Hanning v Chief Executive of the Department of Corrections HC Wellington CIV 2010-485-1965

[2010] NZHC 2052

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2010-485-1965

UNDER  the Habeas Corpus Act 2001

BETWEEN  PAUL KENNETH HANNING Applicant

ANDTHE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing:         12 October 2010

Counsel:         P K Hanning (In person) Applicant

V Casey for Respondent

Judgment:      12 October 2010

ORAL JUDGMENT OF MILLER J

[1]      Mr Hanning has moved for a writ of habeas corpus.  He is a serving prisoner having been sentenced on 13 May 1988 to life imprisonment for murder.

[2]      In his written application Mr Hanning invoked two grounds.   He first said that he was 17 when the offence occurred, therefore a minor.   He invoked international   instruments   for   the   proposition   that   life   imprisonment   without possibility of parole cannot be imposed on minors.  I observe that the possibility of parole has not been denied him;   indeed he has twice been released on parole (in

2000 and 2002) only to be recalled most recently on 16 July 2004.  Second, he said that when remanded in custody before trial he was for nine months held in conditions

that required he associate with adult offenders.

PAUL KENNETH HANNING V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC WN CIV 2010-485-1965  12 October 2010

[3]      Under s 14 of the Habeas Corpus Act the Judge must inquire into the facts but I may not call into question a conviction imposed or a sentence passed by a Court of competent  jurisdiction.[1]     To the  extent that it challenged the  sentence Mr Hanning’s application was improper.

[1] T v Regional Intellectual Care Agency [2007] NZCA 208, [2007] NZAR 643 at [7]-12].

[4]      As the Court of Appeal held in Bennett v Superintendent, Rimutaka Prison, habeas corpus is normally confined to matters capable of sensible summary determination.[2]     Seldom is it the right process for administrative law challenges upstream of an apparently regular warrant.   His challenge to the conditions of his detention appear to fall into that category.  And as I have explained to him today, the Crimes Act and the Bail Act together expressly contemplate that a 17-year old may not only be convicted of murder and sentenced to life imprisonment but also held in custody pending trial.

[2] Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 at [62].

[5]      In this case the warrant  is regular in form, and it is consistent with the conviction and sentence imposed.  That being so, this is not a proper case for habeas corpus.  To his credit, Mr Hanning acknowledged that when he appeared before me today, explaining that he had now read the papers filed for the respondent and that he had misunderstood the legal position.  I express no criticism of him for bringing the application for habeas corpus.  Regrettably, I am not able to respond to his request for advice as to how better to advance his case, because the grounds relied upon do not appear to afford him any basis for challenging his sentence.

[6]      The application for habeas corpus is dismissed.

Miller J

Solicitors:

Crown Law, Wellington for Respondent