(SC 13/2005) [2005] NZSC 26

PRESS SUMMARY

This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at Judicial Decisions of Public Interest www.courts.govt.nz/judgments.

The Supreme Court has dismissed Mr Morgan’s appeal against refusal by the High Court and the Court of Appeal of a writ of habeas corpus directed to the Superintendent of Rimutuka Prison where he is being held.

Between the time when Mr Morgan was charged with cultivation of cannabis and the time when he was convicted and sentenced to three years imprisonment, the Sentencing Act 2002 and the Parole Act 2002 had replaced the Criminal Justice Act 1985.

If Mr Morgan had been dealt with under the 1985 Act he would have been entitled to conditional release after serving two years of his sentence, in November last year. The Parole Act now requires the serving of the full term in prison unless the Parole Board decides to order release, which it has not done in Mr Morgan’s case.

Mr Morgan argued that the right given by s 6 of the Sentencing Act, where the penalty for an offence has been varied between the commission of an offence and sentencing, to the benefit of the “lesser penalty” – a provision which applies “despite any other enactment or rule of law” – is being infringed.

In a 4 – 1 majority judgment, with the Chief Justice dissenting, the Court has held that “penalty” in s 6 is referring to the maximum penalty for the offence, which for cultivation of cannabis is 7 years, and has not been varied, and that Mr Morgan’s right to the benefit of the lesser penalty has not therefore been infringed.

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