Aspinall-Su'a v Chief Executive of the Department of Corrections

[2020] NZHC 2256

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1412

[2020] NZHC 2256

UNDER

The Habeas Corpus Act 2001

IN THE MATTER OF

An application with regard to the
imprisonment of Christian Titi Aspinall-Su’a

BETWEEN

SO’ONAALOFA SHARON: ASPINALL- SU’A

Applicant

AND

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

31 August 2020

Appearances:

The Applicant in person

R W Belcher for the Respondent

Judgment:

2 September 2020

JUDGMENT OF POWELL J

This judgment was delivered by me on 2 September 2020 at 4 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

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

2256 [2 September 2020]

[1]                 The applicant So’onaalofa Sharon Aspinall-Su’a has applied for a writ of Habeus Corpus on behalf of her son, Christian Titi Aspinall-Su’a, Mr Aspinall-Su’a having 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 a lack of transparency with regard to what had happened at Mr Aspinall-Su’a’s sentencing. Her concerns are perhaps best expressed at paragraph 21 of her application which reads as follows:

Christian has been imprisoned by a false claim, a false process, false charges that keep adding up out of no incidents, and Christian has not been afforded his rights to a fair and proper hearing.

[3]                 Ms Aspinall-Su’a also expressed confusion as to how Mr Aspinall-Su’a could have ended up being imprisoned after she had agreed he could serve a sentence of home detention at her home, and was also concerned that the time Mr Aspinall-Su’a had spent on remand had not properly been taken into account.

[4]                 As Mr Belcher submitted on behalf of the respondent,1  to the extent that     Ms Aspinall-Su’a is suggesting there were errors in Mr Aspinall-Su’a sentence, that is properly a matter for appeal rather than use of the Habeus Corpus procedure.2 As I discussed with Ms Aspinall-Su’a, it is clear that Mr Aspinall-Su’a in fact pleaded guilty on 19 May 2020 and was then sentenced on 17 August 2020. Likewise, as I attempted to explain to Ms Aspinall-Su’a at the hearing, it is not uncommon for Judges to request pre-sentence reports with “appendices” to enable the investigation of a suitable location for home detention, but whether home detention is appropriate is a matter for the sentencing Judge and is only finally available if the ultimate sentence is two years’ imprisonment or less. Finally, as Mr Belcher noted, s 82 of  the Sentencing Act 2002 specifically requires a sentencing Judge not to take into account

1 Ms Aspinall-Su’a’s application as originally filed included the sentencing Judge, the NZ Police, Mr Aspinall-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 of Corrections, Ms Aspinall-Su’a did not oppose orders releasing the other parties named and adding the 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 has been sentenced, pursuant to s 90 of the Parole Act 2002.

[5]                 More fundamentally, following his sentencing Mr Aspinall-Su’a was detained pursuant to a warrant of commitment for sentence of imprisonment issued by the sentencing Judge on 17 August 2020. This warrant documents Mr Aspinall-Su’a’s sentence of two years and two months’ imprisonment. As the Court of Appeal noted in Bennett v Superintendent of Rimutaka Prison:3

We are aware that, in formal terms the burden of proof rests on the applicant for judicial review, whereas it is for the respondent to an application for habeas corpus to justify the detention. We are aware also that a writ of habeas corpus must be issued if the respondent does not prove the lawfulness of the detention

… In practice, once a prison superintendent or other official named as respondent produces a committal warrant or other authorisation – as the respondents have done in this case … - it would then be necessary for an applicant for habeas corpus to demonstrate that the documentation did not in fact provide a lawful justification in a particular circumstances.

[6]                 As Ms Aspinall-Su’a takes no issue with the warrant in this case, it therefore follows that Mr Aspinall-Su’a’s detention is lawful and, as a result, the application must be, and is, dismissed.

Powell J

3      Bennett v Superintendent Rimutaka Prison, [2002] 1 NZLR 616 (CA) at [70].