Henderson v The Superintendent of Manawatu Prison [2005] NZCA 111 (19 May 2005)

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Henderson v The Superintendent of Manawatu Prison [2005] NZCA 111 (19 May 2005)

Last Updated: 1 June 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA27/05

BETWEEN CRAIG IAN HENDERSON
Appellant

AND THE SUPERINTENDENT OF MANAWATU PRISON
Respondent

Court: Anderson P, William Young and Robertson JJ

Counsel: Appellant in person
B Keith for Respondent

Judgment (on the papers): 19 May 2005

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Robertson J)

Introduction

[1]	This is an appeal against a judgment of Ronald Young J delivered in the High Court at Wellington on 1 February 2005 refusing an application for a writ of habeas corpus. It has been heard on the papers at the request of the parties.
[2]	On 11 February 2004, the appellant was convicted of 12 offences in the District Court at Levin and sentenced to an effective sentence of four years’ imprisonment. He appealed against that sentence. On 29 April 2004, in the High Court at Palmerston North, Wild J allowed the appeal and imposed a total effective sentence of three and a half years’ imprisonment.
[3]	The details of the initial sentences were as follows:

	Offence	Section	Maximum Penalty	Penalty Imposed
A	Obtaining credit through false pretences ($7,178 from Telecom)	Crimes Act, 247	1 year imprisonment	3 years
B	Failed to answer bail	Bail Act, s 37	1 year imprisonment or $1000 fine	2 months
C	Using a document for pecuniary advantage (Mobil card – 3 charges)	Crimes Act, 229A(b)	7 years’ imprisonment	1 year
D	Obtaining a document for pecuniary advantage (Mobil card)	Crimes Act, 246(2)(a)	7 years’ imprisonment
E	Theft of property over $300 (microwave, computer & stereo = $5,000)	Crimes Act, 227(ba)	7 years’ imprisonment	1 year
F	Theft of property under $100 (petrol $40 and $47 – 2 charges)	Crimes Act, 227(d)	3 months’ imprisonment	6 months
G	Conversion of a motor vehicle	Crimes Act, 228(1)	7 years’ imprisonment	1 year
H	Breach of parole	Criminal Justice Act 1985, s 107H	3 months’ imprisonment or $2,000 fine	1 month
I	Obtaining by false pretences ($600 from Ms Scott)	Crimes Act, 246(1)	7 years’ imprisonment	18 months

[4]	Wild J altered the sentences on categories A, C, G and I.

	Offence	Sentence quashed	Sentence substituted
A	Obtaining credit through false pretences ($7,178 from Telecom)	3 years	6 months
C	Using a document for pecuniary advantage (Mobil card – 3 charges)	1 year	1 year cumulative
G	Conversion of a motor vehicle	1 year	1 year cumulative
I	Obtaining by false pretences ($600 from Ms Scott)	18 months	1 year cumulative
Total effective sentence			31/2 years

[5]	The Judge noted there had been an error in the sentencing in respect of the offence under s 247 of the Crimes Act 1961 (Category A), but did not pick up that there was an error also in respect of the two sentences for theft of property under $100 (Category F) where six month concurrent terms were imposed when the maximum permitted was three months’ imprisonment.
[6]	The application for habeas corpus was advanced, first on the grounds that the High Court lacked jurisdiction to hear the appeal on 29 April 2004 as at least one of the charges had been laid indictably and the appeal ought to have been to the Court of Appeal. Ronald Young J noted that this aspect was essentially abandoned before him and it has not been raised again in this Court.
[7]	The second ground raised in the High Court was that the imposition of a penalty in excess of the statutory maximum on some of the convictions invalidated the sentence as a whole. It is upon that ground that the appeal was advanced in this Court.

Submissions

[8]	Although Mr Henderson traversed numerous areas in support of his contention, the matter can be conveniently summarised in its essentials. His submission is:

(a) that the imposition of a sentence in excess of a statutory maximum is ultra vires and of no effect;
(b) following the reasoning of this Court in R v Nahkla (No 2) [1974] 1 NZLR 453 a sentence finally recorded cannot be altered;
(c) consistent with the reasoning in R v Willesden Justices, ex p Utley [1948] 1 KB 397, a Court cannot, on quashing a sentence which was imposed in excess of the statutory maximum, impose a correct sentence in substitution. The appellant says this reasoning was followed in R v Cameron [1976] 2 NZLR 194;
(d) Section 372 of the Crimes Act 1961 can have no application because it deals "primarily with the procedure on an indictable charge";
(e) If the High Court sentences are a nullity, the appellant cannot be detained on the sentences imposed in the District Court which were not in excess of jurisdiction because they cannot be severed. In any event the appellant has already served more than the length of imprisonment involved in those charges.

[9]

The Crown, in response, contended that the inclusion of a penalty in excess of the statutory maximum does not invalidate the sentence as a whole. The error is a matter for correction by the Court under either s 372 of the Crimes Act 1961 or by way of appeal. No actual injustice has arisen as a result of what has occurred. Proper mechanisms which are available for correction could always be availed of and the position is no longer an issue.

Conclusion

[10]	In our judgment, the matter is clear and unequivocal. There were three sentences imposed in the initial District Court that were beyond the statutory maximum permitted. Although the direct consequences were ameliorated by the fact that there were concurrent sentences, they were in error.
[11]	Appeal is a mechanism specifically to deal with such a problem. The High Court has all the necessary power under s 121 of the Summary Proceedings Act 1957 to deal with a sentence which the District Court had no jurisdiction to impose.
[12]	In the appeal heard by Wild J, one of those errors was corrected. Two remained undealt with, although they had no effect or consequence upon the issue of the overall effective sentence as is clearly demonstrated by the subsequent Minute of Wild J of 10 February 2005.
[13]	Similarly, under s 144 of the Summary Proceedings Act 1957, the appellant could appeal to this Court to deal with the other two errors which appear to have been overlooked by everyone concerned in the High Court hearing.
[14]	At times in his submission, the appellant appeared to argue that errors with regard to a sentence in excess of the statutory maximum meant that the conviction itself became invalid. There is no basis for that position. The fact that there are express statutory provisions to correct an erroneous sentence makes it abundantly plain that such a sentence is not a nullity.
[15]	In the submissions, a good deal of the material related to s 372 of the Crimes Act 1961 but it is not imported into the Summary Proceedings Act 1957 by the provisions of s 3 thereof. However, a similar statutory approach exists in s 77 of the Summary Proceedings Act 1957 which provides:

77. Power of the Court to amend defective sentences –
(1) If on the conviction of the defendant the Court [imposes a sentence or makes an order that is not within the jurisdiction of the Court to impose or make], or does not impose a sentence or make an order that it is required by law to impose or make, then, at any time thereafter, unless proceedings in relation to the conviction are pending in the [High Court], the [District Court Judge] who presided over the Court, or, if that [District Court Judge] is not available or if the Court was presided over by one or more Justices [or by one or more Community Magistrates], any [District Court Judge], may set aside any sentence or order imposed or made and impose a sentence and make an order that is within the jurisdiction of the Court or that the Court is required by law to impose or make, and all necessary alterations shall be made in any warrant or other document and in [the Criminal Records] kept pursuant to section 71 of this Act] to give effect thereto.
(2) The powers conferred by this section may be exercised from time to time in respect of the same conviction.

[16]	It is clear that, in both the District Court and the High Court, there are provisions to enable correction of sentences which have been imposed in excess of jurisdiction and there is no reason to restrict or confine their operation.
[17]	There were sentences imposed which were beyond jurisdiction. Like any other order of the Court they subsist until set aside. In this case, they were able to be challenged and corrected by various statutory mechanisms available. The excessive sentences did not affect the underlying convictions nor the other sentences.
[18]	Importantly in this case, although it is regrettable that there were errors and they were not all corrected in the first place, that had no actual affect on whether or not Mr Henderson was detained. It was not a matter which, in the circumstances, could possibly justify the issue of an order for habeas corpus.
[19]	As this Court made clear in Bennett v Superintendent Rimutaka Prison [2002] 1 NZLR 616, habeas corpus is a discretionary remedy. It will not normally issue in circumstances where there are adequate alternative remedies available. In the present case the injustice asserted is illusory. There is proper and lawful detention under the sentences as confirmed in the High Court on the initial appeal.
[20]	There is no justification for interfering with what occurred there, apart from the need to correct the concurrent six month sentences on the two theft charges. That can and should be dealt with, but it will have no effect on the actual detention of Mr Henderson.
[21]	The appeal against the refusal to grant habeas corpus is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington