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Burchell v The Manager, Mount Eden Corrections Facility no.2 HC Auckland CIV 2011-404-004717 [2011] NZHC 891 (8 August 2011)

Last Updated: 16 August 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV 2011-404-004717}

BETWEEN LLEWELLYN BURCHELL Applicant

AND THE MANAGER, MOUNT EDEN CORRECTIONS FACILITY Respondent

Hearing: 8 August 2011

Counsel: Applicant appears in Person

N Whittington for the Respondent

Judgment: 8 August 2011

_{ORAL JUDGMENT [2] OF WYLIE J}

Distribution:

L Burchell: Mt Eden Corrections Facility, Lauder Road, Mt Eden, Auckland

_{N Whittington: n}ick.whittington@meredithconnell.co.nz

L BURCHELL V THE MANAGER, MOUNT EDEN CORRECTIONS FACILITY HC AK CIV 2011-404-

004717 8 August 2011

[1] Mr Burchell has applied to the Court for a writ of Habeas Corpus releasing him from prison today. The application was not accompanied by a supporting affidavit, but I have heard from both Mr Burchell in person and from Mr Whittington on behalf of the Crown.

[2] Mr Burchell is currently in custody pursuant to a sentence imposed by

Judge D J McNaughton in the District Court on the North Shore on 3 May 2011. On

15 October 2010, Mr Burchell was found guilty of threatening to kill or to do grievous bodily harm. He was sentenced on 3 May 2011 to a term of imprisonment of 10 months.

[3] Mr Burchell’s application makes various assertions, and I have heard from him in relation to those matters. Relevantly, Mr Burchell submits first that he is innocent of the crime in respect of which he has been imprisoned. He notes that he is appealing both the conviction and the sentence imposed. Secondly, Mr Burchell argues that on a previous occasion, he was sentenced to a term of imprisonment of eight months, and that he served that term. He submits that he successfully appealed the sentence imposed, and that the sentence was reduced to four months’ imprisonment. Mr Burchell asserts that he has already served six months of the

10-month sentence imposed by Judge McNaughton, and that he is entitled to a credit for the four months served in relation to the earlier matter, before the sentence was reduced. Mr Burchell is anxious that he should be released from custody so that he can return home and prepare for his appeal against the conviction entered by Judge McNaughton and the sentence imposed on him.

[4] Mr Whittington for the Crown submits that Mr Burchell is lawfully detained pursuant to a warrant of commitment for sentence issued under s 91 of the Sentencing Act 2002. He has made a copy of that warrant available to me. He also submits that there is no legal basis which enables Mr Burchell to receive credit for time served in prison under an unrelated sentence, where that sentence was appealed and subsequently reduced. I should make it clear that Mr Whittington does not necessarily accept the facts asserted by Mr Burchell in this regard, but argues rather that there is no legal basis for the credit which Mr Burchell seeks.

Analysis

[5] Sections 14(1) and (2) of the Habeas Corpus Act 2001 provides as follows:

S 14 Determination of applications

(1) If the defendant fails to establish that the detention of the detained person is lawful, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention.

(2) A Judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention and is not confined in that enquiry to the correction of jurisdictional errors; but this subsection does not entitle a Judge to call into question—

(a) a conviction of an offence by a court of competent jurisdiction, the Court Martial of New Zealand established under section 8 of the Court Martial Act 2007, or a disciplinary officer acting under Part 5 of the Armed Forces Discipline Act 1971; or

(b) a ruling as to bail by a court of competent jurisdiction.

[6] Here, the Crown relies on the warrant of commitment for sentence of imprisonment signed by Judge McNaughton and dated 3 May 2011. Prima facie, that warrant justifies Mr Burchell’s imprisonment.[1] It is regular on its face. It has been signed by Judge McNaughton. There is no obvious criticism that can be made of the warrant.

[7] Mr Burchell mounted a spirited attack on the conviction. In effect, he alleges that the Judge, the amicus appointed to assist, the police, and the Crown, each acted illegally and denied him a fair hearing. I cannot enter into that inquiry today. Such matters are not properly susceptible to a fair and sensible summary determination by the Court in the context of a Habeas Corpus application.[2] Moreover, I note that Mr Burchell has filed a notice of appeal against both his conviction and sentence. That appeal was due to be heard on 11 July 2011. Mr Burchell initially told me that the Crown and the Court had conspired to deny him a hearing on that day. I called

_{for the file, and I took an adjournment in order to enable me to consider it. It is clear}

from the Court file that the appeal hearing set down for 11 July 2011 was adjourned at Mr Burchell’s express request, and with the Crown’s consent, to give Mr Burchell more time to prepare for the hearing. The adjournment was granted on 22 June

2011. The hearing of the appeal was adjourned until 15 August 2011 at 10.00 am. Subsequently, on 23 June 2011, Mr Burchell requested a further adjournment to a later date in October or November 2011. That application was declined by Potter J on 23 June 2011, and the hearing date on 15 August 2011 was confirmed as a firm date. It appears from the Court file that notice of that hearing date was sent to the Crown and to Mr Burchell on 25 June 2011. Mr Burchell, however, denies having received the notice. Whatever the truth to that assertion, he is now clearly aware that the appeal will be held on 15 August next. Mr Burchell’s complaints in relation to the conviction and sentence will fall to be determined in the course of that hearing.

[8] I now turn to Mr Burchell’s argument that he has already served time in prison for an unrelated matter, that the sentence was subsequently reduced, that he is entitled to add that credit to time he has already spent in prison in relation to the sentence imposed by Judge McNaughton, and that essentially he has already served a full period of imprisonment of 10 months and is entitled to be released today.

[9] The law does not support this proposition. I refer to the decision of R v Goldberg,[3] and in particular, to the observations of Chambers J in paragraph [64] of that decision. Mr Burchell does not have a deposit in a “sentencing bank” as a consequence of the reduction in the earlier sentence. The proposition advanced by him has no legislative or judicial basis or philosophical merit.

[10] Accordingly, Mr Burchell’s application for Habeas Corpus is refused.

[11] I also record that the application sought a number of auxiliary orders. In particular, Mr Burchell sought an order that I should allow him to get legal aid, an order that I should allow him to obtain clear CCTV footage of an alleged police assault which it is said took place on 16 March 2011, that I should order that a list of incoming telephone calls to his home number be made available to him, and that I

_{should make an order requiring the police to supply him with a list of telephone calls}

to and from the complainant’s telephone number in the two week period prior to

21 May 2010 and the 30 day period after 21 May 2010. These are not matters which can be resolved in the context of an application for Habeas Corpus.

Wylie J

[1] Misiuk v Chief Executive of the Department of Corrections HC Auckland CRI 2011-404-0050,

_{22 June 2011.}

[2] Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA).

[3] R v Goldberg CA10/05, 4 May 2006.