Hawkins v Chief Executive of the Department of Corrections

[2015] NZHC 565

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000150 [2015] NZHC 565

BETWEEN

SHANE EDWARD HAWKINS

Applicant

AND

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Defendant

Hearing:	25 March 2015
Appearances:	A Bailey for Applicant B Hawes for Defendant
Judgment:	25 March 2015

ORAL JUDGMENT OF GENDALL J

[1]      Shane Edward Hawkins was sentenced in the District Court on 30 January

2015 to serve four months’, 14 days’ home detention.  The approved address was

Flat 3, 13 Bordesley Street, Christchurch.

[2]      On 20 March 2015 Mr Hawkins was at the approved address.  On that date it seems the occupants of the Bordesley Street address wished to revoke consent for Mr Hawkins to reside at that address because he had allegedly acted in a threatening manner.  Mr Hawkins was therefore no longer able to reside at the Bordesley Street address.   Effectively, as I have noted, the occupants of the address had revoked consent for him to reside there.  Subsequently, it seems he was unable to provide an alternative address which he has accepted.

[3]      As a result he was arrested for breach of his home detention conditions pursuant to s 80S(a) of the Sentencing Act 2002 for failing to reside at his address without  reasonable  excuse.     This  carries  a  maximum  penalty  of  one  year

imprisonment and/or a fine of up to $2000.

HAWKINS v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2015] NZHC 565 [25

March 2015]

[4]      On Saturday 21 March 2015 Mr Hawkins appeared before two Justices of the Peace when an application for bail was made.  He was declined bail.  The Court at that point was also advised that an application from the Department of Corrections would be forthcoming to cancel the sentence of home detention which would be replaced by a sentence of imprisonment.  Mr Hawkins then reappeared in the District Court on Monday 23 March 2015 where he pleaded not guilty to the charge.

[5]      A warrant of detention directing Mr Hawkins’ detention in a prison was issued on that day, 23 March 2015.  Also on that day an application to cancel the home detention sentence and substitute it with a sentence of imprisonment was filed by a probation officer in the District Court pursuant to s 80F of the Sentencing Act.

[6]      It is my understanding that the first call of that application in the District Court has been scheduled for later this afternoon, 25 March 2015.   It is also my understanding, which has been confirmed by counsel for Mr Hawkins, that no formal appeal of the District Court decision refusing bail given on 23 March 2015 has been made.

[7]      On an application under s 80F of the Sentencing Act the Court may make various orders, including the cancellation of home detention and substituting it with a sentence of imprisonment.  Under s 80F(4)(a) the Court may bail an offender or remand an offender in custody if the application cannot be determined immediately.

[8]      Accordingly it seems the applicant’s custodial status could be considered today,  25  March  2015,  so  far  as  the  application  to  cancel  the  home  detention sentence is concerned, while I note that bail has been refused on the charge of breaching home detention conditions.  No appeal of that bail decision has as yet been brought.

[9]      Mr Hawkins now brings the present application for habeas corpus on the basis that he maintains he is currently unlawfully detained.  The basis for this, as I understand it, is that he was arrested whilst within the designated electronic monitoring area in terms of his home detention order.  Thus the claim of unlawful

detention is predicated on an assertion that the arresting constable could have no good cause to suspect that Mr Hawkins had committed the offence.

[10]     Applications  for  habeas  corpus  fall  within  the  exclusive  purview  of  the Habeas Corpus Act 2001.   Applications are brought by way of originating applications.  Applications are to be given precedence over all other matters before the High Court unless a Judge of that Court considers that circumstances otherwise require.   Proceedings must therefore be disposed of as a matter of priority and urgency and in any event an inter-partes hearing must be set down within three working days after the application is filed.   The application in this case, as I understand it, was filed in the afternoon of 23 March 2015.

[11]     Section 14 of the Habeas Corpus Act 2001 sets out how applications are to be determined.  Of relevance, the onus is on the defendant to establish that the detention is lawful.  A Judge dealing with such application must enquire into the matters of fact and law claiming to justify the detention, and is not confined in that enquiry to the correction of jurisdictional errors.  However, there is a bar against calling into question “a ruling as to bail by a court of competent jurisdiction” – s 14(2)(b) Habeas Corpus Act 2001.

[12]     Mr Hawkins has been denied bail.  In my view if he wishes to challenge that decision he ought to appeal.   On this basis alone I am unable to go behind the decision refusing bail.  Nonetheless, it seems Mr Hawkins’ complaint is that on the evidence he cannot be guilty of the offence charged.  As I see it, that is a defence to the charge to be ventilated at trial.

[13]     Mr Hawkins’ detention here in my view is lawful.  Thus habeas corpus is not the appropriate procedure, as I see it, for dealing with that issue in this regard and I refer to s 14(1A)(b) Habeas Corpus Act 2001.   The application before me is dismissed.

...................................................

Gendall J

Solicitors:

Andrew Bailey, Christchurch

Raymond Donnelly & Co, Christchurch