Misiuk v Department of Corrections [2012] NZHC 527 (23 March 2012)

Last Updated: 19 April 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-1552 [2012] NZHC 527

BETWEEN PAWEL MARIAN MISIUK Applicant

AND DEPARTMENT OF CORRECTIONS Respondent

Hearing: 23 March 2012

Appearances: Applicant in person

A Longdill for the Respondent

Judgment: 23 March 2012

_{(ORAL) JUDGMENT OF WOODHOUSE J}

Solicitors/Parties:

Mr P M Misiuk, C/o Auckland Prison, Paremoremo, North Shore

Ms A Longdill, Meredith Connell, Office of the Crown Solicitor, Auckland

MISIUK V DEPARTMENT OF CORRECTIONS HC AK CIV-2012-404-1552 [23 March 2012]

[1] Mr Misiuk has applied for a writ of habeas corpus. He contends that his continued detention in prison is unlawful.

[2] In terms of the decisions of numbers of Courts Mr Misiuk was lawfully committed to prison following sentence for offences. Mr Misiuk has referred to various appeals and other proceedings relating to those matters, but no matter in relation to those decisions is before me for determination.

[3] On 24 January 2012 the Parole Board directed that Mr Misiuk be released on parole today (23 March 2012) “into the custody of the New Zealand Police or the New Zealand Immigration Service for immediate deportation from New Zealand to Poland”. There was also an order that Mr Misiuk not return to New Zealand.

[4] There is no challenge before me to that decision. At paragraph 22 of that decision the Parole Board said:

For all the reasons we have mentioned, therefore, Mr Misiuk will be released on parole for deportation. We expressly state that we are only considering his removal for deportation. If he were not to be deported that would require a fresh consideration by this Board because there are complications involving his ex-wife in New Zealand which need to be taken into account in considering release in this country.

[5] On 21 March 2012, without hearing from Mr Misiuk, the Board made another decision. It refers to the decision of 24 January. It records as follows:

2. We have now been told that because of difficulties in the deportation process, the deportation cannot proceed on 23 March 2012. He has been rebooked to depart New Zealand on Saturday 7 April 2012.

3. The 7th April is not a usual release day but in the unusual circumstances of this case, it is appropriate for Mr Misiuk to be deported on that day and pursuant to Section 28(5) the direction for release is amended so that the release date will now be 7 April 2012.

4. Under that Section, if the Board amends any direction, the Board is required to hold another hearing as soon as practicable. Such a hearing will be heard by video conference at 4.15pm on 28 March

2012.

5. The decision is amended accordingly.

[6] The habeas corpus application before me was brought before the Court yesterday by letter from a solicitor on behalf of Mr Misiuk. The letter records that the essence of the application is that there was a unilateral decision varying the release date without a hearing.

[7] Because of the nature of the application an urgent hearing was convened with Mr Misiuk on video link. Mr Misiuk has presented submissions on his own behalf (which the letter from the solicitor indicated was to occur).

[8] Mr Misiuk confirmed that the essence of his contentions are that his continued detention from today is unlawful, given the decision of 24 January, because:

(a) There was no hearing to vary the date.

(b) There are, in substance, no grounds for varying the date. (c) The decision is arbitrary.

[9] I am satisfied that Mr Misiuk’s continued detention beyond today is lawful.

[10] Leaving aside any questions of deportation, continued detention in custody is lawful in terms of warrants of commitment following sentencing. The release date, in terms of sentences, is not until some date in 2013.

[11] The 24 January decision, on its face, makes clear that release on 23 March was conditional upon immediate deportation on that date. The Board, for the reasons recorded in the subsequent decision, has determined that that could not occur. The Board was then bound to effectively direct that Mr Misiuk remain in custody.

[12] The Board has express statutory authority to act in the way it did, under the

Parole Act 2002, s 28(5), which is as follows:

28 Direction for release on parole

...

(5) The Board may revoke or amend any direction under this section at any time before the offender is released on parole, but, if it does so, the Board must hold another parole hearing as soon as practicable.

[13] Exercise of the power under s 28(5) requires the Board to hold another hearing as soon as practicable. A hearing has been scheduled for 28 March 2012. It is implicit in s 28(5), with the reference to a hearing “as soon as practicable”, that Parliament contemplates that the Board could make a decision to revoke or amend any direction without a hearing.

[14] I am also satisfied that in the circumstances of this case, where the sole reason for release was that Mr Misiuk be released into the custody of other agencies of the State for immediate deportation, that the steps taken by the Parole Board on 21

March were not only lawful (which is the critical matter for my consideration) but also entirely reasonable. If Mr Misiuk is not to be immediately deported (and he has raised issues in that regard although they are not for me to consider in this hearing) then by lawful order of Courts he is to remain in prison serving sentence.

[15] For these reasons the application for a writ of habeas corpus is declined.

[16] Following completion of my reasons for the decision as just recorded Mr Misiuk applied for leave to appeal to the Court of Appeal. I declined leave. In my judgment there is no reasonably arguable case that Mr Misiuk’s continued detention is unlawful. Mr Misiuk raised the possibility of applying for leave directly to the Court of Appeal. That is a matter for him and does not require to be addressed by

_me.

Woodhouse J