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Smith v Chief Executive of the Department of Corrections [2018] NZHC 2572 (1 October 2018)

Last Updated: 25 March 2019

JUDGMENT OF PALMER J

This judgment was delivered by me on 1 October 2018 at 4.00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

..........................................

Party/Solicitors:

The applicant

Meredith Connell, Crown Solicitor, Auckland

SMITH v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2018] NZHC 2572 [1 October 2018]

Mr Smith

[1] On 3 March 2016 in the District Court, Judge D J Sharp sentenced Mr Romeo Smith to 12 months’ home detention for several offences, in place of a sentence of 24 months’ imprisonment.¹ There were other concurrent sentences. He gave leave to Mr Smith apply for home detention. That did not become available until March 2017. But on release, Mr Smith did not report for home detention.

[2] Mr Smith was arrested again on 3 April 2017 and remanded in custody on seven charges. On 17 November 2017, in addition to a number of concurrent sentences, Judge N R Dawson sentenced Mr Smith to imprisonment for three offences on a cumulative basis: ²

(a) one year and nine months (21 months) for burglary;

(b) three months for operating a motor vehicle recklessly; and

(c) six months for breach of home detention.

[3] The other sentences were to be served concurrently. The total sentence was 30 months, or two and a half years.³ Corrections records indicate the seven months on remand was taken into account in calculating Mr Smith’s end release date. If it had not been, Mr Smith’s release date would have been 15 May 2020 rather than Mr Smith’s current release date of 30 September 2019.

Habeas corpus

[4] The Habeas Corpus Act 2001 provides for restoring the liberty of those who are unlawfully detained. Section 14(1) states, if the defendant fails to establish a detention is lawful, the court “must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention”. Section 14(2) provides “a judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention”.

¹ R v Smith [2016] NZDC 4264 at [14].

² New Zealand Police v Smith [2017] NZDC 26449.

[5] As the Court of Appeal has stated, the inquiry envisaged by Parliament in passing the Act must be one “that, although conducted in circumstances of urgency would allow an appropriately considered judicial examination that would warrant making an unappealable finding against the lawfulness of the detention”.⁴ A court is entitled to examine the administrative decision which underpins the legality of the detention.⁵ And if the court considers a person is unlawfully detained, a writ of habeas corpus must issue.

Submissions

[6] Mr Smith applies for a writ of habeas corpus. He submits he was wrongfully convicted and arbitrarily detained, because the Department of Corrections wrongly calculated his sentence release date. He submits each of the three sentences identified above are individual sentences, as they are to be served cumulatively. He submits each is less than two years, making them short-term sentences of which he is required to serve half before he is entitled to automatic release under s 86 of the Parole Act 2002 (the Act). He therefore submits he is entitled to release after serving half of each of the three sentences, which should be after 15 months in total. He relies on Booth v R, also known as Marino.⁶ He submits the sentence should be the same whether structured cumulatively or concurrently. He submits his sentence release date should have been 3 July 2018. He asks why they have put it all together if they meant the sentences to be served cumulatively. And he says if this was what the Judge intended, that seriously overstates the gravity of his offending.

[7] Ms Mok, for the Crown, submits Mr Smith is lawfully detained. She has taken me through the warrants of committal. She submits it is apparent from Judge Dawson’s sentencing notes and from the warrants of commitment that he intended the relevant sentences to be served cumulatively. She submits it is clear from Booth that cumulative sentences imposed on the same occasion can be added together to form one notional sentence.⁷

⁴ Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA) at [47].

⁵ At [46].

⁶ Booth v R [2016] NZSC 127, [2017] 1 NZLR 223 at [47]–[48].

Should a writ of habeas corpus be issued?

[8] I have seen the warrants of commitment which demonstrate Mr Smith was lawfully imprisoned. I am not able to inquire, on application for a writ of habeas corpus, into the claim of wrongful conviction or to review the sentence imposed.

[9] Section 75 of the Act is relevant to Mr Smith’s submissions about cumulative sentences. It provides, when a cumulative sentence is imposed after commencement of an earlier sentence, they are to be treated together as a single notional sentence for the purpose of determining whether the offender is subject to a long-term or short- term sentence. And William Young J, in Booth, made clear “the same is so of cumulative sentences imposed on a single occasion”.⁸

[10] The consequence is Corrections has correctly calculated Mr Smith’s release date. It has established Mr Smith’s detention is lawful. For that reason, I refuse the application for the issue of a writ of habeas corpus.




Palmer J