Terata v Chief Executive, Department of Corrections

[2018] NZHC 2887

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2453

[2018] NZHC 2887

UNDER

the Habeas Corpus Act 2001

BETWEEN

SYD TERATA

Applicant

AND

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

7 November 2018

Appearances:

Applicant in person

M J Mortimer for the respondent

Judgment:

7 November 2018

ORAL JUDGMENT OF JAGOSE J

Parties / Solicitors:

The Applicant, C/o Auckland Regional Prison, Albany

M J Mortimer, Meredith Connell, Office of the Crown Solicitor, Auckland

TERATA v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2018] NZHC 2887 [7 November 2018]

[1]    Syd Terata applies for a writ of habeas corpus.1 It is opposed by the Chief Executive of the Department of Corrections.

[2]    Mr Terata is currently a prisoner. He seeks his immediate release on the basis he is being held unlawfully. He says his sentence release date expired sometime in May or June this year, once his pre-trial or pre-sentence detention properly is considered.

Background

[3]    The background is Mr Terata was sentenced to a term of two years and six months’ imprisonment, to expire on 22 August 2018. Before that sentence expired, he assaulted someone else in prison.

[4]    The sentencing for the second offending took place on 26 September 2018, 35 days after the first sentence expired. During the intervening period, Mr Terata was detained in custody.

[5]    Mr Terata received a sentence of one year,  two months and 14 days’ imprisonment for the assault charge. The warrant of commitment is express the second sentence is “cumulative” on the first, and so begins on its “expiry”. Thus the second sentence commenced on 22 August 2018.

[6]    Once the 35 days are properly subtracted from the second sentence, Mr Terata’s sentence end date will be 4 November 2019. (Although, as a short term of imprisonment, his actual release date should be 29 March 2019, some four months from now.)2

Discussion

[7]    Mr Terata’s argument, set out in his handwritten application, is premised on a misunderstanding.

1      Habeas Corpus Act 2001, s 6.

2      Parole Act 2002, s 86(1).

[8]    He says all the time between the assault (or when the charge was laid) and his sentencing for that assault should be counted as his pre-trial or pre-sentence detention and credited against his second sentence. That is wrong.

[9]    Section 91 of the Parole Act 2002 excludes from the meaning of ‘pre-sentence detention’ instances of detention, where the offender is “under legal custody in accordance with the Corrections Act 2004 and serving a sentence of imprisonment”.3

[10]   The Booth v R case referred to in the application (under its second appellant’s name, “Marino”) does not relate to circumstances where a prisoner is already serving a sentence, and a second sentence is imposed independently of the first.4 So it offers no assistance here.

Result

[11]   It follows Mr Terata is detained under a valid warrant signed by a Judge. His writ of habeas corpus accordingly is declined.

—Jagose J

3      Parole Act 2002, s 91(5)(a).

4      Booth v R [2016] NZSC 127.