The Court ultimately found that this 10 month period should have been counted for the purposes of sections 91(1) of the Act because the definition encompasses the “whole of the court process or processes from the original remand in custody on any charge up to the imposition of a sentence (or sentences) of imprisonment.”

In reaching this outcome, the Court also noted further factors in support of their decision. Firstly, section 92 of the Act, which discusses record keeping, does not require separate record keeping for cumulative or concurrent sentences for prisoners with different sentences. Section 92(1)(b) requires a calculation in aggregate of the total period the person is subsequently detained before sentencing – therefore it should not matter whether subsequent sentences are ‘related’ to the original charge or not. Secondly, the majority noted that the policy behind the calculation of pre-sentence detention was designed to be kept as simple and certain as possible. A third factor as noted by William Young J, was that the legislative history of the Act did not suggest a departure from the earlier Criminal Justice Act 1985 in interpreting sections 91 to to meaning of pre-sentencing detention. To this effect, it was consistent to read the full extent of their pre-sentence detention as being counted for time served. The final consideration given by the Court, was that the current calculations from Corrections were contrary to sections 22 of the New Zealand Bill of Rights Act. Section 22 provides that everyone has the right not to be arbitrarily arrested or detained. The current interpretation meant that the credit given to detention was based on arbitrary chance and depended on when the police chose to lay the second charges.

In summary, both men deserved credit for time served in pre-sentence sentence and that the current calculations by Corrections were misapplied.

Controversy and Compensation

Further controversy has arisen out of the decision following several statements made by Minister of Corrections, Judith Collins. Collins claimed that the Court’s new interpretation did not align with the way her department or the Court of Appeal had previously understood the Parole Act to operate. She argued Corrections acted in good faith and would defend any compensation claims ‘rigorously’. Whilst the Minister claims to not be a proponent of retrospective legislation, she did not rule out the possibility for the government to amend the Parole Act.

As University of Otago law professor Andrew Geddis explains, the problem here is that the Minister appears to be disregarding the principle that when an earlier decision is overruled by a higher authority, the law has not been changed but is simply deemed to have existed in that form all along. According to this position, our legal system operates irrespective of any concern about the retrospective impact that a change in judicial position may have on previous decisions. Simply put, the decision in Booth means that Corrections had no legal authority to detain these people, even if Corrections were to argue that they had relied on previous Court of Appeal authority for their detainment.

Douglas Ewen, lawyer for Michael Marino, argued that compensation from the Government is warranted for his client and that potentially hundreds of other prisoners. However it could be possible for the prisoners negatively impacted by Corrections’ mistake to bring claims against Corrections for the tort of false imprisonment, as demonstrated by the case of B v Governor of Brockhill Prison, ex parte Evans (no 2). Although this is a possible avenue, Ewen notes this could be potentially affected by the Limitation Act 2010.

It remains to be seen whether the Government, or the Department of Corrections, will provide the wronged prisoners with compensation.

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