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

SMITH v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2018] NZHC 2572 [1 October2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-002069[2018] NZHC 2572UNDER the Habeas Corpus Act 2001IN THE MATTER of an application for a writ of Habeas CorpusBETWEEN ROMEO SMITHApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 28 September 2018Appearances: Applicant in person (via AVL)E A M Mok for the RespondentJudgment: 1 October 2018JUDGMENT OF PALMER JThis 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 RegistrarParty/Solicitors:The applicantMeredith Connell, Crown Solicitor, AucklandMr Smith[1] On 3 March 2016 in the District Court, Judge D J Sharp sentenced Mr RomeoSmith to 12 months' home detention for several offences, in place of a sentence of 24months' imprisonment.1 There were other concurrent sentences. He gave leave to MrSmith 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 onseven charges. On 17 November 2017, in addition to a number of concurrentsentences, Judge N R Dawson sentenced Mr Smith to imprisonment for three offenceson 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 30months, or two and a half years.3 Corrections records indicate the seven months onremand was taken into account in calculating Mr Smith's end release date. If it hadnot been, Mr Smith's release date would have been 15 May 2020 rather than MrSmith's current release date of 30 September 2019.Habeas corpus[4] The Habeas Corpus Act 2001 provides for restoring the liberty of those whoare unlawfully detained. Section 14(1) states, if the defendant fails to establish adetention is lawful, the court "must grant as a matter of right a writ of habeas corpusordering 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 lawclaimed to justify the detention".1 R v Smith [2016] NZDC 4264 at [14].2 New Zealand Police v Smith [2017] NZDC 26449.3 At [32].[5] As the Court of Appeal has stated, the inquiry envisaged by Parliament inpassing the Act must be one "that, although conducted in circumstances of urgencywould allow an appropriately considered judicial examination that would warrantmaking an unappealable finding against the lawfulness of the detention".4 A court isentitled to examine the administrative decision which underpins the legality of thedetention.5 And if the court considers a person is unlawfully detained, a writ of habeascorpus must issue.Submissions[6] Mr Smith applies for a writ of habeas corpus. He submits he was wrongfullyconvicted and arbitrarily detained, because the Department of Corrections wronglycalculated his sentence release date. He submits each of the three sentences identifiedabove are individual sentences, as they are to be served cumulatively. He submits eachis less than two years, making them short-term sentences of which he is required toserve 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 ofthe 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 whetherstructured cumulatively or concurrently. He submits his sentence release date shouldhave been 3 July 2018. He asks why they have put it all together if they meant thesentences 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 takenme through the warrants of committal. She submits it is apparent from JudgeDawson's sentencing notes and from the warrants of commitment that he intended therelevant sentences to be served cumulatively. She submits it is clear from Booth thatcumulative sentences imposed on the same occasion can be added together to formone notional sentence.74 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].7 At [47].Should a writ of habeas corpus be issued?[8] I have seen the warrants of commitment which demonstrate Mr Smith waslawfully imprisoned. I am not able to inquire, on application for a writ of habeascorpus, 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 cumulativesentences. It provides, when a cumulative sentence is imposed after commencementof an earlier sentence, they are to be treated together as a single notional sentence forthe 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 ofcumulative sentences imposed on a single occasion".8[10] The consequence is Corrections has correctly calculated Mr Smith's releasedate. It has established Mr Smith's detention is lawful. For that reason, I refuse theapplication for the issue of a writ of habeas corpus.Palmer J8 At [47] and [52].