ALEX KENNETH LANGLEY V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC WN CIV 2009-485-1574

ALEX KENNETH LANGLEY V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC WN CIV 2009-485-1574 24 August 2009IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2009-485-1574UNDER the Habeas Corpus Act 2001 IN THE MATTER OF an application for Writ of Habeas Corpus BETWEEN ALEX KENNETH LANGLEY AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Hearing: 21 August 2009 Appearances: A K Langley (Applicant in person) V Casey for the Respondent Judgment: 24 August 2009ORAL JUDGMENT OF MILLER J[1] At the conclusion of the hearing on 21 August I dismissed the application for Habeas Corpus and directed that the application be treated as an application for judicial review of the Parole Board. These are my reasons. [2] Mr Langley is a sentenced prisoner who is currently held in Rimutaka Prison. On 16 December 2005 he was sentenced to four years imprisonment in the District Court at Wellington. The sentence expiry date is 15 December 2009. [3] Mr Langley was released on parole on 13 July, on the conditions that among other things: a) he must reside at 83A Lord Street, Stokes Valley and not move from that address without the probation officer's approval; andb) he must continue his employment with Ken Wilson Meats. [4] Although it was not a condition of parole, he was also required to report to the probation officer at Upper Hutt on 13 July and thereafter at 8.30am on each Monday and Tuesday. [5] He reported to the probation service on 13 July but not thereafter. On 14 July a home visit was undertaken but it was found that he was not at the address. He did not spend the night there, and he was not at home when a further visit was undertaken on 15 July. His work supervisor informed the probation officer that he had not presented himself for work on 14 or 15 July, but he had been seen in Newtown. [6] An application for recall was made on 15 July. The probation officer deposed that a psychological assessment dated July 2007 identified Mr Langley as a high reoffending risk, due to his use of alcohol and drugs, unstable living environment, association with antisocial peers, and thinking in beliefs that support offending. He also has poor mood and emotion management skills and work history. Some of these attributes were being demonstrated at the time of the application. An interim recall order was made and he was taken into custody on that day. [7] Mr Langley accepts that he did not present himself to the probation service and that he was not living at the house at the time; he says it was not habitable so he went to stay with a friend temporarily. [8] The application for recall was set down for 31 July. On 23 July Mr Langley's counsel asked the Board by email to adjourn it to 4 September, apparently because of her other commitments. On the 24 th July he signed a form consenting to the adjournment. The form summarised the provisions of s 65(1) and (2) of the Parole Act. [9] Mr Langley's complaint is that he subsequently asked the Board to bring the hearing forward. His employer advises that a job is still available for him, and he wishes to secure it. He is also now being held in medium-security at Rimutaka. Hehas not heard from the Board, hence this application. He no longer consents to an adjournment of longer than eight days. [10] The application for Habeas Corpus has no prospect of success. There is in evidence a copy of the interim recall order and a copy of the original warrant of imprisonment. The affidavit of the probation officer deposes to undue risk and likelihood of absconding, which are among the criteria in s 62 of the Parole Act. Mr Langley disputes these matters, but I am in no position in the context of a Habeas Corpus application to determine that the Board acted without reasonable grounds: cfKurariki v Manager of Mt Eden Prison [2008] NZAR 625. [11] Ms Casey did not have did not have instructions from the Parole Board, but accepted that since its power to adjourn a recall application is statutory, there must be an implied power to bring a hearing forward. Although the Habeas Corpus application must be dismissed, I will treat the papers filed as an application for judicial review of the Board's decision. [12] The Board must be given an opportunity to state its position on Mr Langley's application for an earlier hearing. Further, if the hearing is brought forward it appears that Mr Langley's counsel may not be available. He would like counsel, but gave me to understand that he would conduct the hearing himself if necessary. [13] I made the following orders: a) the application for Habeas Corpus is dismissed; b) the application is to be treated as an application for judicial review of the Parole Board. Ms Casey is to advise the Parole Board of the application and take instructions regarding its attitude. She should file a memorandum today indicating its position. c) the application is adjourned until 28 August at 9.30am. If agreement has been reached on a hearing date before then, the application need not proceed. If agreement has not been reached, the hearing willproceed as an application for judicial review of the Board's refusal to bring the hearing forward. [14] There will be no order as to costs.Addendum[15] I was advised after dictating this judgment that a hearing is not required on 28 August. The Board and Mr Langley have agreed to a hearing on 25 August. Miller J