Van Wakeren v Chief Executive of the Department of Corrections [2012] NZHC 731 (26 January 2012)

Last Updated: 24 April 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-0208 [2012] NZHC 731

BETWEEN RONALD VAN WAKEREN Applicant

AND CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing: 25 January 2012

Counsel: Applicant in person

A Longdill for Respondent

Judgment: 26 January 2012

_{JUDGMENT OF TOOGOOD J}

This judgment was delivered by me on 26 January 2012 at 5.00 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ...............................

Solicitors: Meredith Connell, P O Box 2213, Auckland 1140

Copy to: Mr R van Wakeren, Private Bag 92-625, Symonds Street, Auckland 1150

Prison Manager, Mt Eden Correctional Facility.

VAN WAKEREN V DEPARTMENT OF CORRECTIONS HC AK CIV-2012-404-0208 [26 January 2012]

[1] Mr van Wakeren is serving a total effective sentence of imprisonment of 12 years and 3 months, with a minimum period of imprisonment for six years. Pursuant to a warrant signed by a Judge of the Court of Appeal on 3 October 2011, he is being detained by the Department of Corrections in terms of the sentences imposed. He has applied for the issue of a writ of habeas corpus,1 in an attempt to secure his immediate release from prison, on the broad ground that the imposition of a minimum period of imprisonment, initially by the District Court and then, on appeal, by the Court of Appeal, was unlawful.

[2] I record that at the commencement of the hearing of the application, Ms Longdill applied to substitute the Chief Executive of the Department of Corrections as respondent, in place of the Attorney-General who had been named in Mr van Wakeren’s application. Mr van Wakeren said that he had named the Attorney-General as the respondent because he considered that the errors of law leading to his unlawful detention had been made by judicial officers and that the Attorney-General was therefore the appropriate law officer to be named in the proceeding. As Ms Longdill said, however, it is the Department of Corrections which is detaining Mr van Wakeren and, accordingly, the Chief Executive of that Department is the appropriate respondent. Without conceding the point, Mr van Wakeren did not object to the substitution and I made an order accordingly.

[3] While it may seem that the minimum period of imprisonment is of no significance, being less than half the total effective sentence to be served by Mr van Wakeren, the applicant’s point is that if no minimum term was lawfully imposed, he would now be eligible for consideration of parole, having served over four years of his sentence.

[4] To understand the grounds advanced by Mr van Wakeren, it is necessary to summarise the nature of the offending for which he was sentenced in the District

_{Court and the matters dealt with by the Court of Appeal.}

1 Habeas Corpus Act 2011, s 6.

[5] Arising from his convictions for over 70 offences committed between 2003 and 2007, Mr van Wakeren received sentences effectively totalling 13 years and three months imprisonment. In February 2008, he was sentenced by Judge Gittos to two years and three months imprisonment and, on 22 October 2009, Judge Hubble sentenced him to a cumulative 11 years imprisonment.

[6] He appealed to the Court of Appeal against his conviction on two money laundering charges and those convictions were set aside upon the basis of a concession by the Crown. Before the Court of Appeal, in respect of the sentence appeals, it was submitted that some sentences making up the total sentence were individually manifestly excessive and that the overall sentence failed properly to take into account the totality principle and was, therefore, manifestly excessive. It was also argued that Judge Hubble did not have jurisdiction to impose a minimum period of imprisonment of seven years.

[7] The judgment of the Court of Appeal2 sets out how the overall sentence of 13 years three months imprisonment was made up in the following terms:

(a) Operation Kea (five charges of dishonestly using a document for a pecuniary advantage, 12 charges of using an altered document with intent to deceive) and Operation Prince (Part 1) (three charges of accessing a computer system for a dishonest purpose and seven of using an altered document with intent to deceive, alongside 12 further counts of the latter crime) – four years imprisonment on each set of offending concurrent with each other but cumulative on;3

(b) Operation Post Office Box (forgery) – a sentence of two years and three months imprisonment, cumulative on;

(c) Operation Pokie (two charges of burglary and two charges of money laundering) – a sentence of one year imprisonment cumulative on;4

(d) Operation Valour (burglary) – six years imprisonment concurrent with;5

(e) Operation IRD (three charges of dishonestly using a document for pecuniary advantage and 22 of accessing a computer system for dishonest purposes) – two years imprisonment concurrent with;6

2 _{Van Wakeren v R [2011] NZCA 503.}

3 _{R v Van Wakeren DC Auckland CRI-2006-114-9486, 22 October 2009 at [51] – [52].}

4 _{At [54].}

5 _{At [58].}

6 At [53].

(f) Operation Prince (Part 2) (three counts of accessing a computer system for dishonest purposes and six counts of using an altered document with intent to deceive) – four years and eight months imprisonment.7

[8] The offending referred to in paragraph (d), the burglary investigated as part of “Operation Valour”, involved the well-publicised burglary of the National Army Museum at Waiouru and the theft of the valour war medals displayed there.

[9] In the District Court, Judge Hubble purported to impose a minimum period of seven years imprisonment expressed to be with respect to the overall effective sentence of 13 years three months imprisonment. It was accepted by the Crown on appeal that such an approach was not authorised by law because s 86 of the Sentencing Act required that a minimum period of imprisonment had to be imposed with respect to a particular sentence.8 The Court of Appeal quashed the minimum period of imprisonment on that basis.

[10] The Court then said:

[74] The appropriate approach for us is to consider, first, whether this is a proper case for an MPI, challenged by the appellant, and secondly, if so, what that period should be. Further, a question arose in this Court as to whether we could impose cumulative MPIs on the prison sentences that were cumulative, should we decide an MPI was appropriate. As a result we provided counsel with the opportunity to consider these issues and file further submissions, which they have done.

[75] We are satisfied that this was a case which called for the imposition of the maximum MPI of two thirds of the relevant sentence on the burglary of the Museum and the Operation Kea and Operation Prince (Part 1) sentences. Both sets of offending were extremely serious sophisticated property offending involving very large sums of money or very valuable property. Deterrence and denunciation were vital aspects to this sentencing.

[76] The other relevant statutory aspect is the protection of the public. As we have noted, Mr Van Wakeren has over 200 convictions, primarily property convictions. He has been imprisoned many times. During the period of this offending he was regularly able to come up with new schemes to defraud members of the public and commercial enterprises. There were many innocent victims of his various scams. The protection of the public in this case, therefore, must be afforded very real significance.

7 R v Kapa DC Auckland CRI-2008-004-5302, 4 June 2010 at [97].

8 Sentencing Act 2002, s 86(1).

[77] As to what sentences the MPIs can attach to, Judge Gittos specifically did not impose an MPI on the two year and three months sentence on Operation Post Office Box. There was no challenge by the Crown to that refusal.

[78] Of the other sentences only the Operation Kea and Operation Prince sentences and the Operation Valour sentence were sentences of more than 24 months in respect of which minimum periods of imprisonment could be imposed.

[79] We are satisfied that MPIs of two thirds of the five year sentence with respect to the burglary of the Museum and the four year sentence with respect to Operation Kea and Prince (Part 1) should be imposed.

[11] The Court then held that the effect of s 84(4) of the Sentencing Act was that any imposition of minimum periods of imprisonment would be cumulative. Accordingly, the non-parole period of three years and four months on the Operation Valour charge and of two years and eight months on the Operation Kea and Operation Prince (Part 1) charges would be added together to reach a total non- parole period of six years imprisonment.

[12] Mr van Wakeren argues that the imposition of the minimum period of imprisonment under s 86 of the Sentencing Act was unlawful for a number of reasons which I shall deal with in turn.

[13] First, he says that on appeal the Court of Appeal had no jurisdiction to impose a minimum period of imprisonment on some 30 separate sentences. Referring to the terms of s 385(3)(b) of the Crimes Act 1961, he argues that the jurisdiction of the Court of Appeal was limited to replacing the sentence in the District Court, if it chose to quash that sentence and replace it with another, with only one sentence. This argument fundamentally misunderstands the nature of the appeal, which was in fact against all of the sentences imposed. It amounted, so far as the challenged sentences are concerned, to numerous separate appeals being heard at the same time. There is no merit in that point.

[14] Second, Mr van Wakeren is critical of the Court of Appeal for having failed to identify a lead sentence and confine the imposition of a minimum period of imprisonment to that one sentence. He says it was necessary for the Court to do this by reference to s 85(4) of the Sentencing Act.

[15] Section 85 reads as follows:

85 Court to consider totality of offending

(1) Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3) If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

(4) If only concurrent sentences are to be imposed,—

(a) the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b) each of the lesser offences must receive the penalty appropriate to that offence.

[16] Subsection (4) of s 85 needs to be read in the context of the section as a whole. The section is intended to ensure that the sentences are imposed in a manner which appropriately reflects the seriousness of each offence, but recognises that where a number of sentences are imposed for related offending, the total effective sentence must not be disproportionately long. Looked at in that way, subsection (4) does not require the Court in every case where more than one sentence is being imposed to identify one as being more serious than the others.

[17] The present case is one in which it was open to the Court to conclude that a series of offences of the same kind should be treated equally. But the Court paid attention to s 85(4), to the extent that it was bound to do so, in the overall mix of sentences which were imposed for the various categories of offending. In the present case, although Mr van Wakeren was being sentenced at the same time, the offending was not all related. The District Court and the Court of Appeal did regard some of the offending as more serious than others and dealt with them accordingly.

[18] The next point that Mr van Wakeren raised was that the Court of Appeal had no jurisdiction under s 385 to replace one minimum period of imprisonment which had been imposed by the District Court with two separate minimum periods. There is no merit in this point either: the Court of Appeal quashed the sentences imposed in the District Court because the District Court Judge had imposed a minimum period of imprisonment in relation to the overall effective sentence, rather than separate minimum periods with regards to each offence. Having quashed the District Court’s orders, the Court of Appeal became the sentencing Court. It was open to the Court to impose such a mix of sentences, including for minimum periods, as it considered to be lawfully within its jurisdiction.

[19] The fourth point made by Mr van Wakeren was that Judge Hubble had failed to express a view on the four purposes for which a minimum period of imprisonment might be imposed set out in s 86(2) of the Sentencing Act. That section reads:

86 Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment

...

(2) The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:—

(a) holding the offender accountable for the harm done to the victim and the community by the offending:

(b) denouncing the conduct in which the offender was involved: (c) deterring the offender or other persons from committing the

same or a similar offence:

(d) protecting the community from the offender.

[20] The applicant says the Court of Appeal failed to address this argument. This point is also misconceived. The Court of Appeal quashed the District Court sentences on other grounds and, as I have said, it became the sentencing Court. On reviewing the matter afresh, the Court of Appeal concluded that minimum periods of imprisonment were appropriate for some of the offending.

[21] As paragraphs [74] – [78] of the judgment demonstrate, the Court of Appeal provided an opportunity to counsel for both the Crown and the applicant with an opportunity to consider the matter and make submissions. The Court then set out the grounds for its view in paragraphs [75] and [76]. That disposes of Mr van Wakeren’s fourth point.

[22] The next ground alleged that a minimum period of imprisonment of two years eight months was imposed by the Court on the convictions in the Operation IRD category when the sentences actually imposed in the District Court, and then re- imposed in the Court of Appeal, were for periods of only two years. This ground is also misconceived in that, as paragraphs [8](e) and [71] of the Court of Appeal’s judgment, read in conjunction, make clear, the Court of Appeal upheld the two-year sentences imposed by the District Court but imposed the minimum periods of imprisonment only on the charges arising under Operation Kea, Operation Prince

(Part 1) and Operation Valour. The Court said9:

We are satisfied that MPIs of two thirds of the five year sentence with respect to the burglary of the Museum and the four year sentence with respect to Operation Kea and Prince (Part 1) should be imposed.

[23] No MPI was imposed in respect of the two-year terms of imprisonment for the Operation IRD offending.

[24] However, an error appears on the face of the warrant for imprisonment signed by Stevens J on 3 October 2011. As I understand it, charges 29 – 70 of the warrant related to Operation IRD. On pages 5 – 7 of the Court of Appeal’s warrant, it is recorded that “the sentence of imprisonment for four years stands” in respect of each of those charges. This is in error, as the reference should have been to the sentence of imprisonment “for two years”. The error no doubt arose because the same administrative error was made in respect of the District Court warrant, and was not drawn to the attention of the Court of Appeal.

[25] No miscarriage of justice arises because of the sentences imposed concurrently on other charges and correctly recorded in the warrant and because the minimum period of imprisonment was not imposed in respect of sentences not correctly recorded.

[26] Importantly, the warrant is not invalidated by the error if for no other reason than that the command set out in the final paragraph of the warrant is justified by the sentences correctly recorded. The manager of Mt Eden Corrections Facility was required by the warrant to detain Mr van Wakeren in accordance with the command of the Court of Appeal and his continued detention is therefore lawful.

[27] On that basis, the defendant has established that Mr van Wakeren’s detention

is lawful and I dismiss the application accordingly.

[28] Following the release of the Court of Appeal’s judgment, Mr van Wakeren applied to the Supreme Court for leave to appeal. That Court declined to grant leave in a judgment dated 5 December 2011.10 On 13 December 2011, Mr van Wakeren wrote to the Chief Justice requesting a review of the Supreme Court’s decision. The Registrar of the Court has informed Mr van Wakeren that his request will be treated as an application to the Supreme Court to recall its judgment of 5 December 2011.

The application so constituted has not yet been dealt with by the Supreme Court.

[29] To the extent that it may be desirable, if not strictly necessary, to deal with the errors which have been identified in the warrant for imprisonment, the matter is one which might be dealt with by the Supreme Court if it thinks fit.

[30] To that end, I direct the Registrar of this Court to provide the Registrar of the

Supreme Court with a copy of this judgment.

.........................................

Toogood J