Misiuk v Chief Executive of the Department of Corrections [2011] NZCA 318 (11 July 2011)

Last Updated: 20 July 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA416/2011 [2011] NZCA 318

BETWEEN PAWEL MARIAN MISIUK Appellant

AND CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Defendant

Hearing: 6 July 2011

Court: Glazebrook, Rodney Hansen and MacKenzie JJ

Counsel: Mr Misiuk for himself A R Longdill and F J Cuncannon for Respondent

Judgment: 11 July 2011 at 10.30 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

B Costs of $500 are awarded to the respondent

REASONS OF THE COURT

(Given by Glazebrook J)

Introduction

[1] Mr Misiuk appeals against a decision of Lang J dated 22 June 2011 dismissing his application for a writ of habeas corpus. [1]

Background

[2] After a trial before Judge Field, Mr Misiuk was convicted on 6 April 2011 on ten out of the twelve charges he faced. He was remanded in custody for sentencing. Mr Misiuk claims that initially he was to be released on bail but that the Judge changed his mind at the urging of a security officer.[2]
[3] On 18 April 2011 Mr Misiuk entered a guilty plea for a further charge (relating to escaping from custody in October 2010). On that day, Judge Field sentenced Mr Misiuk to a total of four years and one months’ imprisonment relating to all the charges. The lead charge was one of burglary and the sentence on that charge was one of four years imprisonment.[3]
[4] Following sentencing Judge Field signed warrants of commitment under s 91 of the Sentencing Act 2002.
[5] Mr Misiuk is pursuing an appeal against his conviction and sentence.
[6] Mr Misiuk was first remanded in custody on 29 May 2009. He spent approximately two and a half years in custody on remand. We understand that a parole hearing is scheduled for September.

Our assessment

[7] A number of the matters Mr Misiuk sought to raise before us relate to his convictions and sentence. This includes the alleged incident at the time of his conviction on 6 April 2011.[4] Matters relating to Mr Misiuk’s conviction and sentence cannot be pursued through an application for habeas corpus.[5]
[8] Mr Misiuk also raised a number of procedural issues with the way the habeas corpus application was dealt with. Even if those allegations were made out (and the respondent disputes them), they cannot result in the appeal being allowed, provided that Mr Misiuk is otherwise lawfully detained.
[9] Mr Misiuk is currently detained pursuant to the warrants of commitment signed by Judge Field.[6] These arose from the sentences imposed by Judge Field. The convictions and resulting sentences remain valid unless they are set aside on appeal. Further, although Mr Misiuk spent some two and a half years on remand, this is less than the four years imposed on the lead charge. This means that Mr Misiuk is lawfully detained in accordance with the warrants of commitment signed by Judge Field.

Costs

[10] The respondent seeks costs on the basis that Mr Misiuk has made a series of unmeritorious habeas corpus applications.
[11] Mr Misiuk has pursued four separate applications for habeas corpus since being detained in May 2009.[7] Mr Misiuk has also had an appeal to this Court dismissed.[8]:. An application for leave to appeal to the Supreme Court was refused.[9]
[12] We accept the Crown’s submission that a moderate award of costs is appropriate in this instance. [10]

Result

[13] The appeal is dismissed.
[14] Costs of $500 are awarded to the respondent.

Solicitors:
Crown Law Office, Auckland for Respondent

---

[1] Misiuk v Chief Executive of the Department of Corrections HC Auckland CRI-2011-404-50, 22 June 2011.
[2] The full details are set out in Lang J’s judgment at [7] – [10].

[3] The escaping custody charge resulted in a cumulative sentence of one month. All the other charges resulted in concurrent sentences.

[4] See at [2] above.
[5] Section 14(2)(a) Habeas Corpus Act 2001.
[6] See at [4] above.

[7] Misiuk v Superintendent of a Penal Institution [2011] 1 NZLR 393 (23 September 2010, dismissed by Dobson J); Misiuk v Superintendent of a Penal Institution HC Auckland CIV 2010-404-6625, 8 October 2010 (dismissed by Dobson J); Misiuk v Chief Executive Department of Corrections HC Auckland CIV 2011-404-1346, 14 March 2011 (dismissed by Lang J) and Misiuk v Chief Executive Department of Corrections HC Auckland CRI 2011-404-50, 22 June 2011 (dismissed by Lang J).

[8] Misiuk v Chief Executive Department of Corrections [2010] NZCA 480, [2011] 2 NZLR 114

[9] Misiuk v Chief Executive of Corrections [2011] NZSC 140, [2011] 2 NZLR 120.
[10] See discussion in Manuel v Superintendent Hawkes Bay Prison [2006] 2 NZLR 63 at [34]–[35].