Corrections sentences incorrect, court rules

Eighteen inmates have been released from prison following a landmark court ruling that found a discrepancy in how sentences were being calculated.

The Appeal Court ruling was sparked by the jailing of a drink driver who had her sentence of home detention substituted for one of jail after she cut off her electronic bail bracelet.

Belinda Sutherland had served one month of a five-month sentence of home detention when she was caught in late July, 2017.

She spent two months in custody before appearing before Judge Lance Rowe in Palmerston District Court and having her sentence substituted for one of 16 months in jail.

In arriving at the sentence, Judge Rowe had assumed that the Corrections Department had taken into account the two months that Sutherland had spent in custody.

But Corrections was following a policy, supported by a number of High Court decisions, that it was up to the judge to recognise the time spent in custody between an application to cancel or vary a sentence and the determination of that application.

In mid-December 2017, Sutherland applied to the High Court, claiming she had been unlawfully detained. Her application was heard by Justice Rebecca Ellis.

Corrections said the error had been made by Judge Rowe. Sutherland and her lawyer Douglas Ewen disagreed. They said it was up to Corrections to calculate the correct release date.

All parties agreed that Sutherland should be released. Justice Ellis found that Corrections had made a legal error by failing to take the two months into account, and that Sutherland should have been released in late November 2017, three weeks prior to the hearing.

But Ellis agreed there were legal issues that needed to be resolved and it was agreed that the matter should be the subject of a judicial review at a future date.

Corrections appealed Ellis’ decision. The appeal was heard in the Court of Appeal in November last year and the court released its decision last month.

The complex 24-page decision looked at whether it was the responsibility of a sentencing judge to take the period in custody into account when substituting a sentence, or Corrections to take it into account when setting an end date.

The decision noted there had been two different approaches and that Sutherland had been caught between the two. The decision noted the various ways in which sections of the Sentencing Act and Parole Act may be interpreted when it came to time served prior to sentence.

But the court said they could be reconciled and that it was Parliament’s intention that all pre-sentence detention was to be taken into account by Corrections, and that sentencing directions should be as simple and certain as possible to administer.

‘‘Essentially, the position adopted by Corrections is at odds with that general approach and creates complexity,’’ it said.

Corrections deputy national commissioner Andy Milne said 18 people had had their statutory release date brought forward as a result of the decision.

Milne said where an offender had been remanded in custody prior to re-sentencing following the cancellation of their community sentence, it had been unclear as to whose responsibility it was to take that time into account in determining how long the person should spend in prison.

As a result of the decision the department had been recalculating and verifying statutory release dates for prisoners and sentence end dates for offenders in the community to ensure that prisoners are not detained unlawfully and offenders in the community are not subject to conditions for longer than they are required to be.

Seventeen prisoners had release dates brought forward to be released by the end of December 24, 2018. One further prisoner was released on December 31.

Ewen said he accepted that Corrections’ position had been supported by two High Court judgments from 2015 and 2017.

‘‘However, when the High Court released its judgment in Ms Sutherland’s case, Corrections continued to apply the older cases, in the face of the errors of approach Ellis J’s decision identified in the previous decisions. Two further High Court judgments followed the ruling in Sutherland, yet Corrections still adhered to the previous case law. This borders on recklessness,’’ he said.

Sutherland would be applying for compensation for the three weeks she was wrongly held in custody. The Appeal Court quashed Justice Ellis’ decision not to award costs to Sutherland.

‘‘Essentially, the position adopted by Corrections is at odds with that general approach and creates complexity.’’