NOTTINGHAM v DEPARTMENT OF CORRECTIONS [2020] NZHC 332

NOTTINGHAM v DEPARTMENT OF CORRECTIONS [2020] NZHC 332 [28 February 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2020-404-000302[2020] NZHC 332UNDER the Habeas Corpus Act 2001BETWEEN DERMOT GREGORY NOTTINGHAMApplicantAND DEPARTMENT OF CORRECTIONSRespondentHearing: 25 February 2020Appearances: Applicant in personM J Mortimer for the DefendantJudgment: 28 February 2020JUDGMENT OF VAN BOHEMEN JThis judgment was delivered by me on 28 February 2020 at 4.00pmPursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors/Counsel:Meredith Connell AucklandCopy to:D G Nottingham[1] On Friday, 21 February 2020, Dermot Nottingham filed a writ of habeas corpuschallenging the lawfulness of his detention under a sentence of 12 months' homedetention imposed by the Court of Appeal in its decision, Nottingham v R of 30 July2020.1[2] Mr Nottingham's application was heard on Tuesday, 25 February 2020, withinthree working days of the date of Mr Nottingham's application as required by s 9(3)of the Habeas Corpus Act 2001.[3] Under s 14(1) of the Habeas Corpus Act, if the defendant, in this case the ChiefExecutive of the Department of Corrections, fails to establish that Mr Nottingham'sdetention is lawful, the Court must grant a writ of habeas corpus orderingMr Nottingham's release.The Chief Executive's position[4] The Chief Executive, through his counsel Mr Mortimer, notes that the Courtmay refuse Mr Nottingham's application in accordance with s 14(1A)(b) of the HabeasCorpus Act, without requiring the Commissioner to establish that Mr Nottingham'sdetention is lawful, if satisfied that Mr Nottingham's application for a writ of habeascorpus is not the appropriate procedure for considering Mr Nottingham's allegations.Mr Mortimer submits that Mr Nottingham's application is not the appropriateprocedure for considering Mr Nottingham's allegations because he says theapplication is in reality an appeal against Mr Nottingham's sentence by another means.[5] However, Mr Mortimer also says that if the Court considers that the ChiefExecutive must establish that Mr Nottingham's detention is lawful he can do sobecause the order for Mr Nottingham's home detention is before the Court.Mr Nottingham's sentence of 12 months' home detention was imposed by the Courtof Appeal on 30 July 2019. Accordingly, Mr Nottingham's sentence has another fivemonths to run.2 It follows that Mr Nottingham's continued detention is lawful and theCourt should refuse the application for a writ of habeas corpus.1 Nottingham v R [2019] NZCA 334.2 It should be noted that Mr Nottingham was granted bail and his sentence of home detention wassuspended pending the Court of Appeal's decision on his appeal.Mr Nottingham's position[6] Mr Nottingham's originating application dated 21 February 2020 sets out insome detail why he considers his current sentence of home detention is unlawful.Mr Nottingham handed up further comprehensive submissions at the hearing on25 February 2020 and engaged actively with the Court at the hearing. He also filedfurther submissions after the hearing in which he responded to some of the exchangesthat took place at the hearing. Although Mr Nottingham can be a little assertive in themanner he advances his propositions, he was courteous and considered in hisengagement with the Court.[7] The essence of Mr Nottingham's case is his contention that in setting itssentence on 30 July 2019, after the hearing on 25 June 2019, the Court of Appeal failedto take into account the fact that the maximum period for a sentence of home detentionis 12 months3 and that he had already served three and a half months of a sentence ofhome detention for the same charges as those to which the Court of Appeal's sentenceapplied. As a consequence, the Court enlarged Mr Nottingham's sentence beyond themaximum allowed under the Sentencing Act 2002, which was beyond the Court'sstatutory powers. As Mr Nottingham put it, "A lawful sentence is one imposed by acourt acting lawfully, and not ultra viresly, and giving a per incuriam judgment."Accordingly, Mr Nottingham's detention was not imposed lawfully and he should bereleased forthwith.[8] Mr Nottingham also challenges the basis upon which the Court of Appeal sethis sentence – by deciding upon what he calls an "imaginary" sentence of 31 months,then, after making a deduction of seven months (to take account of the three and a halfmonths of home detention already served), arriving at a cumulative sentence of 24months which it then converted into a series of concurrent sentences of homedetention, which it imposed without Mr Nottingham being given an opportunity to beheard, without providing reasons and without regard to the maximum sentences whichcould have been imposed on each of the charges for which concurrent sentences wereimposed. Mr Nottingham says this approach is beyond the Court's powers under the3 Section 80A(3) of the Sentencing Act provides that a sentence of home detention may be for suchperiod as the court thinks fit but must not be less than for 14 days or more than 12 months.Sentencing Act, in breach of the Court's duty to provide reasoned decisions as foundby the Privy Council in Taito v R,4 arbitrary, and in breach of New Zealand'sobligations under the Universal Declaration of Human Rights and the InternationalCovenant on Civil and Political Rights.DiscussionIs Mr Nottingham's detention unlawful?[9] Although the Chief Executive submits that it is not necessary for the Court todecide the point, I am satisfied that a sentence of home detention comes within thedefinition of "detention" as provided for in s 2 of the Habeas Corpus Act:detention includes every form of restraint of liberty of the person[10] There can be little doubt that home detention amounts to a restraint of libertyof the person having regard to s 10A of the Sentencing Act which lists home detentionas the second most restrictive form of sentence in the hierarchy of sentences andorders. It follows that, in accordance with s 14 of the Habeas Corpus Act, the ChiefExecutive must establish that Mr Nottingham's detention pursuant to the sentence ofhome detention is lawful or the Court must grant Mr Nottingham as a matter of righta writ of habeas corpus ordering his release.[11] Mr Nottingham's originating application helpfully annexes copies of:(a) The Notice of Result of the Court of Appeal's decision in which it wasadjudged that:(i) Mr Nottingham's request to adduce further evidence wasdeclined;(ii) Mr Nottingham's appeal against the conviction entered by theDistrict Court was dismissed;4 Taito v R [2002] UKPC 15; [2003] 3 NZLR 577; (2002) 19 CRNZ 224.(iii) Mr Nottingham's "existing (part-served) sentence of homedetention" was quashed and a new sentence of 12 months' homedetention, with identified concurrent home detention sentences,plus 100 hours' community work was imposed, subject to thesame conditions as imposed by the District Court.(b) The Order for Sentence of Home Detention dated 30 July 2019 andsigned by the Deputy Registrar stating that Mr Nottingham had beensentenced to home detention for a total period of 12 months made upof the seven concurrent sentences imposed by the Court. The Orderalso states that the start date of the sentence was the 30th day of July2019.[12] On the face of these documents, the veracity of which Mr Nottingham does notdispute, Mr Nottingham has been sentenced by the Court of Appeal to a period of 12months' home detention starting on 30 July 2019. In accordance with thosedocuments, Mr Nottingham's period of home detention runs until 29 July 2020. Itfollows that those documents establish that Mr Nottingham's detention is lawful,having regard to the Court of Appeal's observations in Manuel v Superintendent ofHawkes Bay Prison:5[49] A person who detains another can fairly be expected to establish,effectively on demand, the legal justification for the detention. In casesinvolving imprisonment or other statutory confinements, this will involve theproduction of a relevant warrant or warrants or other documents whichprovide the basis for the detention. We accept that apparently regular warrants(or other similar documents) will not always be a decisive answer to a habeascorpus application. But it will be a rare case, we think, where the habeascorpus procedures will permit the Court to enquire, into challenges onadministrative law grounds to decisions which lie upstream of apparentlyregular warrants. This is particularly likely to be the case where the decisionmaker is not the detaining party. [13] Whether provided by the Chief Executive or by Mr Nottingham, the documentsannexed to Mr Nottingham's application provide the lawful basis for Mr Nottingham'sdetention. They are more than a regular warrant. They are evidence of the sentenceimposed by New Zealand's second most senior Court, the decision-maker, and not the5 Manuel v Superintendent of Hawkes Bay Prison [2005] 1 NZLR 161 (CA).detaining party, the Commissioner. Having regard to the Court of Appeal'sobservations in Manuel, it would have to be a particularly rare case where the habeascorpus procedures would allow a Court to enquire into a challenge to the decision ofthe decision maker itself, particularly where the decision-maker is a court superior tothat considering the habeas corpus application.[14] I am satisfied that this is not one of those rare cases and that I must accept theevidence of the Court of Appeal's sentence as establishing the lawfulness ofMr Nottingham's detention. To do otherwise would be for this Court to act as anappeal Court from decisions of the Court of Appeal.Is a habeas corpus application the appropriate procedure for consideringMr Nottingham's allegations?[15] Mr Nottingham's challenge is not overtly based on administrative law grounds,the basis of challenge under consideration in Manuel, although it has strongsimilarities to the administrative law grounds of illegality, error of law, and excess ofjurisdiction. At its heart, however, Mr Nottingham's challenge is to the substance ofthe Court of Appeal's decision. He says the decision was made per incuriam orwithout regard to the law. In other words, he says the Court of Appeal's sentence waswrong in law.[16] That is classically a question for appeal. This underscores the ChiefExecutive's submission that Mr Nottingham is seeking to use the writ of habeas corpusto appeal the Court of Appeal's decision. In his engagement with the Court at thehearing of his application, Mr Nottingham confirmed that that is precisely what he isdoing.[17] After the Court of Appeal's decision, Mr Nottingham sought leave from theSupreme Court to appeal the Court of Appeal's decision, including on the grounds thatthe Court of Appeal's approach to sentence ignored time served. That application wasdismissed, although the Supreme Court did not consider Mr Nottingham's ground ofappeal based on time served except to record that nothing advanced by Mr Nottinghamgave rise to any appearance of a miscarriage of justice arising out of this ground.6[18] At the hearing before me, Mr Nottingham handed up a minute from theSupreme Court dated 24 February 2020 that was apparently issued in response toMr Nottingham's application for recall of the Supreme Court's judgment. In its minutethe Court states:[2] The Court would like to receive further submissions from the Crownthat address Mr Nottingham's submission that the sentence imposed by theCourt of Appeal exceeds the statutory maximum of 12 months. In particular,the Crown is asked to advise whether the time served by Mr Nottingham priorto the decision of the Court of Appeal (three and a half months) will be takeninto account by the Department of Corrections in determining the detentionend date and, if so, what the statutory basis of that decision is for that decision.[19] Understandably, Mr Nottingham is encouraged by this Minute which he seesas indicating that the Supreme Court may validate his position. That is a matter forthe Supreme Court and not this Court. Nonetheless, I consider it appropriate toobserve that the Crown and the Supreme Court may wish to consider whether theintent if not the precise language of s80B(2) of the Sentencing Act is engaged byMr Nottingham's circumstances.7[20] For the purposes of this habeas corpus application, however, the relevance ofthe Supreme Court minute is that Mr Nottingham told this Court that the question heis pursuing before the Supreme Court in exactly the same question he is pursuing inhis habeas corpus application. In other words, he is pursuing through the SupremeCourt's appeal and recall processes the same question he is pursuing through hisapplication for a writ of habeas corpus.[21] This acknowledgement further confirms that Mr Nottingham is using thehabeas corpus procedure to appeal against the Court of Appeal's decision. It also6 Nottingham v R [2019] NZSC 144 at [15].7 Section 80B(2) provides:If a court imposes cumulative sentences of home detention or imposes 1 or more sentencesof home detention on an offender who is already serving a sentence of home detention, thetotal term of the sentences of home detention must not be more than 12 months.confirms that Mr Nottingham's application for a writ of habeas corpus is not anappropriate procedure for considering his allegations that his sentence of homedetention is unlawful.[22] Lest there be any doubt, I record that I would have reached the same conclusionwithout Mr Nottingham's acknowledgement. It is apparent that Mr Nottingham isasking the High Court to hold that the Court of Appeal's decision to impose a sentenceof 12 months' home imprisonment is wrong in law. That is a matter for appeal. It iswell beyond the jurisdiction of this Court.[23] In conclusion, therefore, I decline Mr Nottingham's application on twogrounds:(a) In terms of s 14(1) of the Habeas Corpus Act, the Commissioner hasestablished that Mr Nottingham's detention is lawful based on thedocuments attached to Mr Nottingham's application;(b) In accordance with s 14(1A)(b) of the Habeas Corpus Act, I am satisfiedthat Mr Nottingham's application is not the appropriate procedure forconsidering Mr Nottingham's allegations that his sentence of homedetention is unlawful.[24] I record, however, that Mr Nottingham's situation may be reviewed by theSupreme Court in the context of Mr Nottingham's application for recall of that Court'sdecision to dismiss his application for leave to appeal. That is a more appropriatecontext for assessing Mr Nottingham's essential point that the Court of Appeal shouldnot have imposed what Mr Nottingham considers to be an effective sentence of 15 anda half months' home detention, albeit one that was punctuated by a period of releaseon bail while Mr Nottingham's appeal was in progress.Application for relaxation of home detention conditions[25] Mr Nottingham also requests that the Crown agree or the Court order that hebe allowed four hours a day of unsupervised leave pending the outcome of theSupreme Court's consideration of his recall application. Mr Nottingham submits thathe has already served well over 75 per cent of his full sentence as he sees it, based onthe three and a half months served of the sentence imposed by the District Court andthe seven months served of the sentence imposed by the Court of Appeal.[26] That request appears to be based on a misapprehension that early release isavailable for persons serving sentences of home detention in the same way that paroleis available for persons serving sentences of imprisonment. The Parole Act 2002,however, does not apply to persons serving sentences of home detention and theexpectation is that sentences of home detention are served in full.[27] Even under Mr Nottingham's calculation of his sentence, that sentence doesnot expire until mid-April 2020. In its minute dated 24 February 2020, the SupremeCourt has asked the Crown to file its submissions by 2 March 2020 and thatMr Nottingham file any submissions in reply by 9 March 2020. That should ensurethat the Supreme Court has the opportunity to decide whether to reviewMr Nottingham's sentence before mid-April 2020 when the issue will become acute.[28] In any event, I do not consider that it is appropriate to seek a variation of theconditions of home detention through an application for a writ of habeas corpus anddecline to make the order sought.______________________G J van Bohemen J