IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-000516 [2013] NZHC 144

BETWEEN	RONALD VAN WAKEREN Appellant

AND	THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing:	7 February 2013

Appearances: Applicant in person
A R Longdill for Respondent

Judgment:	8 February 2013

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 8 February 2013 at 4.30 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………….

Solicitors:	Meredith Connell, P O Box 2213, Auckland 1140
Fax: (09) 336-7629 – A Longdill

Copy to:	R van Wakeren, P O Box 92625 Symonds Street, Auckland 1150

VAN WAKEREN V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC AK CIV-
2013-404-000516 [8 February 2013]

Introduction

[1]     Ronald van Wakeren is serving concurrent and cumulative terms of imprisonment totalling 12 years three months on a variety of dishonesty offences, including theft of military medals from the National Army Museum (the Operation Valour charges).  He is also subject to cumulative minimum periods of imprisonment totalling six years.

[2]       Mr van Wakeren has made several applications for writs of habeas corpus. Toogood J declined the first and that decision was upheld on appeal.   The Registry refused to accept the others for filing on the ground that they raised substantially the same issues as were determined in the first application and were therefore precluded by s 15 of the Habeas Corpus Act 2001.

[3]       Mr van Wakeren has now applied for a writ of habeas corpus under the

Habeas Corpus Act 2001 on the grounds that:

(a)	The Warrant for Imprisonment detaining him has expired;

(b)	The sentence on the Operation Valour charge is unlawful; and

(c)	The order for the minimum period of imprisonment is unlawful.

[4]        After hearing argument from counsel for the Chief Executive and from
Mr van Wakeren in person I dismissed the application with my reasons to be given later. These are my reasons.

.

The Warrant for Imprisonment

[5]       Mr van Wakeren was originally sentenced over the period between February

2008 and June 2010 in relation to seven sets of offending.  The sentences totalled 13 years three months with a minimum period of imprisonment of seven years.  Mr van Wakeren appealed all the sentences.  The result of the appeal was recorded in the Court of Appeal’s 3 October 2011 judgment as follows:

(A)       The appeal against conviction on the two money laundering counts is allowed. The convictions are quashed.

(B)       The appeal against the total sentence of 13 years and three months imprisonment is allowed.  We impose instead a total sentence of 12 years and three months imprisonment as follows:

(i)         A sentence of six years imprisonment relating to the burglary of  the  National Army  Museum is  quashed  and  instead  a sentence of five years imprisonment is imposed;

(ii)       All other sentences are confirmed including the cumulative and concurrent effect;

(C)	The minimum period of imprisonment of seven years is quashed;

(D)       We impose a total minimum period of imprisonment of six years imprisonment in the following way:

(i)         A minimum period of imprisonment of three years and four months in relation to the five year sentence of imprisonment on the charge of burglary with respect to the National Army Musuem cumulative on;

(ii)       A minimum period of imprisonment of two years and eight months imprisonment with respect to the four year sentence of imprisonment on the Operation Kea and Operation Prince (Part 1) charges.

[6]       The Court of Appeal issued a warrant which was subsequently found to be defective.    An amended warrant signed by Stevens J was issued on 10 July 2012. The amended warrant authorises detention in relation to 78 charges, of which one, count 28, is the Operation Valour charge.  Mr van Wakeren asserts that this warrant
is invalid insofar as it relates to charges other than the Operation Valour charge and,

since he has now served the term imposed in respect of that charge, he should be released.

[7]	Mr van Wakeren’s argument turns on s 385 of the Crimes Act 1061 and s

91(8) of the Sentencing Act 2002.  Section 385 provides that on an appeal against sentence the Court of Appeal may either dismiss the appeal or:

Determination of appeals in ordinary cases

(1AA)  This subsection applies to—

(a)        an appeal to the Supreme Court or the Court of Appeal against conviction:

(b)        an appeal to the Supreme Court against a decision of the Court of
Appeal on appeal under section 383 against conviction.]

(1)        On any appeal [to which subsection (1AA) applies, the Court of
Appeal or the Supreme Court must] allow the appeal if it is of opinion—

(a)        That the verdict of the jury should be set aside on the ground that it is  unreasonable  or  cannot  be  supported  having  regard  to  the evidence; or

(b)        That  the judgment  of  the  Court  before  which  the appellant  was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c)        That on any ground there was a miscarriage of justice; or

(d)        That the trial was a nullity—

and in any other case shall dismiss the appeal:

Provided that the Court of Appeal  [or the Supreme Court] may, notwithstanding that it  is of  opinion that the point raised in the appeal  might  be  decided in  favour  of  the  appellant,  dismiss  the appeal if it considers that no substantial miscarriage of justice has actually occurred.

(2)        Subject to the special provisions of this Part of this Act, the Court of Appeal  [or  the  Supreme  Court  must,  if  it  allows  an  appeal  to  which subsection  (1AA) applies], quash the conviction and in its discretion direct a judgment and verdict of acquittal to be entered, or direct a new trial, or make such other order as justice requires.

[(2A)   This subsection applies to—

(a)        an appeal to the Supreme Court or the Court of Appeal against sentence:

(b)	an appeal to the Supreme Court against a decision of the Court of
Appeal on appeal under section 383 against sentence.]

[(3)	On any appeal to which subsection (2A) applies, the Court of Appeal or the Supreme Court must—

(a)	dismiss the appeal; or

(b)	if it thinks that a different sentence should have been passed,—

(i)       quash the sentence and replace it with another sentence warranted  in  law  (whether  more  or  less  severe)  that  the Court thinks ought to have been passed; or

(ii)       vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it; or

(c)        remit the case to the Court that imposed the sentence with a direction that such Court take an action of the kind described in paragraph (b)(i) or (ii) in accordance with any directions given by the Court of Appeal or the Supreme Court as the case may be.]

[8]       Section 91(8) of the Sentencing Act provides that:

If the sentences imposed by the Court of Appeal, any Judge of that Court may sign the warrant for imprisonment.

[9]       Mr van Wakeren argued that the issuing of the amended warrant in relation to all the charges had the effect of quashing the District Court warrants.  However, he argued that the Court of Appeal only had jurisdiction to issue a warrant in respect of the Operation Valour charge because that was the only charge in respect of which a different sentence was imposed from that imposed in the District Court i.e. a new warrant should have been issued only in relation to that charge and the District Court warrants  relating  to  other  charges  left  untouched.    Consequently,  the  amended warrant is valid only in relation to the Operation Valour charge and since he has now served the sentence imposed on that charge he must be released.

[10]     The flaw in Mr van Wakeren’s argument is his assumption that the Court of Appeal was not the sentencing court in relation to all the charges.  The District Court imposed a sentence that reflected the totality of the offending, with each charge represented separately sentence within that figure.   Mr van Wakeren appealed that total sentence as well as individual sentences; the Court of Appeal summarised his sentence appeal as follows:

[23]      The main challenge by the appellant is to the appropriateness of the sentence in Operation Valour together with challenges to some individual sentences and the overall sentence 13 years and three months imprisonment and to the minimum period of imprisonment.

[11]     The Court of Appeal allowed the appeal against the total sentence.   The sentences that made up that total fell to be rearranged by the Court of Appeal as it thought right.  In R v Hadley Tipping J observed that:

[8]   … it is conventional and usually necessary in sentencing appeals for the Appellate Court to put itself in the position of the sentencing judge. If some aspect of two or more sentences imposed on a single occasion is found defective, it would be wholly unrealistic to take the view the sentencing Judge’s original intention could not be achieved, if appropriate and to the extent possible, by a re-arrangement of the ingredients of the total effective sentence. The rationale for this conclusion is that an appeal against one sentence necessarily puts in issue all related sentences.

(emphasis added)

[12]     The result was that it was the Court of Appeal that imposed all the sentences that made up the new total, even though all but one were the same as had been imposed by the District Court.  It follows that the amended warrant is valid.

Lawfulness of Operation Valour sentence

[13]     In   sentencing   Judge   Hubble   referred   to   victim   impact   reports   from Ms Upham  (whose  father’s  medals  had  been  among  those  stolen)  and  Colonel Seymour (the Director of the National Army Museum).  Mr van Wakeren complains Ms Upham was not a victim and that Colonel Seymour’s statement went beyond the
permissible scope of a  victim impact statement.     Mr van Wakeren  argued that

neither  statement  ought  to  have  been  taken  account  of  and,  as  a  result,  Judge

Hubble’s reasons were unlawful and therefore the sentence itself must be unlawful.

[14]     There is nothing in this ground.  The sentence imposed by Judge Hubble for the Operation Valour offending was quashed.  The Court of Appeal then became the sentencing court.  Whatever errors might have been made in the District Court are no
longer relevant.

Being unlawfully denied the opportunity to apply for parole

[15]      The Court of Appeal imposed a total minimum period of imprisonment of six years (three years four months on the Operation Valour charge and two years eight months on certain other charges, imposed cumulatively).   As noted, the warrant issued by the Court of Appeal was defective but the Supreme Court held that the legality of the detention was not affected.   The Court of Appeal subsequently issued the amended warrant.  In doing so, however, it omitted to issue the requisite Form 7
Order for Minimum Term of Imprisonment.   This omission was rectified, with an order being sent to the Department of Corrections under cover of a letter dated
1 October 2012.

[16]     Mr van Wakeren argued that the order for minimum period of imprisonment is invalid and that, since the amended warrant has expired (on his earlier argument), his  continued  detention  is  unlawful.    Self-evidently,  this  argument  depends  on Mr van Wakeren’s argument regarding the validity of the amended warrant being accepted.  For the reasons I have already discussed, I do not accept that argument.  It is therefore unnecessary to consider the reasons that Mr van Wakeren asserts that the order is invalid.  However, because of the possibility of Mr van Wakeren making a further application, I briefly canvas his argument.

[17]     It turns on the fact that when the Court of Appeal sent the amended warrant dated 10 July 21012 to the Department of Corrections it did not also send an order for minimum period of imprisonment, as it was required to do.  When that omission was drawn to the Court’s attention the order for minimum period of imprisonment dated 10 July 2012 was issued and sent to the Department of Corrections under cover of a letter that advised:

The warrant originally issued in October of last year contained soem errors. Mr van Wakeren brought these to the Court’s attention and on 10 July 2012 an amended warrant was issued.  Unfortunately the Form 7 was not attached as intended.

[18]     Mr van Wakeren’s complaint is that when he enquired of the Court of Appeal

if any orders, minutes or judgments were given at the same time as the amended

warrant he was advised there was not.  He therefore invited me to conclude that the order for minimum period of imprisonment had been back-dated and was invalid for that reason.

[19]     Not only do I have insufficient evidence to make a finding as to how the order for minimum period of imprisonment came to be issued, for present purposes that does not matter.  I can be satisfied that the detention is legal because the Crown has produced both an amended warrant and order for minimum period of imprisonment which are apparently valid.   There is no basis on which I might go behind those orders in the context of the present application.

[20]     In any event, the only effect of the minimum period of imprisonment is that Mr van Wakeren is precluded from applying from parole.  Impugning the order for minimum period of imprisonment would not affect the legality of the detention and could not, therefore, form the basis of a Habeas Corpus application.  This very point was dealt with by the Court of Appeal in its decision on the appeal against Toogood J’s  refusal  to  grant  habeas  corpus.      Mr van Wakeren  does  not  accept  that  the decision is correct and wishes to argue, relying on the Canadian decision in  Gamble v Queen  which recognised deprivation of liberty in various forms for the purposes of an order of habeas corpus.  However, not only is this argument precluded from being raised again in this context by s 15 of the Habeas Corpus Act, the point has been clearly settled by the Court of Appeal’s decision in Bennett v Superintendent,
Rimutaka Prison.

P Courtney J