ASPINALL-SU’A v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC 2256

ASPINALL-SU'A v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC2256 [2 September 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-1412[2020] NZHC 2256UNDER The Habeas Corpus Act 2001IN THE MATTER OF An application with regard to theimprisonment of Christian Titi Aspinall-Su'aBETWEEN SO'ONAALOFA SHARON: ASPINALL-SU'AApplicantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 31 August 2020Appearances: The Applicant in personR W Belcher for the RespondentJudgment: 2 September 2020JUDGMENT OF POWELL JThis judgment was delivered by me on 2 September 2020 at 4 pm pursuant toR 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] The applicant So'onaalofa Sharon Aspinall-Su'a has applied for a writ ofHabeus Corpus on behalf of her son, Christian Titi Aspinall-Su'a, Mr Aspinall-Su'ahaving been sentenced by Judge D J Harvey to two years and two months'imprisonment in the District Court at Manukau on 17 August 2020.[2] Ms Aspinall-Su'a made the application because of what she described was alack of transparency with regard to what had happened at Mr Aspinall-Su'a'ssentencing. Her concerns are perhaps best expressed at paragraph 21 of herapplication which reads as follows:Christian has been imprisoned by a false claim, a false process, false chargesthat keep adding up out of no incidents, and Christian has not been affordedhis rights to a fair and proper hearing.[3] Ms Aspinall-Su'a also expressed confusion as to how Mr Aspinall-Su'a couldhave ended up being imprisoned after she had agreed he could serve a sentence ofhome detention at her home, and was also concerned that the time Mr Aspinall-Su'ahad spent on remand had not properly been taken into account.[4] As Mr Belcher submitted on behalf of the respondent,1 to the extent thatMs Aspinall-Su'a is suggesting there were errors in Mr Aspinall-Su'a sentence, that isproperly a matter for appeal rather than use of the Habeus Corpus procedure.2 As Idiscussed with Ms Aspinall-Su'a, it is clear that Mr Aspinall-Su'a in fact pleadedguilty on 19 May 2020 and was then sentenced on 17 August 2020. Likewise, as Iattempted to explain to Ms Aspinall-Su'a at the hearing, it is not uncommon for Judgesto request pre-sentence reports with "appendices" to enable the investigation of asuitable location for home detention, but whether home detention is appropriate is amatter for the sentencing Judge and is only finally available if the ultimate sentence istwo years' imprisonment or less. Finally, as Mr Belcher noted, s 82 of theSentencing Act 2002 specifically requires a sentencing Judge not to take into account1 Ms Aspinall-Su'a's application as originally filed included the sentencing Judge, the NZ Police, MrAspinall-Su'a's lawyer and the author of Mr Aspinall-Su'a's s 27 cultural reports as respondents.After Mr Belcher confirmed that Mr Aspinall-Su'a was in the custody of the Department ofCorrections, Ms Aspinall-Su'a did not oppose orders releasing the other parties named and addingthe Chief Executive of the Department of Corrections as the correct respondent.2 See s 14(1A)(b) Habeas Corpus Act 2001.any pre-sentence detention. This is a matter to be calculated once a defendant hasbeen sentenced, pursuant to s 90 of the Parole Act 2002.[5] More fundamentally, following his sentencing Mr Aspinall-Su'a was detainedpursuant to a warrant of commitment for sentence of imprisonment issued by thesentencing Judge on 17 August 2020. This warrant documents Mr Aspinall-Su'a'ssentence of two years and two months' imprisonment. As the Court of Appeal notedin Bennett v Superintendent of Rimutaka Prison:3We are aware that, in formal terms the burden of proof rests on the applicantfor judicial review, whereas it is for the respondent to an application for habeascorpus to justify the detention. We are aware also that a writ of habeas corpusmust be issued if the respondent does not prove the lawfulness of the detention In practice, once a prison superintendent or other official named asrespondent produces a committal warrant or other authorisation – as therespondents have done in this case - it would then be necessary for anapplicant for habeas corpus to demonstrate that the documentation did not infact provide a lawful justification in a particular circumstances.[6] As Ms Aspinall-Su'a takes no issue with the warrant in this case, it thereforefollows that Mr Aspinall-Su'a's detention is lawful and, as a result, the applicationmust be, and is, dismissed._______________________________Powell J3 Bennett v Superintendent Rimutaka Prison, [2002] 1 NZLR 616 (CA) at [70].