Whichman v Registrars of the Manukau District Court
[2018] NZHC 1585
•29 June 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-000294
[2018] NZHC 1585
UNDER The New Zealand Bill of Rights Act 1990 IN THE MATTER
of the Manukau District Court
BETWEEN
GEORGE WHICHMAN
Plaintiff
AND
THE REGISTRARS OF THE MANUKAU DISTRICT COURT
Defendants
Hearing: 25 June 2018 Appearances:
G Whichman in person (via AVL) S M Kinsler for the Defendants
Judgment:
29 June 2018
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Friday, 29 June 2018 at 12:15 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors: Meredith Connell, Wellington Copy to: G Whichman, Auckland
WHICHMAN v THE REGISTRARS OF THE MANUKAU DISTRICT COURT [2018] NZHC 1585 [29 June 2018]
[1] George Whichman is a sentenced prisoner. On 21 February 2018, he filed a handwritten document in the High Court at Auckland entitled “Statement of Claim”. He has named himself as the plaintiff and the Registrars of the Manukau District Court as the defendants. It has been treated by the Court as an application for judicial review of administrative actions undertaken by the Manukau District Court.
[2] On 27 April 2018, the defendants filed an application to strike out the statement of claim together with an affidavit sworn by Robert Neems, a Court Service Manager at the Manukau District Court.
[3] In response, Mr Whichman filed an amended statement of claim and two more handwritten documents responding to the defendants’ strike out application.
[4] On 25 June 2018, I heard argument on the strike out application. Mr Whichman appeared for himself by way of AVL from prison and Mr Kinsler appeared for the Registrars of the Manukau District Court. Following the hearing I reserved my decision. This is now my decision on the strike out application.
Mr Whichman’s complaints
[5] Broadly speaking, Mr Whichman alleges that the Registrars collectively have corruptly abused their positions of trust and authority by fabricating court records relating to him, which has caused bias and prejudice against him and violated his fundamental rights under the New Zealand Bill of Rights Act 1990. In particular, Mr Whichman alleges breaches of ss 62(3), 65 and 184 of the Criminal Procedure Act 2011. They provide:
62 Further provisions relating to giving sentence indication
…
(3) Every sentence indication must be recorded by the court.
65 Request for sentence indication not admissible in proceeding
The fact that a defendant made a request for a sentence indication is not admissible in evidence in any proceeding.
184 Permanent court record
(1)Courts conducting criminal proceedings must continue to maintain a permanent court record of the formal steps in those proceedings.
(2)Courts must maintain the permanent court record in accordance with rules of court.
(3)The permanent court record is, subject to the power of the court to amend it, conclusive evidence of the matters recorded in it.
[6] Mr Whichman’s complaints originate in a sentence indication decision given by Judge CJ McGuire on 10 January 2017. At that time Mr Whichman was in custody and facing charges of unlawful possession of a sawn off shotgun and unlawful possession of shotgun shells. Judge McGuire indicated that if Mr Whichman pleaded guilty to both charges he would be sentenced to a total of 22 and a half months imprisonment. On 13 January 2017, Mr Whichman is recorded as refusing the sentence indication. He therefore remained in custody awaiting trial.
[7] Judge McGuire’s decision was typed and signed by him. However, it was incorrectly labelled as “Notes of Judge CJ McGuire on Sentencing”. It also commences with the words “This is a sentence for George Whichman”. The last three paragraphs are as follows:1
[16] That makes a discount of seven and half months resulting in an end sentence today of 22 and a half months imprisonment. Since that is below two years there will be release conditions imposed and they are to reside at an address supplied by you and not to move from that address without the prior written approval of the probation officer, not to contact or otherwise associate directly or indirectly with [five named persons] and other victims of your offending unless you have the prior written approval of a probation officer. You are to undertake any other counselling and treatment as directed by the probation officer. You are to attend a psychological assessment and attend and complete any treatment/counselling as recommended by the psychological assessment to the satisfaction of your probation officer and treatment provider.
[17] You are not to possess or consume alcohol or illicit drugs unless prior written consent to given [sic] by the probation officer to consume alcohol. You are to submit to a breath screening test as required by the police or Community Corrections staff. You are not to have contact or otherwise associate directly or indirectly with [10 named persons] without the prior written approval of your probation officer.
[18] Mr Whichman, can I just say this? You are 27 years old. One of the reasons for strict conditions is to get your life on rails and to result in you doing what you are asked to do, be where you are asked to be and so on. That is the way you get back into real society. That is the way you get when you hold down a job and so on. For you it is going to be a long way back I know and I echo for what it is worth what Woodhouse J said you have got to do it for yourself, no one else, and what that is going to mean is giving up some of
1 R v Whichman [2017] NZDC 14962.
those people who you have till now called friends but that is the only way it is going to happen. I wish you luck.
The sentence indication decision can therefore be mistaken for the actual sentence imposed on Mr Whichman. As we shall see, it was indeed subsequently mistaken for the actual sentence.
[8] As noted, Mr Whichman remained in custody awaiting trial. At some stage prior to 14 July 2017, Mr Whichman pleaded guilty to the ammunition charge and sought a further sentence indication on the firearm charge. On 14 July 2017, Judge GT Winter gave a further sentence indication of 22 and a half months imprisonment in total. This time it was accepted by Mr Whichman and on the same day he was sentenced to 22 and a half months imprisonment on both charges. Both Judge Winter’s sentence indication decision and notes on sentencing were typed and signed by the Judge. The notes on sentencing in their entirety read:
[1] Mr Whichman has listened to the sentencing indication remarks and provided his counsel with instructions in open Court that he accepts that is a full-time sentence of imprisonment. Accordingly, I adopt my sentence indication remarks as his sentence, noting that he waives a right to a pre- sentence report, understands that the end sentence is a full term of imprisonment of 22 and a half months and the sentence of the Court is accordingly passed.
[2]There is six months’ standard release conditions attached.
[3]There are orders for destruction made, thank you.
[9] Judge Winter’s notes on sentencing therefore have to be read with the sentence indication decision to explain the basis of the sentences imposed. In the sentence indication decision, Judge Winter made reference to Judge McGuire’s earlier sentence indication decision, but said that he had reached his own independent view. He stated:
[2] I have to adopt a broad and practical approach to that section of the Act [relating to a second or subsequent sentence indication] and I will do so upon the basis Mr Whichman’s request that I reconsider the sentence indication and determine a sentence that is equivalent to that originally indicated by my brother Judge McGuire earlier this year, but rejected initially by Mr Whichman. I have reviewed my brother Judge’s sentence indication, but I independently form my own view.
[10] On 24 July 2017, a Court Registry Support Officer at the Manukau District Court emailed Judge McGuire’s sentence indication decision of 10 January 2017 and
Judge Winter’s two decisions of 14 July 2017 to counsel and to the Department of Corrections in accordance with the relevant instruction to court staff that sentencing notes for all custodial sentences are to be sent to the Department of Corrections. The Department of Corrections has an agreement with the Ministry of Justice that all judges’ sentencing notes are provided to Corrections within 10 days. Sentencing notes are required for a number of reasons, including sentence planning and offender management, administration of the sentence and management of offenders at risk to themselves. The Judge’s sentencing notes are read on receipt and checked against warrant of commitment information that has been loaded onto IOMS (Integrated Offender Management System) with any anomalies checked with the appropriate court as soon as possible.
[11] It appears that this documentation was then provided to the Parole Board pursuant to the Department of Corrections statutory obligations under s 43 of the Parole Act 2002, which requires the Department to provide the Board with “copies of all relevant information relating to the offender’s current and previous convictions, including (for example) sentencing notes and pre-sentence reports”.2
Approach to strike out
[12] Rule 15.1(1) of the High Court Rules 2016 sets out when the court may strike out all or part of a pleading:
15.1 Dismissing or staying all or part of proceeding
(1)The court may strike out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the court.
2 Mr Whichman came under the purview of the Parole Board when sentenced on unrelated offending to a cumulative term of 25 and a half months imprisonment on 14 December 2017.
[13] A minority of the Supreme Court addressed the approach in Couch v Attorney- General:3
It is inappropriate to strike out a claim summarily unless the court can be certain that it cannot succeed. The case must be “so certainly or clearly bad” that it should be precluded from going forward. Particular care is required in areas where the law is confused or developing.
Discussion
[14] I consider that the Manukau District Court should not have forwarded Judge McGuire’s sentence indication decision dated 10 January 2017 to the Department of Corrections as it was not accepted by Mr Whichman. But the Court was not in breach of the Criminal Procedure Act in doing so. It has not been admitted in evidence in any proceeding in breach of s 65.
[15] The mis-description of Judge McGuire’s sentence indication decision as the “Notes of Judge CJ McGuire on Sentencing” has, however, led to further difficulties. Mr Whichman was also facing charges of injuring with intent to injure (x 2), assault with a blunt instrument and threatening to kill. On 9 August 2017, Judge Wharepouri gave Mr Whichman a sentence indication on the four violence charges in which he made an incorrect reference to Judge McGuire’s sentence indication decision of 10 January 2017 as being the sentence imposed on Mr Whichman for the firearm and ammunition charges. Judge Wharepouri stated:
[4] Following a different sentence indication exercise on the firearms matters, Mr Whichman pleaded guilty to those two charges and he was sentenced. The sentence handed down on those matters was 22 months and two weeks’ imprisonment. That sentence was passed by Judge McGuire on 10 January 2017. During that sentencing exercise Judge McGuire carried out an exercise where various uplifts were applied for offending whilst on bail and Mr Whichman’s previous convictions for firearms matters. Care will need to be taken to ensure that there is no double counting in the present exercise so as to disadvantage Mr Whichman.
[5] In light of the sentence imposed by Judge McGuire, the methodology I propose to adopt here is giving Mr Whichman a sentence indication on the basis that he comes to court and all charges, including the firearms matters, being embraced by the same. Taking a global view of his offending, I can then make an adjustment for the sentence that was passed in January 2017 and impose a short cumulative sentence that equates with the final sentence if the overall indication is accepted.
3 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
…
[24] Approaching the matter here, the question I ask myself is “What would have been the uplift for all of Mr Whichman’s previous convictions if he were being treated today on all matters?” My view is that three to six months would have been appropriate. Accordingly, I decline to apply any other uplift on top of what Judge McGuire imposed.
[25] I also decline to apply any other uplift for offending whilst on bail. That was a matter which Judge McGuire took into account and does not need to be addressed by me.
…
[27] I take into account that Mr Whichman has already been sentenced to 22 months two weeks on the firearms charges. Accordingly, on the four serious violence charges that are presently before the jury, he would be sentenced to 25 months two weeks cumulative on the sentence already imposed for the firearms matters.
[28] I am prepared to extend Mr Whichman the possibility of further adjustment downwards depending on the contents of the positive pre-sentence report genuine expressions of remorse and a successfully completed and positive restorative justice conference. That is my sentence indication.
[16] I am advised by Mr Whichman that he subsequently accepted the sentence indication under pressure and was sentenced to a cumulative sentence of 25 and a half months imprisonment, which made the total sentence of imprisonment currently being served by Mr Whichman one of four years imprisonment.
[17] I am also advised by Mr Whichman that he has now appealed to the Court of Appeal against conviction and sentence on the four violence charges. He says that Judge Wharepouri did not have the power to give a sentence indication because s 61 of the Criminal Procedure Act 2011. Section 61(1) provides that a court may give a sentence indication, but only at the request of the defendant made before trial. I do not know what, if any, other grounds of appeal are being advanced by Mr Whichman.
[18] Mr Whichman has, however, now provided me with a copy of the index to the Case on Appeal. It shows that the Notes of Judge CJ McGuire on Sentencing dated 10 January 2017 have been included with the materials to be considered by the Court of Appeal. It is unfortunate that Judge McGuire’s sentence indication decision has been mistakenly accepted as the notes on sentencing for the firearm and ammunition charges to which Mr Whichman subsequently pleaded guilty. However, I am unable
to see where any provision of law has been breached. There is nothing to suggest that this is anything other than a mistake.
[19] Finally, Mr Whichman complains that the Manukau District Court has wrongfully entered the length of post-release conditions following his sentence of 22 and a half months imprisonment as 12 months, rather than six months as imposed by Judge Winter. However, this time, it is Mr Whichman who is mistaken. The notation on his criminal and traffic history actually reads:
Imprisonment (Concurrent) –
14/107/2017 – 14 days, 10 months, 1 Year, Standard Release
Conditions
[20] Properly interpreted, the length of the post-release conditions has not in fact been entered. The one year specified is part of the term of imprisonment imposed of one year, ten months and 14 days (or 22 and a half months). Nonetheless, it should be made clear that the standard release conditions applied only for six months. Section 93(2)(a) of the Sentencing Act 2002 provides that if a court sentences an offender to a term of imprisonment of more than 12 months, but not more than 24 months, the standard conditions apply to the offender until the sentence expiry date unless the court specifies a different date. Here, Judge Winter specified a different date and it should be made clear on Mr Whichman’s criminal and traffic history.
Result
[21] Mr Whichman’s statement of claim does not disclose a reasonably arguable cause of action. The actions of the Manukau District Court staff are not in breach of ss 62(3), 65 or 184 of the Criminal Procedure Act nor is there any evidence to suggest that they are in breach of s 113 of the Crimes Act 1961, which relates to the fabrication of evidence. Finally, the sections of the New Zealand Bill of Rights Act referred to by Mr Whichman have no relevance to his complaints.4
4 Section 19 (Freedom from discrimination), s 21 (Unreasonable search and seizure), s 23(5) (Rights of persons arrested or detained), s 24 (Rights of persons charged), s 25(a), (e) and (h) (Minimum standards of criminal procedure), s 26(2) (Retroactive penalties and double jeopardy) and s 27(1) (Right to justice).
[22] Mr Whichman’s statement of claim is, therefore, struck out as not disclosing a reasonably arguable cause of action.
[23]I do, however, have the following recommendations for the defendants:
(a)Rename Judge McGuire’s sentence indication decision as “Notes of Judge CJ McGuire on Sentence Indication”.
(b)Record on the last page of Judge McGuire’s sentence indication decision that on 13 January 2017, Mr Whichman declined the sentence indication.
(c)Write to the Department of Corrections as a follow-on from the email of 24 July 2017, noting that Judge McGuire’s sentence indication decision dated 10 January 2017 was sent to them in error as Mr Whichman did not accept the sentence indication.
(d)Request that the Court of Appeal amend its casebook in Mr Whichman’s appeal, CA738/2017, to delete the notes of Judge CJ McGuire on sentencing dated 10 January 2017 and substitute the notes of Judge GT Winter on sentence indication and notes of Judge GT Winter on sentencing, both dated 14 July 2017.
(e)Mr Whichman’s criminal history be amended to accurately record the standard release conditions imposed by Judge GT Winter were for a period of six months only.
(f)Mr Whichman’s request for all his sentencing notes from 2006 to 2018 and all emails to and from the Manukau District Court between 10 January 2017 and 28 December 2017 that relate to him be treated as a request under the Official Information Act 1982.
Woolford J
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