Helsby-Knight v Chief Executive of the Department of Corrections

[2015] NZHC 977

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000979 [2015] NZHC 977

BETWEEN

MICHAEL HELSBY-KNIGHT

Applicant

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing:	8 May 2015
Appearances:	Applicant in Person D J Dufty for Respondent
Judgment:	8 May 2015

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            Mr Kaye, Auckland

Applicant

HELSBY-KNIGHT v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2015] NZHC 977 [8 May 2015]

[1]      Mr  Helsby-Knight  has  applied  for  a  writ  of  habeas  corpus.    There  is  a somewhat complicated procedural background to his application.

[2]      On 1 May Mr Helsby-Knight was before the District Court at Manukau. Following a sentence indication of Judge Andrée Wiltens that day Mr Helsby-Knight pleaded guilty to three charges.  The charges were one of using forged documents and two charges of taking or using a document for pecuniary advantage.

[3]      In the course of the sentencing indication Mr Helsby-Knight, who at that time was represented by Mr Kaye, was advised by the Judge that:

…  I  will  say  that  the  end  term  will  be  three  years,  four  months imprisonment.  You have been in custody for two and a half years which is more than that, so were you to plead to these matters today, the effect would be that you would not be incarcerated at all.   You would be released immediately for time served.

[4]      Mr Helsby-Knight, having received that indication, and having discussed the matter with counsel, entered a guilty plea and was sentenced accordingly by the Judge to three years, four months’ imprisonment.1   In his sentencing notes the Judge recorded as follows:

[1]. Mr Helsby-Knight for the reasons that I indicated earlier during the sentence indication hearing I am going to convict you and sentence you to three years four months’ imprisonment on the three charges concurrently.

[2]       By my reckoning you have more than served that already so it is a time served sentence.

[3]       As I understand the process that has to be worked out by somebody.

That should be done this afternoon hopefully, and if I get a fine’s report I will remit fines.

[4]       Under s 347 counts 4 - 117 are dismissed.

[5]      Unfortunately for Mr Helsby-Knight following that exercise he was returned to the cells for processing then taken to the prison where he has remained.

1      R v Helsby-Knight [2015] NZDC 7568.

[6]      On 6 May at 3.00 pm he made an application for writ of habeas corpus based on the indication given by the Judge that he would be released on the basis of time served.

[7]      The  application  for  habeas  corpus  has  been  called  before the  Court  this morning.   I have been assisted by Mr Dufty’s submissions on behalf of the Chief Executive and also by his submission wearing a second hat, for the Crown generally.

[8]      The starting point is that the application for habeas corpus cannot succeed.  I have had produced to me a valid warrant of commitment for sentence signed by the Judge confirming the imposition of the sentence of imprisonment of three years, four months on the three charges.

[9]      The warrant is a valid warrant and follows the provisions of the Parole Act

2002.  Section 76(1) of the Parole Act in particular applies:

76       General rules about start date of sentence of imprisonment

(1)      The start date of a sentence of imprisonment imposed after the commencement date is the date on which the sentence is imposed, except as otherwise provided in sections 77 to  81.

[10]     As a consequence the start date of the sentence is the date on which it imposed. A Judge cannot backdate a sentence to commence at an earlier time.

[11]     A further difficulty in the present case is that as the sentence is more than two years’ imprisonment Mr Helsby-Knight is subject to parole under the provisions of the Parole Act.  Mr Helsby-Knight is eligible for parole after a third of that sentence, but can only be released during the term of the sentence by the Parole Board.  As a consequence the clear intent of the District Court Judge in imposing the sentence cannot be achieved as matters presently stand.

[12]     For  the  above  reasons  the  application  for  a  writ  of  habeas  corpus  must formally be declined.   The Court is, however, sympathetic to the position that Mr Helsby-Knight finds himself in.   I am aware of the decision of Asher J in Carr v

Police2  where the Judge converted the hearing into an appeal against sentence.  In that case the Judge felt able, given the nature of the offending and the sentence initially imposed, to allow the appeal and to substitute a sentence of conviction and discharge.

[13]     I am not in a position to do that today for Mr Helsby-Knight.  I only have a bare and limited file directed at the issue of habeas corpus.  Apart from the Judge’s sentence indication and his brief sentence note, I have no further information before me, which would enable me to determine what an otherwise appropriate sentence might be or indeed if it was appropriate to deal with the matter as Asher J did in Carr.

[14]     However, as noted, I am sympathetic to the position Mr Helsby-Knight finds himself in.  It was clearly the intention of the District Court Judge that he not remain in custody.  For those reasons, after discussion with Mr Dufty and with Mr Helsby- Knight, I propose to accept from Helsby-Knight an oral application for leave to appeal against conviction and/or sentence, (leaving that open for Mr Helsby-Knight to take further advice on), and to grant Mr Helsby-Knight bail in the interim pending the hearing of that appeal.

[15]     Although  Mr  Helsby-Knight  has  spent  a  considerable  period  of  time  in custody pending resolution of these charges, he was more recently on EM bail.   I propose to grant him bail on most of the existing conditions that applied prior to his last appearance in the District Court which Gilbert J imposed on 5 February.

[16]     Those conditions are as follows:

(a)       pending the hearing of Mr Helsby-Knight’s appeal against conviction

and/or  sentence  Mr  Helsby-Knight  is  to  reside  at  27  Brownlie

Crescent, Huntly;

2      Carr v Police [2015] NZHC 865.

(b)he is to remain with the electronic boundaries at that address on a 24 hour curfew unless otherwise approved by the Department of Corrections EM bail team;

(c)      his passport is to remain with New Zealand Police.  He is not to apply for any replacement passport or travel document;

(d)Mr Helsby-Knight is not to possess, consume or use drugs other than prescribed medication;

(e)     Mr Helsby-Knight may attend such medical or dental or legal appointments as may be notified to the EM bail team.

[17]     Mr Helsby-Knight I also make it a condition that you file a formal application for leave to appeal conviction and sentence within a week of today, by 15 May 2015. If you do not you will be brought back to Court and taken into custody.

[18]     After further discussion with Mr Helsby-Knight as to the practicalities of the commencement of bail, Mr Helsby-Knight acknowledges he will spend a further night in custody.   He intends to travel by bus  to the Huntly address  tomorrow morning.

[19]     On that basis I direct that he be released on the above conditions of bail tomorrow morning, 9 May 2015, that he travel by the most direct route to the address at 27 Brownlie Crescent, Huntly;  and that the EM bail assessors meet him there at

3.00 pm tomorrow afternoon.

[20]     I attach copies of the Judge’s notes from 1 May 2015 to this decision.

Venning J