Smith v The Queen

[2019] NZHC 47

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-419-000017

[2019] NZHC 47

BETWEEN

MICHAEL RICHARD SMITH

Applicant

AND

THE QUEEN

Respondent

Hearing:

31 January 2019

Appearances:

M R Smith in person

A A R Pell for Respondent

Judgment:

31 January 2019

ORAL JUDGMENT OF WYLIE J

Solicitors:

Crown Solicitor, Hamilton

Copy to:

M R Smith

SMITH v R [2019] NZHC 47 [31 January 2019]

Introduction

[1]        Mr Smith seeks a writ of habeas corpus, pursuant to the Habeas Corpus Act 2001. He has filed comprehensive submissions in support of his application which I have read.

[2]        I have conducted the hearing by way of AVL, and I have heard from Mr Smith and Mr Pell, on behalf of the Crown.

[3]        Mr Smith asserts that he is illegally detained. He relies on the New Zealand Bill of Rights Act 1990 and he has referred me to a number of documents filed with his application, in particular, to a Parole Assessment Report dated 15 October 2018, to submissions filed by his counsel in relation to a parole hearing in November 2018, and to a decision of the Parole Board dated 22 November 2018. He has also referred me to a review decision given by Sir Ronald Young under s 67 of the Parole Act 2002 dated 14 January 2019.

[4]        Mr Pell says that Mr Smith is legally detained because he is serving a lawful sentence of imprisonment. He accepts that Mr Smith is eligible for parole, and notes that at each parole hearing to date, parole has been declined. He submits that detention, either until the sentence is served, or parole is earlier granted, is not unlawful.

Background

[5]The background to this matter is relatively straightforward.

[6]        On 24 July 2015 Mr Smith – under the name Michael Richard Levertoff – was sentenced in the District Court at Hamilton to terms of imprisonment in respect of some 21 charges of theft by a person in a special relationship. He was sentenced to five years’ imprisonment on one charge and to three years’ imprisonment on the remaining charges. The sentences were to be served concurrently. A copy of the warrant for commitment signed by the District Court Judge – Judge R L B Spear – was made available to me by Mr Smith.

[7]        Subsequently, on 25 September 2015, Mr Smith was sentenced to a further two years’ imprisonment on a further 13 charges of dishonesty, this additional sentence to

be served cumulatively. A copy of the warrant for committal for this additional sentence of imprisonment has not been made available to me. Mr Smith says that there was no warrant of committal. Mr Pell cannot confirm whether or not a warrant was issued. It is not disputed by Mr Smith that the additional two year sentence was imposed and it was to be on a cumulative basis.

[8]        Mr Smith had been initially convicted on 4 June 2015 and he was remanded in custody pending sentence on 24 July 2015. Both the sentence end date, and the statutory release date, are 3 June 2022.

[9]        Mr Smith is currently being held in the Spring Hill Corrections Facility, pursuant to the sentences of imprisonment which have been imposed on him.

Mr Smith’s complaint

[10]      Mr Smith’s complaint arises primarily from the way in which the Department of Corrections has dealt with him whilst he has been in custody.

[11]      No minimum periods of imprisonment were imposed, so Mr Smith became eligible for parole after the completion of one third of his sentence.

[12]      Mr Smith has appeared before the Parole Board on three separate occasions, most recently on 22 November 2018. The Parole Board takes the view that Mr Smith would benefit from participation in a medium intensity rehabilitation programme, or in a short rehabilitation programme, or, possibly, in an alcohol or drug treatment programme. The Board has declined to release Mr Smith on parole because it considers that he is an untreated prisoner who first needs rehabilitative treatment.

[13]      The difficulty from Mr Smith’s perspective is that the Department of Corrections will not make rehabilitation programmes available to him, because he is currently facing additional charges alleging historic violence by him against family members. Mr Smith has entered not guilty pleas to those charges and they are due to go to hearing in November of this year.

[14]      It appears, in particular from the review decision given by Sir Ronald Young, that the management at Spring Hill Corrections Facility has refused to provide

rehabilitation to Mr Smith as a sentenced prisoner, because he has these unresolved criminal charges. The Board has previously recommended “an override” to short circuit the Department of Corrections’ administrative decision. That recommendation does not seem to have been accepted or progressed.

[15]      Sir Ronald Young was critical of the Department of Corrections’ stance in his review decision. He commented that the Department’s stance effectively usurps the function of the Board, and that it means that Mr Smith’s interest in being granted parole, when the law provides he is eligible to be considered for parole, is compromised until an indeterminate date in the future. He also noted that the Department of Corrections’ approach can be seen as putting improper pressure on Mr Smith to plead guilty to the historic charges he faces so that he can undertake rehabilitation and then advance his claim to parole.

[16]      The Court can appreciate that Mr Smith feels aggrieved by the catch-22 situation he finds himself in. Nevertheless, these matters do not go to the legality of Mr Smith’s continued detention. Mr Smith is currently lawfully detained pursuant to the warrant of commitment issued by Judge Spear and pursuant to any additional warrant of commitment which may have issued in September 2015.

[17]      The Department of Corrections’ refusal to make rehabilitation available to Mr Smith can be challenged by other means. Indeed, the November 2018 decision made by the Parole Board declining Mr Smith parole has been quashed by Sir Ronald Young, and there is a new hearing before the Board in the week commencing 25 February 2019. That hearing may address Mr Smith’s concerns. Even if it does not do so, there are other avenues available to Mr Smith.

Result

[18]      The present application for habeas corpus is declined for the reasons I have set out.

Wylie J