Misiuk v Chief Executive of the Department of Corrections HC Auckland CRI-2011-404-0050 [2011] NZHC 670 (22 June 2011)

Last Updated: 19 July 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2011-404-0050}

PAWEL MARIAN MISIUK

Applicant

v

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing: 21 June 2011

Appearances: Applicant in person

Ms F Cuncannon for Respondent

Judgment: 22 June 2011 at 4:30 PM

JUDGMENT OF LANG J

_{[on application for habeas corpus]}

This judgment was delivered by me on 22 June 2011 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date...............}

MISIUK V CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC AK CRI-2011-404-0050

22 June 2011

[1] Mr Misiuk asks the Court to issue the writ of habeas corpus releasing him from prison.

[2] The grounds for the application are contained in the transcript of a hearing that I conducted on 17 June 2011. I conducted that hearing as a result of an earlier Minute issued by Brewer J on 14 June 2011, in which he directed an urgent hearing of Mr Misiuk’s application.

[3] This is not the first occasion on which Mr Misiuk has sought such an order. He has applied unsuccessfully to this Court on no less than four previous occasions for release under the writ. On each of those occasions he was in custody on remand pending the disposition of several charges laid in the indictable jurisdiction of the District Court.

[4] The position has now changed, because following a very lengthy Judge alone trial in the indictable jurisdiction of the District Court at Auckland, Mr Misiuk is now a sentenced prisoner.

Grounds advanced

[5] His Honour Judge Field delivered an oral verdict on 6 April 2011 in which he found Mr Misiuk guilty on all but two of the charges that he faced1. On 18 April

2011 the Judge sentenced Mr Misiuk to four years imprisonment on the lead charge of burglary, and concurrent shorter sentences of imprisonment on all but one of the remaining charges. He imposed a cumulative sentence of one month on the remaining charge of escaping from custody.

[6] Mr Misiuk contends that he was the subject of a gross miscarriage of justice by virtue of events that occurred on 6 and 18 April 2011, and that this justifies the Court ordering his immediate release.

[7] Mr Misiuk alleges that, after Judge Field delivered his oral decision on

_{6 April 2011, the Judge made comments to the effect that Mr Misiuk would be}

1 R v Misiuk DC Auckland CRI-2010-004-004873, 15 April 2011(transcript)

released on bail immediately because of the period that he had already spent in custody on remand. At that time the Crown indicated to the Court that it proposed to seek a sentence in the range of three to four years imprisonment.

[8] Mr Misiuk maintains that when the Judge said that he proposed to release Mr Misiuk on bail pending sentence, a security officer2 called out from the rear of the Court and told the Judge that he could not release Mr Misiuk on bail. This led to Mr Misiuk remaining in custody until he was sentenced.

[9] When Mr Misiuk arrived at Court prior to sentencing on 18 April 2011, he says that he was visited in the cells by the Crown prosecutor and Mr Kidd, a solicitor who had assisted him informally during the course of the trial. At that stage one charge remained to be resolved. This was the charge of escaping from custody, in respect of which Mr Misiuk had entered a plea of not guilty. Mr Kidd told Mr Misiuk that there was no prospect of him being released from custody unless he entered a guilty plea to this charge. Mr Misiuk says that, against his better judgment, he entered a guilty plea to that charge before sentencing commenced. He did so under the mistaken impression that this would enable him to receive a sentence that would result in his immediate release. To his consternation, however, the prosecutor told the Judge that the Crown now sought a sentence in the range of four and a half to five years imprisonment. It was against that background that the Judge sentenced

Mr Misiuk to an effective term of four years and one month imprisonment.3

[10] Mr Misiuk contends that the Judge was wrong to follow the instructions of the security officer who told him not to release Mr Misiuk on 6 April 2011. The Judge was equally wrong to impose a sentence in excess of that sought by the Crown at the hearing on 6 April 2011.

[11] Mr Misiuk says that the Judge could not convict him on the basis of the evidence at trial. He also argues that the sentences that the Judge imposed upon him

_{were completely disproportionate to the gravity of his actions. Finally, he contends}

2 _{Identified by Mr Misiuk as “Jacko” or Mr Jackson}

3 R v Misiuk DC Auckland CRI-2010-004-004873, 18 April 2011

that he has been the victim of serious discrimination because of his Polish nationality, his extravagant political views and his gender.

[12] Mr Misiuk submits that these factors combine to render his sentence a violation of international law and his imprisonment since 6 April 2011 arbitrary. He has also been denied the freedoms guaranteed to him under s 22 of the New Zealand Bill of Rights Act 1990.

Decision

[13] Counsel for the respondent reminds me that in Manuel v Superintendent of Hawkes Bay Regional Prison4 the Court of Appeal emphasised5 that the habeas corpus procedure will only be appropriate where the arguments in issue are properly susceptible to fair and sensible summary determination.

[14] Virtually all of the issues that Mr Misiuk has raised relate to the manner in which he was prosecuted by the Crown and ultimately convicted and sentenced by Judge Field. All of those matters are, in my view, substantive issues to be determined by the Court of Appeal when it considers the appeal that Mr Misiuk has lodged against his convictions and sentence. They are not amenable to determination using the habeas corpus procedure.

[15] Mr Misiuk was committed to prison on 18 April 2011 on the basis of warrants of commitment that Judge Field issued on that date under s 91 of the Sentencing Act

2002. Provided those warrants are valid, Mr Misiuk is currently validly detained.6

[16] Counsel for the respondent has provided me with copies of the warrants that the Judge signed. They appear to be regular on their face with one possible exception. This relates to the information contained on each warrant regarding the

_{issue of Mr Misiuk’s legal representation at trial.}

4 _{Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA)}

5 _{Fn 4 at [49]}

6 Misiuk v Chief Executive of the Department of Corrections [2011] 2 NZLR 114 at 25

[17] The warrants of commitment contain the following information in relation to that issue:

Legal representation

The offender was legally represented (as contemplated by s 30(1) of the Sentencing Act 2002) at the stage of the proceedings at which the offender was at risk of conviction.

[18] This issue is relevant because, where a person is not represented by counsel at his or trial, s 91(3) of the Sentencing Act 2002 requires any subsequent warrant of commitment to state the manner in which s 30(1) of the Act has been satisfied. Sections 30(1) and (2) of the Act provide:

30 No sentence of imprisonment to be imposed without opportunity for legal representation

(1) No court may impose a sentence of imprisonment on an offender who has not been legally represented at the stage of the proceedings at which the offender was at risk of conviction, except as provided in subsection (2).

(2) Subsection (1) does not apply if the court is satisfied that the offender—

(a) was informed of his or her rights relating to legal representation, including, where appropriate, the right to apply for legal aid under the Legal Services Act 2000; and

(b) fully understood those rights; and

(c) had the opportunity to exercise those rights; and

(d) refused or failed to exercise those rights, or engaged counsel but subsequently dismissed him or her.

...

[19] If the notation of appearances in the transcript of Judge Field’s verdict on 6

April 2011 is correct this information is wrong, because the transcript records that Mr Misiuk appeared in person. When he gave evidence before me, however, Mr Misiuk said that the transcript incorrectly described him as appearing in person. He said that he had been represented by Mr Kidd at his trial. If that is the case, it means that the information contained on the warrant is correct. The transcript of the Judge’s sentencing remarks certainly records that Mr Kidd appeared as Mr Misiuk's

counsel on 18 April 2011, and made submissions on his behalf in relation to the issue of sentence.

[20] Although this issue may not be relevant given Mr Misiuk’s view of Mr Kidd’s status at trial, I do not consider that any failure to comply with s 91(3) would invalidate the entire warrant. Rather, a failure to comply with the requirements of s

30(2) may provide a substantive ground of appeal. I reach this conclusion because s

30(3) of the Act provides:

(3) If, on any appeal against sentence, a court finds that a sentence was imposed in contravention of subsection (1), the court must either—

(a) quash the sentence imposed and impose in substitution for it any other lawful sentence that the court thinks ought to have been imposed; or

(b) quash the conviction and direct a new hearing or trial, or make any other order that justice requires.

[21] Whether or not there has been a failure to comply with s 30(2) may be a complex issue. It will require a careful examination of how the judge dealt with the issue of self-representation at the commencement of the trial. That is an exercise suitable for determination using the appeal process. It is not suitable for resolution using the necessarily summary procedure that applies to an application for habeas corpus. The fact that Parliament has specifically provided appeal rights in relation to a failure to comply with s 30(2) confirms, in my view, that any substantive objection that Mr Misiuk raises in relation to his representation must be determined on appeal.

[22] For these reasons I am satisfied that the remedy of habeas corpus is not available in the circumstances of the present case.

Result

_{[23] The application is dismissed.}

Lang J

Solicitors:

Crown Solicitor, Auckland

Copy to:

Applicant