van Syp v Chief Executive of the Department of Corrections

[2024] NZHC 1213

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2024-419-114

[2024] NZHC 1213

UNDER

Habeas Corpus Act 2001, New Zealand Bill of Rights Act 1990 and the Parole Act 2002

IN THE MATTER

of a writ of Habeas Corpus under the Habeas Corpus Act 2001, New Zealand Bill of

Rights Act 1990 and the Parole Act 2002

BETWEEN

Regan van Syp Applicant

AND

Chief Executive of the Department of Corrections

Respondent

Hearing:

15 May 2024

Appearances:

Applicant in person

J Hamilton for Respondent

Judgment:

15 May 2024

ORAL JUDGMENT OF WILKINSON-SMITH J

Solicitors/Counsel: Hamilton Law, Hamilton R van Syp

van Syp v Chief Executive of the Department of Corrections [2024] NZHC 1213 [15 May 2024]

Introduction

[1]                 Mr van Syp has applied for a writ of  habeas  corpus  pursuant  to  the  Habeas Corpus Act 2001. He submits that his current detention in prison is unlawful.

[2]                   The respondent named in the application was the Attorney General. There is no dispute that the respondent should correctly be named as the Chief Executive of the Department of Corrections. Ms Hamilton appearing on behalf of the Crown invites me to make that amendment by consent. Mr van Syp takes no issue with that, and I make  the  amendment  by  consent  so  that  the  respondent  is  named  as   the Chief Executive of the Department of Corrections.

[3]                 The respondent opposes the application and submits that Mr van Syp is lawfully detained pursuant to a warrant of commitment.

Background

[4]                 Mr van Syp is serving a custodial sentence for historic sexual offending committed when he was aged between 18 and 21 years old. One of the complainants was a young person and he is therefore classified as a child sexual offender.

[5]                 Mr van Syp has now served three years and eight months of a six year sentence. He has undertaken some rehabilitation programs while in custody. He has also engaged in privately funded psychological treatment.

[6]                 On 9 April 2024, Mr van Syp appeared before the Parole Board. He was not granted parole. He tells me that this was the third occasion that he had appeared before the Parole Board. He says that the Parole board based the decision to decline parole on erroneous and irrelevant material and failed to take into account relevant information.

[7]                 He has filed separately an application for review  of the decision pursuant to  s 67 of the Parole Act 2002. He has not received notification of any hearing date for that review resulting in what he says is a lack of urgency and undue delay.

[8]                 I note that the s 67 application was filed two weeks ago and within the 28 day timeframe.

Discussion

[9]                 A writ of habeas  corpus provides  a remedy for unlawful  detention.  Under  s 14(1) of the Habeas Corpus Act the onus is on the respondent to establish that the detention of the applicant is lawful. If the respondent fails to do that, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person.

[10]             In this case, I have viewed the warrant of commitment for the sentence of imprisonment which confirms that the applicant is subject to a sentence of imprisonment imposed on 3 November 2021 for a term of six years. Based on that the applicant is prima facie lawfully detained.

[11]             Section 14(1A) of the Habeas Corpus Act further provides that an application for a writ of habeas corpus may be refused where such an application is not the appropriate procedure for considering the allegations made by the applicant.

[12]             It is well established that an application for a writ of habeas corpus is not a vehicle for litigating the reasonableness of decisions of the Parole Board.1 Such decisions are amenable to review under 67 of the Parole Act and there is also an avenue for judicial review. That is a process that this applicant has already commenced.

[13]             Application for a writ of habeas corpus is an inappropriate means of challenging the decision of the Parole Board. I understand the applicant’s frustration at the time delay, but he will have to follow the usual review processes.

1      Huata v Chief Executive, Department of Corrections [2013] NZHC 3569 at [10].

Result

[14]The application for a writ of habeas corpus is declined.

Wilkinson-Smith J