Van Wakeren v Chief Executive of the Department of Corrections [2013] NZCA 71 (20 March 2013)

Last Updated: 27 March 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA93/2013 [2013] NZCA 71

BETWEEN RONALD VAN WAKEREN Appellant

AND CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing: 5 March 2013

Court: Ellen France, Keane and Miller JJ

Counsel: Appellant in person A R Longdill for Respondent

Judgment: 20 March 2013 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.
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REASONS OF THE COURT

(Given by Keane J)

[1] Ronald Van Wakeren is serving a total effective sentence of imprisonment of 12 years, three months, subject to a minimum period of imprisonment of six years, as the result of a decision of this Court, on his appeal against sentence, dated 3 October 2011.[1]
[2] In the District Court Mr Van Wakeren had been sentenced to imprisonment for 13 years, three months, for six distinct series of offences. On his appeal this Court held that his total sentence was not manifestly excessive, but that one constituent term was excessive for a reason particular to that aspect of his sentence. It reduced that six year term to five years and his total sentence by one year. It set aside, as beyond jurisdiction, a global seven year minimum period of imprisonment, and imposed cumulatively two minimum terms, totalling six years.
[3] The Supreme Court declined Mr Van Wakeren’s application for leave to appeal[2] and he applied for a writ of habeas corpus which the High Court declined on 26 January 2012.[3] This Court upheld that decision and Mr Van Wakeren was declined leave to appeal by the Supreme Court.[4] He was not deterred.
[4] After that Mr Van Wakeren made a series of further such applications, which were not accepted by the High Court Registry, because s 15 of the Habeas Corpus Act 2001 bars further applications that raise “substantially the same questions as those considered by the Court when the earlier application was refused”. The Registry did accept, however, Mr Van Wakeren’s most recent application, dated 1 January 2013.
[5] When Mr Van Wakeren made this last application he was no longer detained, as he had been when he first applied, under the warrant of imprisonment this Court issued following his appeal against sentence, dated 3 October 2011. He was detained under an amended warrant this Court issued on 10 July 2012 and his principal grounds for seeking immediate release had also mutated.
[6] On 8 February 2013 Courtney J declined this application and on this appeal against her decision, as on that application, Mr Van Wakeren contends firstly that he is being detained unlawfully, and is entitled to immediate release, on two interrelated grounds.
[7] One is that he has been in custody for in excess of five years and has served the only sentence this Court imposed on him validly on his appeal, the five year term this Court imposed itself. In affirming his sentence otherwise, he contends, this Court dismissed his appeal against the balance of his sentence. It did not and could not impose on him itself his total sentence, 12 years, three months.
[8] The other is that the amended warrant of imprisonment, dated 10 July 2012, is invalid insofar as it requires him to be detained beyond five years. He could, he accepts, perhaps have been detained beyond five years under the warrants issued in the District Court, giving effect to the terms of imprisonment this Court affirmed. But, he contends, this Court nullified those warrants when it issued invalidly its own two global warrants.
[9] Mr Van Wakeren also advances two other grounds of appeal. Courtney J, he contends, erred in not deeming to be invalid his five year sentence, because it was founded on a six year sentence imposed in the District Court relying improperly on two victim impact statements. She erred also, he contends, in not deeming his minimum term to be invalidated by this Court’s error in not issuing that order with the amended warrant under which he is presently held.
[10] This appeal turns primarily on Mr Van Wakeren’s first ground in which he puts in issue the scope of this Court’s decision on his appeal against sentence. To resolve that issue we must first refer to his first habeas corpus application and its fate. Though his grounds for seeking his immediate release may have mutated, they rest on a premise then rejected; and that in itself, we consider, is fatal to his appeal.
[11] Though Courtney J declined Mr Van Wakeren’s application on its merit, we consider that she could equally have held it to be barred, like the earlier rejected applications, by s 15 of the Habeas Corpus Act. Despite that we will resolve his appeal on its merits; and we begin by confirming our right as a Divisional Court to do so.
[12] As we assured Mr Van Wakeren when he put this in issue, those of us who are Judges of the High Court (Keane and Miller JJ) were then, and remain for the purpose of giving this decision, expressly authorised to hear and resolve both civil and criminal appeals;[5] and our ability in these respects is beyond challenge.[6]

First habeas corpus application

[13] At the date of his first application, Mr Van Wakeren had been in custody for some four years, and he challenged as invalid his six year minimum term. He contended that on his appeal against sentence this Court only had the ability to impose on him the three year, four month minimum term it attached to the five year term that it imposed by way of sentence, and that this minimum term had expired.
[14] Mr Van Wakeren’s second principal point was that the original warrant of imprisonment that this Court issued, dated 3 October 2011, requiring that he be detained for the total sentence this Court affirmed on appeal, 12 years, three months, was invalid because it doubled one two year constituent term to four years.
[15] In his decision, dated 26 January 2012, Toogood J held Mr Van Wakeren’s central point misconceived. Mr Van Wakeren, he held, had appealed his total sentence as well as some of the constituent terms. To resolve his appeal this Court had to review every aspect of his sentence and to re-sentence him completely. It had the right to attach cumulative minimum terms to two of his constituent sentences each imposed cumulatively. He remained subject to a six year minimum term.
[16] The Judge held that the error in the warrant was of no moment. The total term for which the warrant required Mr Van Wakeren to be detained, 12 years, three months, was supported by accurately stated concurrent and cumulative terms.
[17] In dismissing his appeal, this Court stated that Mr Van Wakeren’s challenge to his minimum term was beyond the scope of a writ of habeas corpus and was an illegitimate attempt to revisit that aspect of his sentence. Nor did it serve the purpose of the writ. It could not secure his immediate release. It could only advance the date on which he became eligible for parole. He remained subject to his total sentence.

Decision under appeal

[18] On this, his most recent application before Courtney J, Mr Van Wakeren relied on the fact that he has been held in custody for in excess of five years, and again contended that he had completed the only term of imprisonment that the amended warrant dated 10 July 2012 validly imposed.[7]
[19] Under s 385(3) of the Crimes Act 1961, he contended, this Court on an appeal against sentence had either to dismiss his appeal, or to quash his sentence and replace it with another, or to vary it, or remit the case back to the sentencing Court. This Court, he once again said, only quashed his six year sentence. It affirmed every other constituent sentence. As to those it dismissed his appeal.
[20] Under s 91(8) of the Sentencing Act 2002, Mr Van Wakeren then contended, this Court could only issue a warrant of imprisonment in respect of the five year sentence it imposed itself and, consequently, it lacked power to issue the two warrants requiring that he be detained for 12 years, three months.
[21] Had this Court confined itself to a five year warrant, Mr Van Wakeren conceded in principle the District Court warrants as to each of his other constituent sentences might have continued to subsist and have required that he be detained beyond five years. But by issuing two global warrants beyond its power this Court nullified those warrants, he said. Presently, he contended, he is not being held under any valid warrant.
[22] Courtney J, like Toogood J on Mr Van Wakeren’s first application, rejected this argument and for the same reason. On the sentence appeal, she held, this Court had to review Mr Van Wakeren’s sentence in its constituent parts and in totality. All aspects were in issue, even if not the subject of any express challenge.[8] This Court, she held, “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”.[9]
[23] Thus, Courtney J held, Mr Van Wakeren continues to be lawfully detained under the amended warrant, dated 10 July 2012, issued validly under s 91(8) of the Sentencing Act.

First ground of appeal

[24] On this appeal, Mr Van Wakeren first contends, Courtney J's conclusion is at odds with s 385(3) of the Crimes Act, which confines this Court on a sentence appeal to the three responses it prescribes, none of which enabled this Court to affirm the sentences under appeal by imposing those sentences itself. It could only dismiss his appeal against those sentences, which remained imposed by the sentencing Court.
[25] In this, Mr Van Wakeren assumes that on his appeal against sentence this Court was faced with an appeal against six sentences, to each of which it had to respond discretely under s 385(3). That is incorrect. This Court was faced with an appeal against Mr Van Wakeren’s total sentence, 13 years, three months; a single sentence combining concurrent and cumulative terms of imprisonment, integrated under the totality principle.[10] It was that single integrated sentence to which s 385(3) applied.
[26] This Court did not allow Mr Van Wakeren’s appeal against his total sentence on the ground that it was manifestly excessive, when measured against the totality principle. It did affirm his sentence in its constituent parts except as to the six year term it reduced to five years. But by then reducing his total sentence by that one year it allowed his appeal against his complete sentence.
[27] We agree, therefore, with Courtney J that on the sentence appeal this Court did re-sentence Mr Van Wakeren completely and that he continues to be lawfully detained under the amended warrant dated 10 July 2012, subject only to his two remaining grounds of appeal.

Second and third grounds of appeal

[28] We see no merit in Mr Van Wakeren’s second ground of appeal putting in issue the validity of his five year sentence, because the sentencing Judge in the District Court imposed a six year term improperly relying, as Mr Van Wakeren contends, on two victim impact statements. Courtney J was right to hold that any such error became academic the moment this Court quashed that six year sentence.
[29] Nor do we see any merit in Mr Van Wakeren’s third ground of appeal that his minimum term was invalidated because this Court omitted to attach the related order to the amended warrant, dated 10 July 2012, and corrected that retrospectively. That order was imposed in the exercise of this Court’s jurisdiction on appeal, and that omission was a clerical error well able to be corrected later.[11]
[30] Courtney J was right then to conclude that she had no basis to go behind the amended warrant and that order and that, in any event, even if the order were rendered invalid that could not affect the legality of Mr Van Wakeren’s detention. It could only go to his eligibility for parole, the very point resolved by this Court on his appeal following the refusal of his first application.

Result

[31] Mr Van Wakeren’s appeal is dismissed.

Solicitors:
Crown Solicitor, Auckland for Respondent

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[1] Van Wakeren v R [2011] NZCA 503.
[2] Van Wakeren v R [2011] NZSC 147.

[3] Van Wakeren v Chief Executive of the Department of Corrections HC Auckland CIV-2012-404-208, 26 January 2012.

[4] Van Wakeren v Chief Executive of the Department of Corrections [2012] NZCA 22; Van Wakeren v Chief Executive of the Department of Corrections [2012] NZSC 24; Van Wakeren v Chief Executive of the Department of Corrections [2012] NZSC 65 (application for recall dismissed).
[5] Judicature Act 1908, ss 58A and 58B.
[6] Section 58G.
[7] Van Wakeren v Chief Executive of the Department of Corrections [2013] NZHC 144.
[8] R v Hadley [2003] 2 NZLR 88 (CA).
[9] Van Wakeren, above n 7, at [12].
[10] Sentencing Act 2002, ss 83, 84 and 85; R v Hadley, above n 8.

[11] Court of Appeal (Criminal) Rules 2001, r 45B.