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The Human Rights Committee,
established under article 28 of the International Covenant on Civil and
Political Rights,
Meeting on 22 July 2008,
Adopts the following:
DECISION ON ADMISSIBILITY
1. The author of the communication, initially dated 7 April 2006, is Ronald
van der Plaat. He claims to be a victim of violations by New Zealand of
article 9, paragraphs 1 and 4; article 15 and article 26 of the Covenant. He
is represented by counsel, Mr. Tony Ellis.
THE FACTS AS PRESENTED
2.1 On 18 October 2000, the author was found guilty by a jury of two
representative charges of rape, one representative count of indecent assault
and three representative counts of unlawful sexual connection committed
against his daughter, spanning a ten year period. He was sentenced to a
total of fourteen years imprisonment. In the light of evidence described in
the Court of Appeal as "overwhelming", he withdrew an appeal against
sentence on the advice of his then counsel on the ground that it had no
chance of success, and instead appealed against his sentence only on the
ground that it was manifestly excessive considering his advanced age, at the
time of sentence, of 66 years. The Court of Appeal dismissed the appeal on 1
August 2001 stating that the author's age had been expressly taken into
account as a mitigating factor. His appeal to the same court against the
conviction was withdrawn on the advice of his then counsel that it had no
chance of success.
2.2 At the time of the author's conviction and sentence, the applicable
terms of the Criminal Justice Act 1985 entitled the author to release on
conditions after serving two-thirds of his sentence, that is, on 18 February
2009 after having served nine years and four months of the 14 year sentence.
2.3 After both the commission of the offences (August 1983-October 1992) and
the author's conviction and sentence (2000-2001), the relevant provisions of
the Criminal Justice Act 1985 governing both sentencing and release were
repealed and replaced with the Sentencing Act 2002 and the Parole Act 2002,
which entered into force on 30 June 2002.
2.4 Under the old provisions, prior to 30 June 2002, which remained
applicable to the author, an offender was entitled to be released after
serving two-thirds of a determinate sentence (unless release was postponed
due to prison disciplinary offences, or an order was sought that a full term
of imprisonment be served). Under the new provisions, after 30 June 2002,
there would be eligibility for parole, where a minimum term of imprisonment
had been imposed, after two-thirds of that term had been served; if no
minimum term was imposed, eligibility for parole would accrue after
one-third of the sentence had been served.
2.5 Were that latter rule applied to the author, he contends that he would
have been eligible for parole four years and eight months earlier than under
the previous legislation, that is, on 18 June 2007. The Sentencing Act and
the New Zealand Bill of Rights Act both contain the right to a lesser
penalty if the penalty for an offence is reduced between the time of
commission of the offence and sentencing.
THE COMPLAINT
3.1 The author claims that the facts disclose violations of article 9,
paragraphs 1 and 4; article 15 and article 26 of the Covenant. The principal
claim is that the sentencing regime applied to him breaches articles 15 and
26, and that in consequence his detention is arbitrary in breach of article
9, paragraphs 1 and 4.
3.2 With regard to the claim under article 15, the author argues that the
lighter penalty provided by the 2002 Act subsequent to the commission of the
offence should have been applied to him. He considers that minimum
non-parole periods are "sentences" and that this is confirmed by the wording
contained in the Sentencing Act 2002. He acknowledges that there is relevant
jurisprudence by the Committee, but invites it to adopt a "purposive
approach" to the application of article 15(1) andto apply in particular a
broad interpretation of the term "penalty".
3.3 The author notes that the Committee's jurisprudence provides little
guidance on the matter, as the two cases which squarely raised the current
point were resolved on other grounds. In Van Duzen v Canada, [FN1] the
author was released on mandatory supervision rather than serving a full
term, while in MacIsaac v Canada [FN2] the author had failed to prove that
retroactive application of more liberal parole laws would have resulted in
his being released earlier. Nor does academic commentary offer guidance.
[FN3]
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[FN1] Communication No. 50/1979, Views adopted on 18 May 1979.
[FN2] Communication No. 55/1979, Views adopted on 14 October 1982.
[FN3] Opsahl, T., and De Zayas, A.: "The Uncertain Scope of Article 15(1) of
the International Covenant on Civil and Political Rights", [1983] Canadian
Human Rights Yearbook 237, at 243: "The precise scope of article 15(1)
remains to be clarified. Doubts persist as regards both its applicability in
time and stage of process, and the meaning of some its terms, such as
'offender', 'penalty' and 'lighter penalty'."
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3.4 With regard to article 26, the author claims that there is
discrimination between those offenders who were sentenced before 30 June
2002 (date of the entry into force of the Parole Act 2002) and those
offenders sentenced after that date.
3.5 By way of consequential violations, the author claims that, if breaches
of article 15 and 26 are found, his detention is necessarily arbitrary and
in breach of article 9; paragraphs 1 and 4.
3.6 As to the exhaustion of domestic remedies, the author claims that at the
time of the original dismissal of his appeal the only available option would
have been an appeal against sentence to the Privy Council, a form of appeal
which in 150 years had not been successful in such cases and would not have
been legally aided, and therefore futile.
3.7 With respect to the actual claim before the Committee, the author has
not pursued any claim before the courts. He refers to a May 2005 decision of
the Supreme Court of New Zealand, [FN4] interpreting section 6 of the
Sentencing Act 2006 which provides that anyone convicted of "an offence in
respect of which the penalty has been varied between the commission of the
offence and sentencing" has "the right ... to the benefit of the lesser
penalty". The Court concluded, by a majority, that a statutory change from a
regime of mandatory release on conditions (and subject to recall) after
two-thirds of sentence, to a regime of release after full sentence was not a
change in "penalty"; the penalty as prescribed by law for the underlying
conduct had remained unchanged. In light of this jurisprudence, the author
argues it would be futile to pursue an appeal to the Supreme Court to argue
for the meaning that he contends in this communication.
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[FN4] Morgan v The Superintendent of Rimuka Prison; judgment of 19 May 2005
(Elias CJ, Gault, Blanchard. Tipping and Henry JJ.)
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STATE PARTY'S SUBMISSIONS ON THE ADMISSIBILITY AND MERITS
4.1 By Notes verbales of 3 November 2006 and 6 March 2007, the State party
contested both the admissibility and merits of the communication.
4.2 The State party disputes that the author is a victim in terms of article
2 of the Optional Protocol, as it is in fact hypothetical and purely
speculative that the author will spend longer in prison as a result of
having been sentenced before the Sentencing and Parole Acts of 2002 came
into force. Firstly, under the new regime, the author would no longer have
been entitled to early release after two-thirds of sentence, but only been
eligible for parole after two-thirds of an imposed minimum sentence (had the
sentencing judge exercised the power of imposing a minimum sentence), or
alternatively after having served one-third of the actual sentence imposed.
Secondly, there is no guarantee that the Parole Board would in fact have
exercised its discretion and granted the author's release; on the contrary,
it would have been highly unlikely, given the extreme nature of the crimes,
the need to protect the public, and his attitude to the victim even in
prison (including the institution of criminal proceedings against her).
4.3 On the merits, in terms of article 15, the State party submits that its
parole regime is not a "penalty", within the meaning of the Covenant. The
penalty for the offence is that imposed on sentencing, with article 15
directed at the maximum penalty applicable in law for the offence in
question. The sentencing court does not take parole provisions into account
at the point of sentencing. By contrast, parole is simply the administration
of the penalty imposed at sentencing, resulting in a shorter sentence being
served, where possible in terms of public safety, in the community rather
than in custody.
4.4 As to article 9, the State party argues that the author's detention
until the expiry of his 14 year sentence cannot be said to be arbitrary.
Referring to the Committee's jurisprudence that "deprivation of liberty
until the expiry of the sentence, notwithstanding the remission [an author]
may have earned, do[es] not in any way affect the guarantees ... set out in
article 9 of the Covenant", [FN5] the State party considers that this
sentence was determined by the sentencing courts as the appropriate penalty
for the serious offences committed.
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[FN5] A.R.S. v Canada, Communication No. 91/1981, Decision adopted on 28
October 1981.
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4.5 As to article 26, the State party refers to its submissions under
article 15 and disputes in any event that a date of sentence is a sufficient
"other status" within the meaning of article 26. It notes the House of
Lords' recent rejection of length of sentence as being such a status in
terms of article 14 of the European Convention. [FN6] Even if "other status"
were applicable, the differentiation would be reasonable and objective,
applying only to persons sentenced after new legislation entered into force,
and would pursue a legitimate Covenant purpose.
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[FN6] Clift v Secretary of State for the Home Department [2007] 2 WLR 34.
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AUTHOR'S COMMENTS ON THE STATE PARTY'S SUBMISSIONS
5.1 By letter of 10 December 2007, the author disputed the State's
submissions on admissibility and merits. As to the State party's argument
that the author has not shown that had he been sentenced under the new laws,
he would have had a lighter penalty to serve, the author argues that is not
possible for him to substantiate that he would be released after one-third
of his sentence, for it lies with the Parole Board to so determine. Rather,
he suggests the onus should be on the State party to show otherwise. The
author cites in his favour overall statistics of the Parole Board that the
chances of being released on parole have progressively dropped from 48.5% in
2003 to 27.5% in 2006, the most recent year cited.
5.2 The author also argues that the State party improperly speculates that
even if the author was eligible for parole after serving one-third of
sentence, it would be "highly unlikely" for him to be granted parole, on the
basis that a lower risk of offending must nonetheless be viewed against the
very serious nature of offending against his daughter. The author argues
that the paramount statutory criterion for Parole Board action is the safety
of the community, which he argues is measured simply by the level of risk of
re-offending.
5.3 In any event, the author argues on the facts that he is not a risk to
his daughter, given that he has no wish to contact her and never will as he
has no knowledge of her location. He argues that the State party's assertion
that he has continued to harass his daughter is irrelevant for current
purposes. He submits that given his claim of innocence, he is entitled to
pursue legitimate means of clearing his name. He accepts however that his
application for judicial review of 11 August 2004 was dismissed, and does
not intend to pursue the matter further. He also argues that his continued
denial of having offended should not be regarded as a bar to being granted
parole.
5.4 The author also expands on his original submissions in respect of the
merits of the communication.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
6.2 The author's claim is that the inapplicability to him of a new
sentencing regime introduced after his conviction and sentence causes direct
and consequential breaches of a variety of provisions of the Covenant. The
Committee notes that under the former sentencing rules applicable to him, he
is entitled to early release after serving two-thirds of his sentence,
subject to postponement of release for prison disciplinary offences or an
order under the Criminal Justice Act that an offender serve a full term.
Under the new sentencing rules applicable to persons sentenced later than
the author, prisoners in principle must serve a full sentence without any
entitlement to early release, but are eligible for discretionary parole
after serving one-third of their sentences if no minimum term is imposed.
6.3 The Committee notes its jurisprudence on changes in sentencing and
parole regimes that "it is not the Committee's function to make a
hypothetical assessment of what would have happened if the new Act had been
applicable to him", and that it cannot be assumed what a sentencing judge
applying new sentencing legislation would in fact have concluded by way of
sentence. [FN7] The Committee's jurisprudence has also noted the relevance
of a prediction as to the author's own future behaviour to the duration of
imprisonment. [FN8]
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[FN7] MacIsaac v Canada, op.cit, at paragraphs 11 and 12.
[FN8] Van Duzen v Canada, op.cit, at paragraph 10.3.
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6.4 Applying those principles in the present case, the Committee is of the
view that even assuming for the purposes of argument that changes in parole
entitlements amount to a penalty within the meaning of article 15, paragraph
1, of the Covenant, the author has not shown that sentencing under the new
regime would have led to him serving a shorter time in prison. The
contention that the author would have been released earlier under the new
regime speculates on number of hypothetical actions of the sentencing judge,
acting under a new sentencing regime, and of the author himself. The
Committee notes in this respect that the Sentencing Act 2002 significantly
expanded the power of the courts to impose minimum periods of imprisonment
(non-parole periods) for long-term sentences, and parole conditions varied
significantly depending whether a minimum period of imprisonment was
stipulated or not. The Committee also notes in this respect that release on
parole in the State party's criminal justice scheme is neither an
entitlement nor automatic, and is in part dependent on the author's own
behaviour.
6.5 In terms of the claim under article 26, the author has not shown how he
is victim, beyond the analysis under article 15, of any further distinction
amounting to "other status" within the meaning of article 26. The author's
claim under article 9 resting entirely on breaches of articles 15 and 26,
that claim must fail under article 1 of the Optional Protocol for the same
reasons.
6.6 The Committee therefore concludes, consistent with its earlier
jurisprudence, that the author has not shown that he is a victim of the
alleged violations complained of, and the communication is inadmissible
under article 1 of the Optional Protocol.
7. The Committee therefore decides:
(a) that the communication is inadmissible under article 1 of the Optional
Protocol;
(b) that this decision shall be communicated to the author and, for
information, to the State party.
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]
Made public by decision of the Human Rights Committee.
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