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Van Wakeren v Chief Executive of the Department of Corrections [2012] NZCA 22 (17 February 2012)

Last Updated: 23 February 2012

JUDGMENT OF THE COURT

A The oral application for an interim writ of habeas corpus is dismissed.

B The appeal is dismissed.

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REASONS OF THE COURT

(Given by Simon France J)

Introduction

[1] Mr Van Wakeren appeals the refusal of Toogood J to grant his application for a writ of habeas corpus.[1]
[2] There are two primary grounds underlying the application and this appeal. The first relates to alleged errors in the sentencing process in the District Court and then on appeal in this Court. The second relates to errors in the Warrant of Imprisonment under which Mr Van Wakeren is currently detained.
[3] Mr Van Wakeren’s sentence results from a series of fraudulent actions, together with a burglary involving war medals. He was sentenced in the District Court by three separate Judges on different sentencing occasions. However, these disparate events were able to be brought together and considered by this Court in a single appeal against conviction and sentence.[2]
[4] The Court of Appeal identified errors that led to two convictions (out of 78) being quashed. Further, there were adjustments to the sentence so that an existing total term of 13 years, three months’ imprisonment was reduced by a year, and an existing minimum period of imprisonment reduced by one year to six years.
[5] Mr Van Wakeren unsuccessfully sought leave to appeal to the Supreme Court.[3]
[6] In the habeas corpus application Mr Van Wakeren sought to challenge the decision of the Court of Appeal in relation to the minimum term of imprisonment. He claims it was imposed without jurisdiction and, as a consequence, he was denied the opportunity to be considered for parole. Such a submission faces two obstacles. First, Mr Van Wakeren’s application to appeal the sentence of the Court of Appeal was rejected by the Supreme Court. Second, it is not a proper basis on which to seek habeas corpus, since it would not result in Mr Van Wakeren’s release. At most it would secure eligibility to be considered for release by the Parole Board.
[7] The proper scope of an application for a writ of habeas corpus has been set out in cases such as Bennett v Superintendent of Rimutaka Prison[4] and Manuel v Superintendent Hawkes Bay Regional Prison.[5] We rely on those judgments.
[8] The short point to be made here is that a writ of habeas corpus is not to be used as a means of further challenging a sentence. The procedural obligations that arise whenever an application for a writ is filed mean, as has been said several times, that it is important to maintain the integrity of the writ by limiting it to matters that truly challenge the legality of detention. The present application is separately flawed by reason of the Supreme Court’s rejection of Mr Van Wakeren’s challenges to his sentence.
[9] The second ground of challenge is based on the correctness of the warrant. This is legitimately a habeas corpus inquiry since errors in the warrant may mean a person is being wrongfully detained. Here, regrettably, there are errors in the original District Court warrant that have been carried through to this Court’s warrant that was issued following the successful sentence appeal.
[10] The warrant does not accurately reflect the sentencing remarks in that:

• (a) the cumulative links in the chain are incorrectly captured so that the combination of the links adds up to 11 years, three months when the correct total should be 12 years, three months’ imprisonment;
• (b) the sentence imposed on one tranche of dishonesty offending is wrongly recorded as four years when it should be two. This is exacerbated by a minimum period of imprisonment of two years, eight months being incorrectly attached to those offences (but also correctly attached to other concurrent sentences of an appropriate length).

[11] Neither error invalidates the warrant, or means the detention is currently unlawful. Mr Van Wakeren has served about four years of a 12 year, three month term. The present incorrect warrant authorises at least a detention of 11 years, three months. Accordingly, Toogood J was correct to dismiss the writ and the appeal is likewise dismissed. A correct warrant, amended pursuant to r 45B of the Court of Appeal (Criminal) Rules 2001, will be shortly issued.
[12] During the hearing of the appeal, Mr Van Wakeren applied for interim release pending judgment on his appeal. That application was declined at the hearing because it was anticipated that the appeal judgment would not be delayed and there did not immediately appear to be any merit in the appeal.

Solicitors:
Crown Law Office, Wellington

[1] Van Wakeren v Chief Executive of the Department of Corrections HC Auckland CIV-2012-404-208, 26 January 2012.
[2] Van Wakeren v The Queen [2011] NZCA 503.
[3] Van Wakeren v The Queen [2011] NZSC 147.
[4] Bennett v Superintendant of Rimutaka Prison [2002] 1 NZLR 616 (CA).

[5] Manuel v Superintendent Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA); leave to appeal declined by the Supreme Court [2005] 2 NZLR 721.