HELSBY-KNIGHT v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2015] NZHC 977

HELSBY-KNIGHT v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2015] NZHC 977 [8 May 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-404-000979[2015] NZHC 977BETWEEN MICHAEL HELSBY-KNIGHTApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 8 May 2015Appearances: Applicant in PersonD J Dufty for RespondentJudgment: 8 May 2015ORAL JUDGMENT OF VENNING JSolicitors: Crown Solicitor, AucklandCopy to: Mr Kaye, AucklandApplicant[1] Mr Helsby-Knight has applied for a writ of habeas corpus. There is a somewhat complicated procedural background to his application.[2] On 1 May Mr Helsby-Knight was before the District Court at Manukau. Following a sentence indication of Judge Andrée Wiltens that day Mr Helsby-Knight pleaded guilty to three charges. The charges were one of using forged documents and two charges of taking or using a document for pecuniary advantage.[3] In the course of the sentencing indication Mr Helsby-Knight, who at that time was represented by Mr Kaye, was advised by the Judge that: I will say that the end term will be three years, four months imprisonment. You have been in custody for two and a half years which is more than that, so were you to plead to these matters today, the effect would be that you would not be incarcerated at all. You would be released immediately for time served.[4] Mr Helsby-Knight, having received that indication, and having discussed thematter with counsel, entered a guilty plea and was sentenced accordingly by theJudge to three years, four months' imprisonment.1 In his sentencing notes the Judgerecorded as follows:[1]. Mr Helsby-Knight for the reasons that I indicated earlier during the sentence indication hearing I am going to convict you and sentence you to three years four months' imprisonment on the three chargesconcurrently.[2] By my reckoning you have more than served that already so it is a time served sentence.[3] As I understand the process that has to be worked out by somebody. That should be done this afternoon hopefully, and if I get a fine's report I will remit fines.[4] Under s 347 counts 4 - 117 are dismissed.[5] Unfortunately for Mr Helsby-Knight following that exercise he was returned to the cells for processing then taken to the prison where he has remained.1 R v Helsby-Knight [2015] NZDC 7568.[6] On 6 May at 3.00 pm he made an application for writ of habeas corpus based on the indication given by the Judge that he would be released on the basis of time served.[7] The application for habeas corpus has been called before the Court thismorning. I have been assisted by Mr Dufty's submissions on behalf of the ChiefExecutive and also by his submission wearing a second hat, for the Crown generally.[8] The starting point is that the application for habeas corpus cannot succeed. I have had produced to me a valid warrant of commitment for sentence signed by the Judge confirming the imposition of the sentence of imprisonment of three years, four months on the three charges.[9] The warrant is a valid warrant and follows the provisions of the Parole Act 2002. Section 76(1) of the Parole Act in particular applies:76 General rules about start date of sentence of imprisonment(1) The start date of a sentence of imprisonment imposed after the commencement date is the date on which the sentence is imposed, except as otherwise provided in sections 77 to 81.[10] As a consequence the start date of the sentence is the date on which it imposed. A Judge cannot backdate a sentence to commence at an earlier time.[11] A further difficulty in the present case is that as the sentence is more than twoyears' imprisonment Mr Helsby-Knight is subject to parole under the provisions of the Parole Act. Mr Helsby-Knight is eligible for parole after a third of that sentence, but can only be released during the term of the sentence by the Parole Board. As a consequence the clear intent of the District Court Judge in imposing the sentence cannot be achieved as matters presently stand.[12] For the above reasons the application for a writ of habeas corpus must formally be declined. The Court is, however, sympathetic to the position that Mr Helsby-Knight finds himself in. I am aware of the decision of Asher J in Carr vPolice2 where the Judge converted the hearing into an appeal against sentence. In that case the Judge felt able, given the nature of the offending and the sentence initially imposed, to allow the appeal and to substitute a sentence of conviction and discharge.[13] I am not in a position to do that today for Mr Helsby-Knight. I only have a bare and limited file directed at the issue of habeas corpus. Apart from the Judge'ssentence indication and his brief sentence note, I have no further information before me, which would enable me to determine what an otherwise appropriate sentence might be or indeed if it was appropriate to deal with the matter as Asher J did inCarr.[14] However, as noted, I am sympathetic to the position Mr Helsby-Knight finds himself in. It was clearly the intention of the District Court Judge that he not remain in custody. For those reasons, after discussion with Mr Dufty and with Mr Helsby- Knight, I propose to accept from Helsby-Knight an oral application for leave to appeal against conviction and/or sentence, (leaving that open for Mr Helsby-Knight to take further advice on), and to grant Mr Helsby-Knight bail in the interim pending the hearing of that appeal.[15] Although Mr Helsby-Knight has spent a considerable period of time in custody pending resolution of these charges, he was more recently on EM bail. Ipropose to grant him bail on most of the existing conditions that applied prior to hislast appearance in the District Court which Gilbert J imposed on 5 February.[16] Those conditions are as follows:(a) pending the hearing of Mr Helsby-Knight's appeal against convictionand/or sentence Mr Helsby-Knight is to reside at 27 Brownlie Crescent, Huntly;2 Carr v Police [2015] NZHC 865.(b) he is to remain with the electronic boundaries at that address on a 24 hour curfew unless otherwise approved by the Department of Corrections EM bail team;(c) his passport is to remain with New Zealand Police. He is not to apply for any replacement passport or travel document;(d) Mr Helsby-Knight is not to possess, consume or use drugs other than prescribed medication;(e) Mr Helsby-Knight may attend such medical or dental or legal appointments as may be notified to the EM bail team.[17] Mr Helsby-Knight I also make it a condition that you file a formal application for leave to appeal conviction and sentence within a week of today, by 15 May 2015. If you do not you will be brought back to Court and taken into custody.[18] After further discussion with Mr Helsby-Knight as to the practicalities of the commencement of bail, Mr Helsby-Knight acknowledges he will spend a further night in custody. He intends to travel by bus to the Huntly address tomorrow morning.[19] On that basis I direct that he be released on the above conditions of bail tomorrow morning, 9 May 2015, that he travel by the most direct route to the address at 27 Brownlie Crescent, Huntly; and that the EM bail assessors meet him there at 3.00 pm tomorrow afternoon.[20] I attach copies of the Judge's notes from 1 May 2015 to this decision.__________________________ Venning J