Brandon v Chief Executive of the Department of Corrections

[2015] NZHC 1586

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-000506 [2015] NZHC 1586

BETWEEN

BRETTON DE BATH BRANDON

Applicant

AND

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing:	7 July 2015
Counsel:	D A Ewen for Applicant A M Powell and M J McKillop for Respondent
Judgment:	8 July 2015

INTERIM JUDGMENT OF COLLINS J

[1]      On Thursday 2 July 2015, Mr Brandon filed an application for a writ of habeas corpus.  I heard his application on Tuesday 7 July 2015.

[2]      Mr Brandon was arrested on two “holding” charges on 4 April 2012.  He has been in custody since that date.

[3]      After  4  April  2012,  further  charges  were  laid  as  part  of  an  ongoing investigation  into  allegations  that  Mr  Brandon  was  engaged  in  a  conspiracy  to supply, and had supplied, methamphetamine.  In addition, charges were withdrawn as the police analysis of a large volume of evidence evolved.

[4]      Ultimately, on 12 August 2014 Mr Brandon pleaded guilty to seven charges in an amended indictment.   He was sentenced on that date to three years and two months’ imprisonment  in  relation  to  the  seven  charges.    Those  sentences  were

concurrent.

BRANDON v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2015] NZHC 1586 [8 July 2015]

[5]      Mr Ewen, counsel for Mr Brandon, has calculated that if the pre-sentence detention served by Mr Brandon is calculated from 4 April 2012, then his sentence came to an end on 4 June 2015.

[6]      Initially,   the   Department   for   Corrections   (the   Department)   calculated Mr Brandon’s sentence would not end until 8 August 2016.   The Department now appreciates there are errors in its information.  Taking those errors into account, the Department now says Mr Brandon’s sentence ends on 19 December 2015.

[7]      The key issue is whether the charges Mr Brandon pleaded guilty to and was sentenced in respect of were part of the proceedings that were initiated when the “holding” charges of 4 April 2012 were laid.

[8]      For reasons which I will explain in my substantive judgment, I am satisfied the charges which Mr Brandon was sentenced for are part of the proceedings commenced on 4 April 2012.  It therefore follows that the Department’s information concerning the correct release date for Mr Brandon is wrong.

[9]      Rather than issue a writ of habeas corpus at this juncture, I will provide the Department with an opportunity to correct its records and ensure Mr Brandon is released from custody immediately.

[10]     I issue a declaration that the pre-sentence detention commenced on 4 April

2012  in  relation  to  all seven  charges  which  Mr Brandon  was  sentenced  for on

12 August 2014.

[11]     The effect of this declaration is that Mr Brandon’s sentence came to an end

on 4 June 2015.

[12]     If the Department does not correct its records and release Mr Brandon by

4.00 pm on 8 July 2015, I shall issue a writ of habeas corpus.

D B Collins J

Solicitors:

Ord Legal, Wellington for Applicant

Crown Law Office, Wellington for Respondent