Budayev v New Zealand Parole Board
[2019] NZHC 1778
•26 July 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-409-000054
[2019] NZHC 1778
BETWEEN ETHAN OLEGOVITCH BUDAYEV
Appellant
AND
NEW ZEALAND PAROLE BOARD
Respondent
Hearing: 25 July 2019 Appearances:
N Wham for Appellant
M N Zarifeh for Respondent
Judgment:
26 July 2019
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 26 July 2019 at 3.00 pm Registrar/Deputy Registrar
Date:
[1] Ethan Budayev was recalled to prison on an interim recall order two weeks before the end of his three-year sentence. There was not enough time left on his sentence in which to undertake the statutory procedure for deciding whether the interim recall order should be made final.
[2] The appellant’s notice of appeal claims that the Parole Board erred in law because an interim order was made when there was no possibility of a recall hearing being held, as required by s 63 Parole Act 2002 (the Act). In those circumstances, the appellant says an interim order should not have been made and seeks a declaration that the Parole Board acted unlawfully.
BUDAYEV v NEW ZEALAND PAROLE BOARD [2019] NZHC 1778 [26 July 2019]
[3] The decision appealed against is the interim recall order, not the final order because, of course, none was ever made. That raises a preliminary question over whether there is jurisdiction to hear the appeal, as an express right of appeal only applies to a final order.
Background
[4] On 21 June 2016, Mr Budayev, then aged 20, was sentenced to three years’ imprisonment on various charges, including assault with a blunt instrument, which arose out of his connection with the Tribesmen MC gang. His statutory release date was 13 March 2019.
[5] Mr Budayev was released on parole on 7 January 2019. On 14 January 2019, the Department of Corrections applied to recall him as he had breached his parole conditions by associating with members of the Tribesmen MC and had posted photos to Facebook of him with members of the gang. The Board made an interim recall order. A final order was not made as the Board considered he would benefit from a short period on parole, rather than being released at his statutory release date just on release conditions. Mr Budayev was released on parole again on 8 February 2019. The Board added a condition of GPS monitoring and amended the non-association with Tribesmen members to include known Tribesmen gang premises and addresses of known members.
[6] On 26 February 2019, the Department of Corrections again applied to recall Mr Budayev. Once again, Mr Budayev had associated with members of the Tribesmen, by going to a known gang associate’s house and posting photos on Facebook with him. The Parole Board made an interim recall order, citing the risk to community safety, and Mr Budayev was taken into custody on 27 February 2019.
[7] The Act provides that the Board must determine whether a final recall order ought to be made at least 14 days after, but not more than one month after, the date on which the offender is taken into custody.1 Mr Budayev’s release date was exactly 14 days after he was taken into custody.
1 Section 65(1)(b).
[8] On 4 March 2019, the Board issued a “Notice to offender of recall application” which stated:
(a)the date and time of the hearing was 13 March 2019 at 8.30am; and
(b)Mr Budayev must notify the Board by 1 March 2019 if he wished to make written submissions or be represented by counsel.
[9] That same day, an administrator from the Board emailed Mr Budayev’s counsel, Mr Starling, to inform him that there was not going to be a hearing.
Mr Budayev was served with the notice and recall application on 5 March.
[11] He was released on 13 March 2019, being his statutory release date. No recall hearing was held and the recall application was not otherwise determined.
Review decision
[12] Mr Budayev sought a review of the interim recall decision under s 67 of the Act. His lawyer, Mr Starling, argued that the decision to recall Mr Budayev amounted to an error of law because it was not possible for the Board to comply with its procedural requirements regarding a hearing of the recall application.
[13] Ms Coleman, the panel convener reviewing the decision, held that there had been no error. While the notice given to Mr Budayev informing him of a hearing that would not take place was perhaps unhelpful given it contradicted the advice given to counsel, Ms Coleman did not accept that an inability to hold a final recall hearing meant that no interim order should be made. She pointed to the mandatory language in s 62(1):
(1)On receiving a recall application, the chairperson or any panel convener must make an interim recall order if he or she is satisfied on reasonable grounds that -
(a)the offender poses an undue risk to the safety of the community or to any person or class of persons…
(emphasis added)
[14] Ms Coleman said there was “simply no room to read in any qualification to that section of the kind contended for by Mr Starling”. She said the paramountcy of community safety to the Board’s decision provided for in s 7(1) supported that interpretation. She said the Board’s hands were tied by the provisions of the Parole Act and, in any event, there was no prejudice to Mr Budayev from the inability to hold a hearing given he would have spent at least the same amount of time in prison even if no final recall order was made following a hearing.
Jurisdiction to hear the appeal
The respondent’s submissions
[15] Mr Zarifeh, for the Parole Board, submits that there is no jurisdiction for the High Court to hear the appeal. Section 68 of the Act provides that an offender who is subject to a final recall order may appeal to the High Court against the decision on the grounds that the order ought not to have been made. However, there is no provision giving an offender the same ability to appeal an interim recall order. Instead the High Court has said it is "distinctly arguable” that no such ability exists, although the point was not decided in that case.2
[16] The wording of the statute is plain and could have specified such an appeal right if that was intended. An interim recall order is interim only. The prescribed time limits in which a final recall hearing must take place after an interim order is made emphasise its interim nature. The appropriate channel to challenge an interim recall order is through the review provided for in s 67 or an application under the Habeas Corpus Act 2001 or for judicial review.
The appellant’s submissions
[17] Ms Wham seeks to avoid this statutory barrier by submitting that, in this case, the interim recall order should be deemed a final order as there was no determination otherwise, and indeed no final order could have been made within the time limits in the Parole Act. The rationale for allowing an appeal of an interim order is that the interim recall order is, itself, a “stain” on the offender’s record which he should have
2 Kingi v New Zealand Parole Board [2012] NZHC 3490 at [19].
the opportunity to expunge. Furthermore, without a right of appeal in cases such as this, the Parole Board could recall without proper grounds knowing the Board’s action could not be appealed.
[18] She also suggests that if there is no jurisdiction, the appeal should be converted to an application for judicial review.
Discussion
[19] I am satisfied there is no jurisdiction for this Court to hear an appeal against an interim recall order. Section 68 specifically allows appeals to the High Court against a “postponement order, an order under section 107 or a final recall order”. Immediately before that section, s 67 provides an ability for offenders to apply for a review of “any decision of the Board under this Act”, with specified exceptions. Had Parliament intended there to be a right of appeal to the High Court in respect of interim recall orders it could have worded the appeal rights under s 68 similarly to s 67.
[20] In any event, the whole point of interim orders is that they are interim. This errs on the side of protecting public safety in the short term but providing a prompt opportunity for the offender to be heard on whether the interim order should be made final. The statutory scheme clearly prioritises protecting against risk to the public in the short term balanced by an early opportunity to be heard on whether it should continue.
[21] This particular case is of course unusual because there is not, nor could there be, any final recall decision. However, there is no prejudice to Mr Budayev. He was only kept in custody for the shortest time possible in the circumstances, and he had alternate channels to challenge the interim decision both at the time through an application for review or habeas corpus, and subsequently through judicial review proceedings. Any concern that the Parole Board could act without justification or in bad faith in making an interim order could be checked through those means. It does not warrant reading in a right of appeal which is not available on the plain language of the Act.
Merits
[22] For completeness, I note I would not have allowed the appeal even if I considered jurisdiction existed.
[23] Ms Wham submits the Board failed to comply with the procedural requirements set out in s 63, and was aware of its inability to comply with them when it made the interim recall order. She submits that making an interim order at a time when Mr Budayev would not have the opportunity to challenge the recall order breached his right to natural justice. She submits that had Mr Budayev had the opportunity to be heard, a final recall order would not have been made.
[24] However, I consider Ms Wham is suggesting the Board should have had regard to an irrelevant consideration when making an interim recall order. Section 62 provides that the Board must make an interim recall order if the Chairperson or a panel convenor is satisfied on reasonable grounds that the offender poses an undue risk to the safety of the community, as happened here. There is no scope to read in a requirement to assess that decision against the length of time remaining of the offender’s sentence.
[25] There is also no doubt that Mr Budayev was eligible for recall, as he satisfies all the requirements in s 60(2):
A probation officer may make a recall application to the Board in respect of any offender who –
(a)is subject to a determinate sentence; and
(b)has not yet reached his or her statutory release date; and
(c)is on parole or compassionate release.
[26] There is no mention in that section that the length of time remaining before the statutory release date is relevant to whether there is the ability to make an interim recall order.
[27] In any event, Mr Budayev was not prejudiced by the hearing not going ahead. He was released 14 days after he was brought back into custody. This is the minimum
amount of time he would have spent in custody if the hearing had occurred, and he had succeeded in persuading the Board not to make a final recall order.
Conclusion
[28] The appeal is dismissed on the grounds the Court has no jurisdiction to hear this appeal.
Solicitors:
M Starling, Barrister, Christchurch Raymond Donnelly & Co., Christchurch
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