COLEMAN v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZCA 210 [2 June 2020]

COLEMAN v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZCA 210[2 June 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA248/2020[2020] NZCA 210BETWEEN DYLAN EDWARD COLEMANAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 21 and 27 May 2020Court: Brown, Simon France and Mallon JJCounsel: M Starling and N R Wham for AppellantC J Boshier for RespondentJudgment: 2 June 2020 at 4.00 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONSPara No.Brown and Mallon JJ [1]Simon France J [50]BROWN AND MALLON JJ(Given by Brown J)Introduction[1] Mr Coleman is serving a sentence of two years' intensive supervision (ISUP)which includes special conditions under ss 54G and 54I of the Sentencing Act 2002(the Act) imposing a curfew between the hours of 8.00 pm and 8.00 am daily andrequiring him to undertake a reintegration programme for up to 12 hours per day sevendays a week.1 For that purpose he is required to reside in housing at Tōruatanga whichis administered by the Department of Corrections (the Department) adjacent to theChristchurch Men's Prison.[2] By application dated 5 May 2020 Mr Coleman sought a writ of habeas corpusclaiming to be detained because his approved address is a prison, and because he isrequired to reside there and to not leave at all during the curfew period and to not leavewithout prior permission and accompaniment otherwise. Such detention was said tobe unlawful because he is not subject to a sentence of imprisonment and the orders forsupervision do not specify special conditions requiring him to remain at the approvedaddress at all times. The respondent did not contest that Mr Coleman was detainedbut contended that his detention was lawful.[3] In an oral judgment following a hearing on 8 May 2020 Nation J declined theapplication.2 In a reasons judgment of 18 May 2020 the Judge ruled that habeas corpuswas not an appropriate procedure for what he considered to be a challenge byMr Coleman to either the administration of his sentence or the conditions of thesentence. He further held that to the extent Mr Coleman was detained, the detentionwas lawful.3[4] Mr Coleman appeals against that judgment.[5] When this matter first came before us, as in the High Court, Mr Colemanchallenged his detention as unlawful because he claimed it went further than what wasauthorised on the face of the interim supervision order (ISO) and ISUP conditions. Weexplored with counsel whether it would be possible to craft an order identifying thoseperiods when Mr Coleman was lawfully required to remain at Tōruatanga and whichconsequently should be excluded from the order sought. The hearing was adjournedto enable the respondent to respond to our request to provide specific details ofMr Coleman's reintegration programme.1 He is also subject to an interim supervision order under s 107FA of the Parole Act 2002: see [9]below.2 Coleman v Chief Executive, Department of Corrections [2020] NZHC 947.3 Coleman v Chief Executive, Department of Corrections [2020] NZHC 1033 [Reasons judgment].[6] However at the resumed hearing Mr Coleman contended that the respondenthas no power to detain him at all and that he cannot be "detained pre-emptively" toensure compliance with the ISO and ISUP conditions, including the night curfew.Hence he requested that a writ be issued in the standard form in the schedule to theHabeas Corpus Act 2001 without amendment or conditions.[7] As this Court observed in Nottingham v Ardern, the assessment as to whetheror not restrictions upon an individual's movement constitute a restriction of theirliberty, and therefore detention for the purposes of the Habeas Corpus Act, requires anexamination of all relevant facts and an evaluative judgment as to whether or notParliament intended that the established circumstances satisfy the requirements fordetention in that Act.4Factual context[8] Mr Coleman pleaded guilty to a charge of exploitative sexual connection andon 3 July 2015 was sentenced in the District Court at Auckland to imprisonment forfour years and two months.5 An appeal was dismissed in the High Court on18 December 2015.6[9] In December 2018 the Department applied in the District Court at Waitakerefor an extended supervision order (ESO) and an ISO. The ESO application, whichwas to be heard on 25 March 2020, could not proceed because of the COVID-19lockdown and is still to be heard. However on 5 April 2019 an ISO under s 107FA ofthe Parole Act 2002 was made in the District Court at Waitakere.7 The judgmentrecords that Mr Coleman and his counsel both accepted that the ISO could be madeby consent. The ISO contained standard and special residential conditions includingGPS monitoring at all times.[10] Mr Coleman failed to answer calls by the monitoring team as required by theGPS monitoring condition. He pleaded guilty to a charge of a breach of the4 Nottingham v Ardern [2020] NZCA 144 at [21].5 R v Coleman [2015] NZDC 12457.6 Coleman v R [2015] NZHC 3298.7 Police v Coleman [2019] NZDC 6499.supervision order. He also pleaded guilty to two other charges of assault andintimidation arising out of his behaviour in making unwanted advances to andpursuing young women.[11] A Department pre-sentence report described Mr Coleman as having adisordered lifestyle and being unable to maintain his own accommodation to anacceptable sanitary standard without external support. The report further referred tothe Department's concerns about the charges involving Mr Coleman approachingwomen which paralleled his previous offending pathways, stating:This is of high concern for the Department and, as such, Mr Coleman wouldbenefit from a high level supported living accommodation with a reintegrationprogramme where his lifestyle could be structured in a way that encourageshim to engage in productive activities as opposed to ruminating about womenand placing himself in high risk situations. The Department of Corrections isworking towards sourcing an appropriate provider, however accommodationis not confirmed at this time. Therefore, it is recommended that there is acondition whereby he engages in a programme for up to 12 hours per day.This would allow for Mr Coleman to obtain the best assistance to allow himto develop reintegrative skills and to mitigate his risk in the community. Ifaccommodation with a suitable programme provider is located, a curfewcondition for the remaining 12 hours will be required to ensure consistencywith other residents. It will also mitigate the risk of Mr Coleman leaving theproperty unaccompanied and placing himself in high risk situations.[12] On 23 October 2019 Mr Coleman was sentenced to two years' intensivesupervision on the standard conditions set out in s 54F of the Act. In addition theCourt imposed the following special conditions under ss 54G and 54I:1 To undertake, engage in and complete a reintegration programmeapproved by your Probation Officer for up to twelve hours per day, seven daysa week. Whilst participating in the programme, to submit to being supervisedand monitored as necessary to ensure your attendance at classes orparticipating in other activities associated with the programme. To abide bythe rules of the programme to the satisfaction of your Probation Officer.2 Not to loiter near public transportation hubs and/including bus-stops,train stations, and ferry terminals, unless you have the prior writtenpermissions of your managing probation officer. 3 Not to use any form of public transport unless you have the priorwritten permission of your managing probation officer.4 To be at your approved address between the hours of 8.00PM and8.00AM daily unless you have a prior written approval of a probation officer.[13] An amended order recording those conditions, receipt of which Mr Colemanacknowledged, advised that failure to comply with the terms of the sentence withoutreasonable excuse might result in an offence punishable by up to six months'imprisonment or a fine up to $1,500 under s 70A of the Act.[14] Mr Coleman's approved accommodation is at Tōruatanga, a facility located onChristchurch Men's Prison land but not part of the prison, being located outside thewire of the main prison and having a separate entrance. The manager of Tōruatangaexplained in an affidavit filed in the High Court that the purpose of Tōruatanga is toprovide a transitional housing and support option for people with high and complexneeds who are subject to community-based sentences and orders and who require ahigh level of reintegrative support and supervision as a bridge between prison andcommunity living.[15] It comprises a community hub and three standalone houses. Mr Colemanoccupies one of those houses which is a fenced property with a gate which is notlocked and often is not closed. There is a fence around the entirety of the Tōruatangaproperty with a front gate which is normally open during the day but which, weunderstand, is locked at night. However during the Level 4 COVID-19 restrictionsthe front gate to Tōruatanga was also locked during the day.The High Court judgment[16] By reference to an affidavit of Mr Coleman in support of the application, theJudge summarised his complaint in this way:8Mr Coleman said he lives in a house on the property of Christchurch Men'sPrison in Templeton, that he had been brought down to Christchurch byProbation when he would rather be back in Auckland. His house was withina secured section with two other houses, like a gated community. People therecould not "just come and go". Since he had been living at this address, he hadnot been allowed to leave the property by himself. There were four scheduledoutings per week. On each occasion, he was accompanied by at least one ortwo, usually two, staff members. He was only allowed to go to thesupermarket once a week. When he was not doing a programme at theproperty, he had no organised tuition or classes to attend.8 Reasons judgment, above n 3, at [3].[17] The Judge then recorded counsel for Mr Coleman Ms Wham's oral argumentas follows:9(a) Mr Coleman, under his sentence of intensive supervision and ISO,was subject to a curfew only between the hours of 10 pm and 8 am;(b) Mr Coleman was detained within a small site managed and staffed bythe Department and only able to leave it with advance permission andwhen accompanied;(c) although Mr Coleman was subject to a basic programme at the site,there was substantial downtime when he was not involved with thatprogramme but was not permitted to leave the property;(d) Mr Coleman was not subject to any order or sentence that requiredhim to be at the property at all times; and(e) the constraints he was under were such to mean that he was detainedfor habeas corpus purposes.[18] For the Department it was submitted that pursuant to s 14(1A) of the HabeasCorpus Act the Court should refuse the application because a writ of habeas corpuswas not the appropriate procedure for considering the complaints made byMr Coleman.10 Although said to be potentially moot, it was not contested thatMr Coleman was detained. However it was submitted that the detention was lawfulin terms of both the ISUP and the ISO.[19] After discussing relevant authorities11 the Judge concluded:[33] In this instance, Mr Coleman was not subject to a prison sentence.There was however no dispute that he is subject to intensive supervision. Itwas not suggested that he was not required to reside at Tōruatanga as acondition of that sentence. It was accepted that he was subject to a curfewwhich restrained him from leaving that place and that, while there, he wasrequired to participate in any such programme as might be directed inaccordance with the conditions of intensive supervision. Mr Coleman wasattempting to use the habeas corpus writ procedure to challenge an element ofthe restraints or detention he was under pursuant to his sentence of intensivesupervision in the same way as the two prisoners did in Bennett as to theirprison sentence. As the Court of Appeal held was the case in Bennett, anappropriate procedure to do this is by judicial review.9 At [4].10 At [6].11 Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161; Wilson v ChiefExecutive, Department of Corrections [2018] NZHC 2322, [2018] NZAR 1357; and Bennett vSuperintendent, Rimutaka Prison [2002] 1 NZLR 616 (CA).[20] The Judge nevertheless proceeded to discuss the issue of the lawfulness of theconceded detention. The Judge identified the essence of Mr Coleman's complaint asbeing he is unlawfully detained because, when he is not subject to curfew and notparticipating in a programme as required by his probation officer, he is unlawfullyrestrained from leaving Tōruatanga and going where he wishes.[21] With reference to the programme which Mr Coleman is required to undertakethe Judge said:[42] The evidence from [the Tōruatanga manager] satisfies me thatMr Coleman is engaging in a rehabilitation programme through having to liveat Tōruatanga. Mr Coleman's needs are so basic and the risks to himself andothers in the community so intense that the reintegration programme requireshim to stay at Tōruatanga unless he can be accompanied on approved outings.The programme also allows the staff to interact with him in a way that mightassist him to complete the most basic tasks that might, at some stage, enablehim to live within the community.[44] Pursuant to s 54H, for the purposes of s 54G, programme means,amongst other matters, "placement in the care of any appropriate person,persons, or agency approved by the chief executive of the Department ofCorrections ". Mr Coleman has been placed in the care of the Departmentat Tōruatanga. Mr Coleman is thus subject to a programme in accordancewith the conditions of his sentence of intensive supervision through having toreside at Tōruatanga. It is through that condition Mr Coleman is required toremain at Tōruatanga for 12 hours per day in addition to being subject to thecurfews imposed as part of the ISO and intensive supervision sentence.[22] Hence the Judge concluded that Mr Coleman must comply with therequirements to remain at Tōruatanga and not leave there without the Department'sapproval and oversight. To the extent that Mr Coleman is detained at Tōruatanga, theJudge was satisfied such detainment is lawful.Grounds of appeal[23] The notice of appeal asserts that the Judge erred by finding that Mr Colemanwas lawfully detained and that habeas corpus is not the appropriate procedure forconsidering the allegations against the respondent. Mr Coleman seeks the followingjudgment from this Court:(a) that habeas corpus is the appropriate procedure for considering theallegations against the respondent;(b) that he is detained; and(c) his detention is unlawful.Is Mr Coleman detained?[24] Detention is defined in the Habeas Corpus Act to include every form ofrestraint of liberty of the person.12 In Drever v Auckland South Corrections Facility13this Court observed that the concept of detention under the Habeas Corpus Act refersto circumstances where a person is held in "close custody", for example detention inprison or in an immigration or deportation context.14 In that case the special conditionsof parole were held not to amount to detention.[25] It appears that the respondent's concession that Mr Coleman is detained wasinfluenced by the decision in Wilson v Chief Executive, Department of Correctionswhere Collins J held that ESO conditions requiring Mr Wilson to reside at a specifiedaddress and not leave the Whanganui area without prior written consent were arestraint of his liberty fitting within the definition of detention in the Habeas CorpusAct.15[26] However Mr Coleman's sentence of intensive supervision is acommunity-based sentence.16 His initial placement was in a house in Christchurch butit is apparent from the evidence that his challenging behaviour could not be managedin that environment. His present residence, while on prison land, is separate from theprison itself. We accept counsel for the Department Ms Boshier's submission that thelocation of his residence on prison land is not determinative and is not detention in andof itself.12 Habeas Corpus Act 2001, s 3.13 Drever v Auckland South Corrections Facility [2019] NZCA 346, [2019] NZAR 1519.14 At [27] and [29].15 Wilson v Chief Executive, Department of Corrections, above n 11, at [10].16 Sentencing Act 2002, s 44(1)(c).[27] We also agree with Ms Boshier's submission that Mr Coleman's liberty is notrestrained in the sense that he is not physically prevented from leaving his residence.No doubt if he did so, breach action would follow, similar to situations of breaches bypersons granted bail or parole. However there is no physical impediment rendering itimpossible for him to leave Tōruatanga. Ms Boshier submitted that it is arguabletherefore that the special conditions of the ISUP and the ISO do not amount todetention for the purposes of the Act.[28] However orders which have the effect of confining a person to a particularlocation may be viewed as in the nature of custody. Clark and McCoy write:17The custody requirement includes other forms of restriction short ofimprisonment where the applicant is subject to restrictions not shared by thepublic generally. It includes house arrest, being ordered to reside in a certainvillage, being under arrest but not yet in a police station or prison, and beingdetained at a military unit or base. The same argument could be extended toa person on parole or on probation, and possibly to a person released on bailthough the local authorities are slight. In principle, though there is no habeascorpus case on the matter, the various forms of home detention and weekendleave, now favoured in modern prisons or corrections legislation, would besufficient custody for habeas corpus purposes. In one jurisdiction explicitprovision is made to the effect that a prisoner who is on weekend leave isdeemed to be in custody.(Footnotes omitted).[29] By that process of reasoning certainly the 12 hour curfew to whichMr Coleman is subject would constitute detention. That conclusion derives supportfrom Secretary of State for the Home Department v JJ where the requirement to remainin residence for 18 hours a day between 4.00 pm and 10.00 am was described as a"classic detention or confinement".18 Very recently in finding a curfew to a particularaddress between the hours of 11.00 pm and 7.00 am to be imprisonment at commonlaw, the United Kingdom Supreme Court in R (Jollah) v Secretary of State for theHome Department emphasised the crucial difference between voluntary compliancewith an instruction and enforced compliance with that instruction.19 As in Jollah, thepresent case is one of enforced, not voluntary, compliance.17 David Clark and Gerard McCoy Habeas Corpus: Australia, New Zealand and The South Pacific(2nd ed, Federation Press, Sydney, 2018) at 68–69.18 Secretary of State for the Home Department v JJ [2007] UKHL 45, [2008] AC 385 at [59].19 R (Jollah) v Secretary of State for the Home Department [2020] UKSC 4, [2020] 2 WLR 418at [27].[30] The status of the reintegration programme is less certain. A programme unders 54H of the Act may be residential or non-residential in nature. It may involve theplacement of a person in the care of others (if approved by the respondent) includinga marae, an ethnic or cultural group or a religious group. While it may well be thecase that a person in such care would be subject to restrictions not shared by the publicgenerally, that is not the sole criterion. There must be a restriction on liberty analogousto close custody.[31] As this Court recently observed in Ardern:20[20] In order to constitute detention under the Act, restraint of a person'sliberty must entail more than intermittent or limited constraint upon his or hergeneral right of movement. Not every curtailment of the right to movementaffirmed by s 18 of the New Zealand Bill of Rights Act 1990 constitutesdetention under the Act. Detention under the Act requires holding a person inclose custody or in a similarly restrictive environment not shared by the publicgenerally.(Footnote omitted).[32] Like the curfew, Mr Coleman's presence at Tōruatanga during the period ofthe programme (potentially 12 hours per day, seven days a week) is not voluntary butenforced. As Baroness Hale said in Jollah, he is "obliged to stay where he is orderedto stay whether he wants to do so or not".21 Although we would require more detailedargument than the circumstances of the present appeal permitted in order to ruledefinitively that it was Parliament's intention that the programmes envisaged by s 54Hwould constitute detention for the purpose of the Habeas Corpus Act, we consider thatMs Boshier's concession below was responsibly made and we proceed on the basisthat Mr Coleman is detained while under the curfew and for the duration of hisparticular programme.Is the detention unlawful?[33] At the hearing on 21 May 2020 Mr Coleman accepted that he is lawfullyobliged to abide by the curfew and participate in programme activities at Tōruatanga.20 Nottingham v Ardern, above n 4.21 R (Jollah) v Secretary of State for the Home Department, above n 19, at [24].However he submitted that the respondent is detaining him beyond what is permittedby the ISO and ISUP conditions.[34] The point was made that special condition 1 of the ISUP requires Mr Colemanto engage in and complete a reintegration programme approved by his probationofficer "for up to" 12 hours per day, seven days a week. But it was contended that therespondent had not demonstrated that it is providing programme activities for the full12 hours per day. On the contrary, it was said that Mr Coleman's evidence was to theeffect that he is rarely doing anything structured or meaningful.[35] Ms Wham submitted that the Judge who imposed the ISO and later the ISUPsentence did not intend that Mr Coleman would be confined to Tōruatanga at all times.If that was the intention, there would have been no reason to impose ISUP specialconditions restricting him from using public transport or approaching public transporthubs. Similarly a condition not to enter parks or recreational areas would beunnecessary if it was intended that he be detained all of the time.[36] In short Mr Coleman contended that when he is neither subject to the curfewnor engaged in programme activities, then the residual conditions only go so far as toprevent him from going to particular places but do not prevent him from entering thecommunity at large.[37] Ms Boshier construed the argument to be that the programme conditions werebeing misused to monitor Mr Coleman unlawfully, observing that such an argumentdid not find favour with this Court's majority judgment in Woods v Police.22[38] The respondent did not accept the inadequacies in the programme alleged byMr Coleman. However it was difficult for the Court to engage with the argument inthe abstract and without reference to the programme itself which was not before us.Consequently the hearing on 21 May was adjourned and the respondent was requestedto provide Mr Coleman's reintegration programme to the Court by midday on 25 May2020.22 Woods v Police [2019] NZCA 446. Leave to appeal to the Supreme Court was granted: Woods vPolice [2020] NZSC 3.[39] The document which was filed, dated 20 May 2020, is entitled "DylanColeman Reintegration Plan". It addressed five assessed reintegrative needs:(a) accommodation;(b) education/training;(c) skills for life;(d) whānau, friends and community support; and(e) physical and mental health.[40] Annexed to the plan was an example of Mr Coleman's "Weekly Planner" forJune 2020 showing the various activities planned for the different periods of each dayof a single week commencing at 7.45 am and concluding with a time slot "5 pmonwards". Relevant to Mr Coleman's complaints about his not being permitted toleave the property alone, the skills for life section of the plan includes the following:Dylan will be accompanied by staff on all outings so that he is assisted withmanaging his interactions with the public safely and appropriately, to receiveguidance in the moment, and feedback from staff.The annexed weekly planner made provision for shopping expeditions on Tuesday,Friday and Saturday afternoons.[41] There were also several slots designated simply as "exercise" or "rest". Thefinal time slot for each evening from 5.00 pm onwards was described as"dinner/hobbies/interests". In a supplementary submission of 26 May 2020 Ms Whamsubmitted that the programme plan did not demonstrate that Mr Coleman was obligedto be on site at Tōruatanga and/or accompanied by staff at all times. She said:4 The weekly plan exemplar shows a number of time slots where theappellant would not need supervision or to be onsite at Tōruatanga tocomplete the tasks at hand, for example during rest, exercise orhobbies/interests periods. It is submitted that "rest" is not an activityassociated with the programme.[42] Our very brief review in the context of a habeas corpus application is not to beread as either criticism of or endorsement of the material provided as amounting to anappropriate reintegrative programme. However two significant acknowledgementswere made concerning the programme in the course of the resumed hearing on 27 May.First, Ms Wham accepted that the Court has jurisdiction to impose a condition thatrequires an offender to engage in a reintegration programme for 12 hours per day sevendays a week. Secondly, Ms Boshier accepted that if the programme which was put inplace was for (say) ten hours per day, then there would be no restriction onMr Coleman which prevented him leaving the property on his own during thatremaining two hour period.[43] We consider that Ms Boshier's acknowledgement is properly made.As Ms Wham had submitted, the approved programme was to be for "up to" 12 hoursper day, seven days a week. To the extent that the programme did not occupy thatentire period, we consider it is plain that Mr Coleman would not be breaching thestandard or special conditions by being absent from Tōruatanga during that period,subject of course to his complying with other conditions which placed constraints onhis conduct. However if an approved reintegrative programme occupied the entirenon-curfew period, then the opportunity for Mr Coleman to leave the propertyunaccompanied would not arise.[44] In summary, Mr Coleman's detention in the form of his being required to bepresent at Tōruatanga for the duration of a reintegration programme imposed asa special condition of the ISUP will not be unlawful, nor will his evening curfew.However if he were prevented from leaving the property during any period in respectof which there was no reintegration programme in operation and no curfew, suchdetention would be unlawful. Nevertheless, given Ms Boshier's acknowledgement,23it follows that the basis upon which the application for the writ was advanced at thehearing on 21 May 2020 evaporated. The issue that remains for Mr Coleman —whether the programme, as it is presently structured, properly requires him to be atTōruatanga for 12 hours, and whether, if it is to apply for the entire period of the ISUP,that is inconsistent with the conditions of the ISUP providing for a programme of "up23 At [42] above.to" 12 hours and the conditions concerning his use of public transport — is one forjudicial review, not habeas corpus.[45] However in her supplementary submissions of 26 May 2020 Ms Whamfocussed her attention on the powers of the respondent vis-à-vis Mr Coleman.Drawing a comparison with the powers of arrest in the Parole Act, the Sentencing Actand the Corrections Act 2004, Ms Wham submitted that the respondent has no generalpower to detain Mr Coleman. The submission stated:11 It is submitted that the appellant's curfew, programme, and residenceconditions impose positive obligations on the appellant to complywith them; they do not afford the respondent a power of detentioneither alone or in combination. Were the accommodation andprogramme provider someone other than the Department ofCorrections this proposition might be clearer.15 The respondent has no power to detain the appellant. The appellantcannot be detained pre-emptively to ensure compliance with hisconditions, including the curfew. A general writ demanding therelease of the appellant will not abrogate his obligation to comply withconditions nor constrain the respondent from invoking breach actionif necessary.[46] It is nowhere alleged, and we do not understand it to be contended, that therespondent's officers have physically sought to restrain Mr Coleman from leaving theproperty. However Ms Wham submitted that if a representation is made by therespondent that enforcement action would be taken in the event Mr Coleman was toleave the property, then that would amount to detention. We do not accept that it is anact of detention for the designated provider or carer (whether it be the respondent or,for example, the Salvation Army) merely to explain to Mr Coleman the statutoryconsequences of s 70A of the Act if he were to leave the property in breach of thespecial conditions.[47] It is not correct to characterise such advice as pre-emptive detention to ensurecompliance with Mr Coleman's conditions including the curfew. The giving of suchadvice, which is in Mr Coleman's own best interests, would be a responsible act onthe part of a person who had the care of another in terms of s 54H(c). We do not viewit as amounting to what Baroness Hale referred to as "threats, whether of force or oflegal process".24 It does not provide a basis for the issue of a writ of habeas corpus inthe standard form to the caregiver in whose charge Mr Coleman is placed by the ISUPconditions.Is habeas corpus the appropriate procedure for considering Mr Coleman'sallegations?[48] As we are not satisfied that there is unlawful detention on either of the basesadvanced by Mr Coleman, it is not necessary to have recourse to s 14(1A) of theHabeas Corpus Act. However we agree with the Judge that Mr Coleman is essentiallyseeking to use the habeas corpus procedure to take issue with the administration of hissentence by criticising the content,25 or possibly even attacking the bona fides, of theprogramme reflected in the reintegrative plan document. We agree with the Judge thatan application for a writ of habeas corpus is not the appropriate vehicle to advancesuch a complaint.Result[49] The appeal is dismissed.SIMON FRANCE J[50] I agree with the majority. In regards the submissions of the appellant at [45],I consider the error in the appellant's approach is seeking to classify aspects of thedetention as separate or fresh detentions. The programme (probably) detainsMr Coleman for the hours in which it operates. Part of the characteristics that make itdetention are that the programme requires him to be on site for the whole time, not toleave without accompaniment, and only when the supervisors agree.Another characteristic that contributes to it being detention is that Mr Coleman isthreatened with formal breach responses should he seek to leave the property during24 R (Jollah) v Secretary of State for the Home Department, above n 19, at [24].25 A draft writ submitted by Mr Coleman following the hearing sought his release at all times apartfrom:1. during the hours of curfew under the orders of interim supervision and/or intensivesupervision; and2. during the hours of programme activities where attendance or supervision is required,excluding hours designated for rest, exercise, or hobbies and interests.the programme's hours. Advising Mr Coleman that there are sanctions for breachingdoes not alter the nature of an already existing state of detention.[51] The legality issue for habeas corpus purposes is whether such a programme ispermitted as a condition of an ISUP. It is conceded, correctly, that such a programmeis permitted. It is therefore a lawful detention.[52] The appellant's complaint is that certain features of the programme (forexample rest) are not valid features and should not be part of it. If those times werenot included he would be free, during those times, to leave the property. It is commonground that would be the consequence of shortening the daily duration of theprogramme. I agree whether it should be altered in that way is not an appropriatehabeas corpus issue.Solicitors:Crown Solicitor, Christchurch for Respondent