Romanov v Attorney-General
[2015] NZHC 1932
•1 October 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-002070 [2015] NZHC 1932
BETWEEN RICARDO ROMANOV
Plaintiff
AND
ATTORNEY-GENERAL OF NEW ZEALAND ON BEHALF OF THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Defendant
Hearing: 15 July 2015 Appearances:
Plaintiff in person
M Hodge and S Musgrave for DefendantJudgment:
1 October 2015
JUDGMENT OF GILBERT J
This judgment is delivered by me on 1 October 2015 at 3.30 pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
ROMANOV v ATTORNEY-GENERAL OF NEW ZEALAND ON BEHALF OF THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2015] NZHC 1932 [1 October 2015]
Introduction
[1] This is an application to strike out Mr Romanov’s claim against the Department of Corrections (Corrections) for damages for allegedly wrongfully detaining him in custody for a period of 1,490 days.1 Mr Romanov seeks general damages of $1.65 million and exemplary damages of $100,000.
[2] Mr Romanov advances three causes of action. He describes the first as “deliberate and malicious application of non-applicable legislation”. The second is a claim in tort for false imprisonment and the third alleges a breach of s 22 of the New Zealand Bill of Rights Act 1990 which provides that everybody has the right not to be arbitrarily arrested or detained.
[3] Mr Romanov argues that his parole eligibility and final release dates should have been calculated under s 90 of the Criminal Justice Act 1985 without reference to s 75 of the Parole Act 2002.2 In particular, he says that he was serving a pre-cd sentence of 13 years and nine months’ imprisonment for aggravated robbery and a cumulative sentence of three years’ imprisonment for theft.3 He contends that these sentences do not form a notional single sentence in terms of s 75 of the Parole Act because that section only applies where an offender is sentenced after the commencement date to a term of imprisonment and this is directed to be served cumulatively on a pre-cd sentence. On that basis, he claims that his parole eligibility date was in November 2008, by which time he had served two-thirds of his sentence of 13 years and nine months’ imprisonment and one-third of his sentence of three years’ imprisonment.4 He calculates that his final release date was also in November
2008, although it is unclear how he arrives at this.5
1 This is said to be calculated at the date of Mr Romanov’s claim, 10 July 2014, and equates to a period of four years and one month.
2 See statement of claim [3], [4], [8], [14], [19] and [27].
3 A pre-cd sentence is a pre-commencement date sentence, imposed prior to the commencement date of the Parole Act 2002.
4 The correct date is 10 November 2008, taking into account time spent on remand and while at large following escape from custody.
5 At [27].
[4] Although these are the principal contentions underpinning all of Mr Romanov’s claims, he complains about three separate events that he says are causative of his allegedly unlawful ongoing detention.
[5] The first is a statement made by Corrections at a hearing before the Parole Board (the Board) on 28 October 2008 that Mr Romanov was serving a sentence of 19 years and three months’ imprisonment when in fact his total sentence was 16 years and nine months’ imprisonment.6 Mr Romanov claims that he would have been granted parole had this statement not been made.7 This is the foundation
of his first cause of action.
[6] The second was the application made by Corrections on 23 September 2009 pursuant to s 107 of the Parole Act for an order that Mr Romanov not be released before his applicable release date. This order was made on 15 March 2010. Mr Romanov claims that there was no jurisdiction to make the order because his final release date had passed prior to the application being made. As a result of this order, he claims that he was wrongfully detained from 15 March 2010 until
7 March 2012, the date on which he was granted parole.8
[7] The third was an application by Corrections for a final recall order. Mr Romanov claims that this application was also made out of time and that there was accordingly no jurisdiction for the final recall order that was made by the Board on 14 August 2013.9 Mr Romanov claims that as a result of this order he was unable to apply for bail on fresh charges that were laid against him in May 2013.
[8] Corrections apply to strike out the claim on the grounds that it discloses no reasonably arguable cause of action and is an abuse of process.
[9] Mr Romanov submits that the application should be dismissed because
Corrections did not file a statement of defence within the period stipulated by the
High Court Rules. He argues that the Court has no authority to strike out the claim
6 At [5] and [21].
7 At [12], [21] and [24].
8 At [15].
9 At [17] and [28].
given that proper process has not been observed. He contends that he is entitled to judgment by default against Corrections.
The issues
[10] The issues are:
(a) Does the Court have jurisdiction to deal with the application given that no statement of defence was filed within the time stipulated in the High Court Rules?
(b) Are the claims clearly untenable?
(c) Do the claims amount to an abuse of process?
[11] Before addressing these issues, it is necessary to set out the relevant chronology, which is not in dispute.
Chronology
Original sentence
[12] On 24 September 1999, Potter J sentenced Mr Romanov to a total of 16 years
and nine months’ imprisonment.10 This sentence comprised:
(a) thirteen years and nine months’ imprisonment on the lead charge of aggravated robbery of a $2 million James Tissot painting taken at gunpoint from the Auckland Art Gallery on 9 August 1998;
(b)twelve years’ imprisonment (concurrent with (a)) for aggravated robbery of the Bombay Service Centre on 27 January 1998;
(c) twelve years’ imprisonment (concurrent with (a)) for the aggravated
robbery of the ASB Bank at Waiuku on 13 February 1998;
(d)three years’ imprisonment (cumulative with (a), (b) and (c)) for the theft of a motorcycle on 16 October 1996;
(e) three years’ imprisonment (concurrent with (d)) for the theft of a
motorcycle in May 1998;
(f) two years’ imprisonment (concurrent with (d)) for possession of a
Winchester firearm;
(g)two years’ imprisonment (concurrent with (d)) for possession of a .22 rifle; and
(h) two years’ imprisonment (concurrent with (d)) for possession of a
shotgun.
Further sentence
[13] On 1 February 2006, Mr Romanov escaped from Rangipo Prison by walking away from a working party. He then committed two further offences:
(a) unlawfully taking a motor vehicle on 20 February 2006; and
(b)burglary at a house at Onewhero on 23 February 2006 in the course of which he took a shotgun, four shotgun cartridges, clothing, a radio, a watch and money.
[14] Mr Romanov was apprehended on 27 February 2006. On 10 May 2006, he was sentenced in the Manukau District Court by Judge Johns to two years, six months’ imprisonment for escaping lawful custody and 18 months’ imprisonment on each of the burglary and unlawful taking charges.11 The Judge directed that these sentences be served concurrently with each other but cumulatively on Mr Romanov’s existing sentence which the Judge understood was 13 years and nine months’
imprisonment. The Judge overlooked that Mr Romanov was subject to a further cumulative sentence of three years’ imprisonment.
[15] Mr Romanov appealed against these sentences. Baragwanath J allowed the
appeal and reduced the effective end sentence to two years’ imprisonment.12
Consistent with Judge Johns’ decision, he directed that the sentences be served concurrently with each other but cumulatively on the original sentence imposed by Potter J. Baragwanath J also understood that this was a sentence of 13 years and nine months’ imprisonment. The additional existing cumulative sentence of three years’ imprisonment was again overlooked.
2008 parole hearing
[16] Mr Romanov attended a parole hearing on 28 October 2008. He challenged the calculation of the sentence dates contending that he had completed his sentence for aggravated robbery by serving two-thirds of the 13 years and nine months’ sentence. Mr Romanov claimed he was then subject only to the three year sentence for theft and that his parole eligibility date was 10 October 2008 and his end sentence date was 10 November 2009.13 The Board declined to consider this issue stating that the calculation of these dates was the responsibility of Corrections.
[17] The Board was not satisfied that if Mr Romanov was released he would not pose an undue risk to the safety of the community. In reaching this conclusion, the Board took into account the psychologist’s assessment that there was a very high risk that Mr Romanov would re-offend in a serious manner if released. The Board considered that this conclusion was supported by Mr Romanov’s recent convictions for escaping from lawful custody, burglary, unlawfully taking a motor vehicle and unlawfully carrying a firearm. The Board also considered that Mr Romanov’s release into the community needed to be planned and very carefully managed given the length of his incarceration. The Board noted that there was no adequate release
plan in place and no approved address.
12 Romanov v New Zealand Police HC Auckland CRI-2007-404-277, 22 November 2007.
13 The reference to October 2008 appears to be an error. The correct date is 10 November 2008.
The claim that the end sentence date was 10 November 2009 differs from Mr Romanov’s present
statement of claim where he alleges that his final release date was 10 November 2008.
Section 107 order
[18] On 23 September 2009, Corrections applied under s 107 of the Parole Act for an order that Mr Romanov not be released before the applicable release date. This order was made on 15 March 2010.
Parole granted
[19] Mr Romanov was granted parole on 7 March 2012.
Subsequent arrest
[20] Mr Romanov was arrested on a charge of burglary on 28 May 2013. He was detained in custody pending his trial in the Auckland District Court.
Final recall order
[21] On 29 May 2013, Corrections applied for a final recall order. This order was made on 14 August 2013.
[22] In December 2013, Mr Romanov applied pursuant to s 67 of the Parole Act
for a review of the Board’s final recall order. This application was declined.
Application for writ of habeas corpus
[23] Mr Romanov applied for a writ of habeas corpus claiming that his detention in custody was unlawful. This application was dismissed by Katz J in a judgment delivered on 16 January 2014.14 The Judge did not consider Mr Romanov’s submission that the Board had no jurisdiction to make the recall order. She did not need to do so because Mr Romanov was being lawfully detained on remand pending trial on the burglary charge in any event.
Appeal against recall order
[24] Corrections and Police applied to recall the decision of Baragwanath J to correct the error that resulted from him overlooking the cumulative sentence of
three years’ imprisonment imposed by Potter J. At the same time, Mr Romanov applied for leave to appeal out of time against the final recall order made by the Board. Venning J dismissed both of these applications in a judgment delivered on
10 October 2014.15
[25] Venning J held that, although the error resulted in Mr Romanov effectively receiving no additional penalty for escaping from custody, burglary and unlawfully taking a motor vehicle, it should not be corrected because of the length of time that had passed, the fact that Corrections had been aware of the mistake since April 2009, and having regard to the principle of finality of litigation.
[26] Significantly, for present purposes, Venning J also declined Mr Romanov’s appeal against the Board’s decision to make a final recall order. In dealing with this application, the Judge was required to determine the correct statutory release date applicable in Mr Romanov’s circumstances because an application for a final recall order cannot be made after the statutory release date.
[27] The statutory release date is defined in the Parole Act as the date on which an offender must be released from detention and ceases to be liable to be recalled to continue serving any sentence in a prison. The Judge found that this was three months before the sentence expiry date. Allowing for the period Mr Romanov was at large following his escape from custody and time spent on remand, the Judge found that the sentence expiry date was 10 June 2015. The Judge therefore concluded that the application for the final recall order, which was filed on
29 May 2013, was in time.
Is there jurisdiction to strike out the claim?
[28] Rule 15.1 of the High Court Rules provides that the Court can strike out all or part of a claim in certain circumstances, including if it discloses no reasonably arguable cause of action or is an abuse of process of the Court. The jurisdiction is exercised sparingly and only in clear cases. A claim should not be struck out unless it is quite clear that it cannot succeed.
[29] In Attorney-General v Prince, Richardson P, giving the judgment of the majority, described the proper approach when considering a strike out application as follows:16
A striking-out application proceeds on the assumption that the facts pleaded in the statement of claim are true. That is so even though they are not or may not be admitted. It is well settled that before the Court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed (R Lucas and Son (Nelson Mail) Ltd v O’Brien [1978] 2 NZLR 289, 294-295; Takaro Properties Ltd (in receivership) v Rowling [1978] 2 NZLR 314, 316-317); the jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material (Gartside v Sheffield, Young & Ellis [1983] NZLR 37, 45; Electricity Corp Ltd v Geortherm Energy Ltd [1992]
2 NZLR 641) but the fact that applications to strike out raise difficult questions of law, and require extensive argument, does not exclude jurisdiction (Gartside v Sheffield, Young & Ellis).
[30] This approach was endorsed by the Supreme Court in Couch v Attorney- General.17
[31] Mr Romanov argues that the application must be dismissed because it was filed outside the time prescribed under the High Court Rules for filing a statement of defence. There is no merit in this point. If the claim is untenable and cannot possibly succeed, then it ought to be struck out. Similarly, the Court has a duty to strike out any part of the claim found to be an abuse of the Court’s process. Whether or not a statement of defence has been filed is irrelevant to these enquiries. Indeed, where a claim discloses no reasonable cause of action, is untenable or is an abuse of process, the proper course is to apply to have it struck out before other steps are taken.
Is the claim clearly untenable?
Hearing before the Parole Board on 28 October 2008
[32] Mr Romanov’s first cause of action is based on his allegation that Corrections
told the Board at the hearing on 28 October 2008 that he was serving a sentence of
19 years and three months’ imprisonment, not 16 years and nine months’
imprisonment as was the case. This cause of action is clearly untenable. The Board
16 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.
17 Couch v Attorney-General [2008] NZSC 45, [1008] 3 NZLR 725 at [33].
knew that there was a dispute concerning the relevant sentence dates. Mr Romanov’s counsel submitted that Mr Romanov’s parole eligibility date was
10 October 2008 and his end sentence date was 10 November 2009.18 The Board
declined to rule on the issue on the basis that this was the responsibility of the Chief Executive of the Department of Corrections. The issue was irrelevant to the Board’s determination as to whether parole should be granted.
[33] It is clear beyond doubt from reading its decision that the Board declined parole for reasons that had nothing to do with whether Mr Romanov’s sentence was
19 years and three months’ imprisonment or 16 years and nine months’
imprisonment:
The Board is of the view that it is not satisfied that should Mr Romanov be released he would not pose an undue risk to the safety of the community for the following reasons:
1. The conclusion contained in the psychologist report that Mr Romanov was considered to be a very high risk of re-offending in a serious manner on his release;
2. Despite the challenges to that opinion by Mr Romanov and his counsel there was no substantive material before the Board to enable it to form a contrary view;
3. Mr Romanov’s most recent convictions in May 2006 – escaping from lawful custody, burglary, unlawfully taking a motor vehicle and unlawfully carrying a firearm tend to confirm the conclusions reached in the report. The report notes in this regard that the burglary involved the theft of a shotgun and when Mr Romanov was located the shotgun had been cut down to pistol size and there were four shotgun cartridges.
4. Due to the very long period of incarceration following Mr Romanov’s arrest his release into the community should be planned and very carefully managed.
5. No adequate release plan is before the Board. In particular no address has been approved by the Community Probation & Psychological Services.
[34] If Mr Romanov had wished to challenge the Board’s decision, he could have
applied for a review under s 67 of the Parole Act. He did not do so. This cause of action has no prospect of succeeding because, as demonstrated, the issue regarding
18 Taking into account time spent on parole and the time Mr Romanov was at large between the date of his escape on 1 February 2006 and the date of his recapture on 27 February 2006, the parole eligibility date was 10 November 2008, not 10 October 2008, as claimed.
the length of the sentence Mr Romanov was serving was immaterial to the Board’s
decision. This cause of action must accordingly be struck out.
Application for s 107 order
[35] Mr Romanov claims that Corrections was out of time when it applied for the order under s 107 of the Parole Act and accordingly there was no jurisdiction for the Board to make that order. I am satisfied that this argument is also completely untenable for the reasons that follow.
[36] Section 107 relevantly provides:
107 Order that offender not be released
(1) This section applies to an offender who is subject to a determinate pre-cd sentence for a specified offence (as defined in subsection (9)).
(2) The chief executive may apply to the Board at any time before the offender’s final release date for an order that the offender not be released before the applicable release date (as defined in subsection (9)).
…
(9) In this section –
applicable release date means, -
(a) in the case of an offender subject to a pre-cd sentence imposed for a specified offence, the date that is 3 months before the sentence expiry date:
(b) in the case of an offender who is subject to more than 1 pre- cd sentence imposed for a specified offence, the date that is
3 months before the sentence expiry date of the sentence with the latest sentence expiry date.
specified offence means –
(a) murder; or
(b) a sexual crime under Part 7 of the Crimes Act 1961 punishable by 7 or more years’ imprisonment; and includes a crime under section 144A or section 144C of that Act; or
(c) an offence against any of sections 171, 173 to 176, 188,
189(1), 191, 198 to 199, 208 to 210, 234, 235, or 236 of the
Crimes Act 1961.
[37] Aggravated robbery is a specified offence. The other offences of which
Mr Romanov was convicted are not specified offences.
[38] As stated in subs 2 quoted above, an application for a s 107 order must be
made before the “final release date”. This is defined in the Parole Act as follows:
final release date means the final release date of a pre-cd sentence, or the final release date of an offender who is subject to a pre-cd sentence, as determined under Parts 4 and 6 of the Criminal Justice Act 1985 and varied (if applicable) under section 106 of this Act.
[39] The final release date is therefore determined under s 90 of the Criminal
Justice Act, which relevantly provided that an offender shall be released:
90 Final release
(1) Subject to … , an offender shall be released –
…
(b) Where the offender is subject to a sentence of imprisonment for a term of more than 12 months, not being a sentence for a serious violent offence, after the expiry of two-thirds of the sentence:
…
(d) Where the sentence is in respect of a serious violent offence, –
(i) If no minimum period of imprisonment has been imposed under section 80(4) of this Act, after the expiry of two-thirds of the sentence:
[40] There is a dispute about whether s 75 of the Parole Act also applies. This section relevantly reads:
75 Cumulative sentences form notional single sentence
(1) If, after the commencement date, an offender is sentenced to a sentence of imprisonment (a later sentence) that is directed to be served cumulatively on another sentence (an earlier sentence), the later sentence and the earlier sentence form a notional single sentence for the purpose of determining –
…
(c) the release date to apply when determining the offender’s
statutory release date.
(2) If the earlier sentence is part of a series of cumulative sentences, then all the sentences (including any pre-cd sentences) in that
series, along with the later sentence, form a notional single sentence for the purpose described in subsection (1).
[41] Mr Romanov argues that, because the sentence imposed by Baragwanath J effectively made no change to the earlier sentences, s 75 of the Parole Act has no application and he should not be regarded as serving a “notional single sentence”. He claims that his final release date should have been calculated under s 90 of the Criminal Justice Act solely with reference to his sentences for aggravated robbery, the specified offences. If Mr Romanov is correct, his final release date would have been 10 November 2007 and there would have been no jurisdiction to make the s 107 order because the application was not made until 23 September 2009, nearly two years out of time.
[42] This issue was considered by the Court of Appeal in The Superintendent of a Prison v S with reference to s 105 of the Criminal Justice Act, the predecessor of s 107 of the Parole Act.19 Section 105 relevantly provided:
105 Offender may be required to serve full term –
(1) This section applies to every offender who is subject to a sentence of imprisonment for a specified offence other than the offence of murder.
(2) The Secretary may apply to the Parole Board at any time before the offender’s final release date under section 90 of this Act for an order that the offender not be released before the applicable release date.
[43] In that case, S was serving concurrent sentences of nine years’ imprisonment for kidnapping and eight years’ imprisonment for assault with intent to commit sexual violation. For the purposes of s 105, the assault with intent to commit sexual violation was a specified offence but kidnapping was not. The question was whether an application under s 105 was out of time because it was made after the final release date calculated under s 90 of the Act with reference to the specified offence only. Doogue J adopted that approach in the High Court in an earlier case, Hunia v
The Parole Board at Wellington.20
19 The Superintendent of A Prison v S [2001] 3 NZLR 768 (CA).
[44] The Court of Appeal took the “firm view” that Hunia was wrongly decided.21
The Court considered that the wording of s 105 must include offenders who are not only serving sentences for specified offences but who are also serving cumulative or concurrent sentences for non specified offences.22 The Court concluded that because s 90 does not explain how the final release date is to be calculated where the offender is subject to cumulative or concurrent sentences of imprisonment, the calculation must be as provided in s 92:
92 Calculation of parole, final release, and sentence expiry dates –
(1) Where an offender is subject to cumulative or concurrent sentences of imprisonment, or both, the parole, final release and sentence expiry dates of such sentences shall be calculated in accordance with this section.
(2) For the purposes of this Part of this Act, terms of imprisonment under cumulative sentences shall be treated as one term as provided in this section.
…
(4) The date on which an offender who is subject to cumulative sentences of imprisonment is to be finally released pursuant to section 90 of this Act shall be determined by –
(a) Calculating, for each sentence within each link in the cumulative chain, the period beginning with the commencement of the sentence and ending with the close of the final release date specified in section 90 of this Act; and
(b) Taking the longest period within each link; and
(c) Adding that period to the longest periods from the other links in the cumulative chain.
[45] Thomas J, who delivered the judgment of the Court, stated:
[25] Consequently, a reference to the final release date under s 90 necessarily incorporates the calculation under s 92 where the offender has been sentenced to cumulative or concurrent sentences. Section 92 directs how the final release date is to be arrived at in such circumstances. …
...
[27] This interpretation accords with the purpose of s 90. It is to establish a date in relation to a full-time custodial sentence when an offender can no longer be detained in a penal institution. (See the definition of final release
21 The Superintendent of A Prison v S, above n 19, at [18].
date in s 2(1)). Of necessity, that date must be one date. It would frustrate this purpose, and defy common-sense, if there were to be one final date for one offence by which date the offender is to be released, and another final date for another cumulative or concurrent sentence by which date the offender is also to be released.
[46] In 2002, s 166 of the Sentencing Act 2002 repealed Part VI of the Criminal Justice Act which contained ss 89 to 107. However, s 105(1) of the Parole Act provides that the determination of the final release date for an offender subject to a pre-cd sentence shall be determined in accordance with s 91 of the Criminal Justice Act. Section 91 provides that the final release date is to be determined in accordance with ss 90 and 92 of the Act. Section 107 of the Parole Act replaced s 105 of the Criminal Justice Act but omits reference to s 90 for the determination of the final release date for a pre-cd sentence. This demonstrates that Parliament must have intended that the interpretation adopted by the Court of Appeal in The Superintendent of a Prison v S should continue to apply.
[47] This interpretation was further confirmed by the Court of Appeal in Wilson v The Chief Executive of the Department of Corrections which was decided after the Parole Act came into force.23 In that case, the prisoner was serving sentences in three categories. Concurrent sentences were imposed for the first category of offences, some of which were serious violent offences as defined for the purposes of the Criminal Justice Act. Concurrent sentences were also imposed for the second category of offences, some of which were also serious violent offences. The third category related to a single sentence for a non-serious violent offence. While the
sentences within each of these categories were to be served concurrently, the sentences for the three categories were cumulative. The Court determined that the final release date was to be calculated under s 92(4) of the Criminal Justice Act by adding together the longest period in each category.
[48] Applying this reasoning, Mr Romanov’s final release date must be calculated
under s 92(4) of the Act as follows:
(a) two-thirds of 13 years and nine months’ imprisonment; plus
(b) two-thirds of three years’ imprisonment.
23 Wilson v The Chief Executive of the Department of Corrections [2009] NZCA 2.
[49] Taking into account the time Mr Romanov spent on remand and while at large following his escape from custody, the final release date is 10 November 2009. The application for an order pursuant to s 107 was made on 23 September 2009 and was therefore made in time.24 The fact that the order was not made until
15 March 2010 is irrelevant.25
[50] The issue as to whether s 75 of the Parole Act applies to Mr Romanov makes no difference to the calculation of the relevant dates because s 92(2) of the Criminal Justice Act requires that cumulative pre-cd sentences must be treated as “one term” in any event.
Application for final recall order
[51] Mr Romanov also claims that there was no jurisdiction to make the final recall order because this was not applied for until after his statutory release date as defined in s 60(2) of the Parole Act:
60 Making recall application
…
(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.
[52] Mr Romanov was on parole and was subject to a determinate sentence at the time the recall order was applied for on 29 May 2013. The only issue is therefore whether he had reached his statutory release date by then.
[53] Statutory release date is defined in the Parole Act in the following terms:
statutory release date means the date on which an offender who is subject to 1 or more sentences of imprisonment –
(a) must be released from detention (see section 17); and
(b) ceases to be liable to be recalled to continue serving any sentence in a prison (see sections 59 to 66)
24 Mr Romanov alleges in [13] of his statement of claim that Corrections applied for the s 107
order “toward the end of 2010” but that is plainly incorrect.
25 Mr Romanov alleges in [15] of his statement of claim that the s 107 order was made out of time but the critical date is the date of the application, not the date of the order.
[54] Section 17 relevantly provides:
17 Release at statutory release date
(1) The statutory release date of an offender is the release date of the sentence to which the offender is subject (including any notional single sentences) that has the latest release date.
(2) An offender who is detained in a prison on his or her statutory release date must be released from detention on that date.
[55] Section 87 defines the release date for pre-cd sentences. It relevantly provides:
87 Release date of pre-cd sentence
…
(2) The release date of a long-term determinate pre-cd sentence is the date that is 3 months before its sentence expiry date.
[56] A sentence of more than 12 months’ imprisonment is a long-term pre-cd sentence.26
[57] The critical date is therefore the sentence expiry date. It is defined as the date on which the offender who was subject to the sentence has served its full term and therefore ceases to be subject to it. The sentence expiry date of a pre-cd sentence is defined in s 83 of the Parole Act as the date determined under Parts 4 and 6 of the Criminal Justice Act, on which the sentence expires.
[58] Section 92(5) and (6) of the Criminal Justice Act provide for the calculation of the sentence expiry date in cases such as that of Mr Romanov where cumulative sentences of imprisonment have been imposed:
92 Calculation of parole, final release, and sentence expiry dates
…
(5) The sentence expiry date for an offender who is subject to cumulative sentences of imprisonment shall be determined by –
(a) Determining the term imposed by the court for each sentence within each link in the cumulative chain; and
26 Parole Act 2002, s 4(1).
(b) Taking the longest term within each link; and
(c) Adding that term to the longest term from the other links in the cumulative chain.
(6) For the purposes of subsections (3), (4) and (5) of this section, each sentence or group of sentences that is cumulative on another sentence or group of sentences or on which another such sentence or group of sentences is cumulative constitutes a link in the cumulative chain.
[59] The sentence expiry date in Mr Romanov’s case is therefore calculated by adding 13 years and nine months to three years to give a period of 16 years and nine months from the commencement date of 24 September 1999. Taking into account time spent on remand (403 days) and time spent at large following his escape from custody (25 days), the sentence expiry date is 10 June 2015. This means that the application for a recall order could have been made at any time up to 10 March 2015. It was made on 29 May 2013, well within time.
[60] In summary, Mr Romanov’s claim that he has been unlawfully detained in custody is untenable and must be struck out. Any statement made by Corrections at the Parole hearing in October 2008 regarding the length of Mr Romanov’s sentence was plainly immaterial to the Board’s decision not to grant parole. That claim is completely untenable and has no prospect of succeeding. The alternative claims, that there was no jurisdiction to make the s 107 order or the recall order, are also without prospect. It is accordingly not necessary to consider the alternative basis of the application brought by Corrections, namely that the claim is also an abuse of process. However, I briefly address this ground also.
Is the claim an abuse of process?
[61] It has long been established that it is an abuse of process to attempt to re- litigate a question that has already been finally determined by a competent court. A L Smith L J confirmed this in Stephenson v Garnett in 1898:27
… the Court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious, yet it ought to do so when, as here, it has been shewn that the identical question sought to be raised has been already decided by a competent court.
27 Stephenson v Garnett [1898] 1 QB 677 at 680-681.
[62] Lord Halsbury expressed the position more forcefully in Reichel v Magrath:28
… I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.
[63] These passages were cited with approval by the House of Lords in
Hunter v Chief Constable of West Midlands & Anor.29
[64] It may be an abuse of the process of the Court to challenge an earlier final determination of an issue or claim even where the strict requirements necessary to establish the substantive defences of res judicata or issue estoppel cannot be made out, for example, where the parties to the earlier proceeding are not the same as the
parties to the later proceeding or their privies.30 In Johnson v Gore Wood & Co
(a firm), Lord Bingham confirmed that the enquiry is an open one, requiring:31
… a broad merits-based judgment which takes into account the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court …”
[65] This broad enquiry must be guided by the public policy grounds underpinning the rule. In Z v Dental Complaints Assessment Committee, Elias CJ suggested that two purposes were served by discouraging re-litigation.32 The first is to protect the interests of litigants who have obtained final judgment and prevent them from being vexed twice in the same matter. To a large extent, this purpose is served by the rules preventing litigation between the same parties, including
res judicata, issue estoppel and the rule against double jeopardy. The second is “the public interest in stilling controversies” and preventing a re-trial of the same issue. This interest is based on the need to prevent unjustified inconsistencies between the
findings of different courts and avoid a loss of public confidence in the
28 Reichel v Magrath 14 App Cas 665 at 668.
29 Hunter v Chief Constable of West Midlands & Anor [1982] AC 529 (HL) at 541.
30 Chamberlains v Lai [2006] NZSC 70, [2007] 2 NZLR 7 at [62] per Elias CJ, Gault and Keith JJ; Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [61] per Elias CJ, at [127] per Blanchard, Tipping and McGrath JJ.
31 Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 (HL) at 31.
32 At [58].
administration of justice.33 Although the first purpose remains relevant, the collateral attack doctrine is based on the second of these purposes.34
[66] Mr Romanov has not previously contended that Corrections misled the Board at the hearing in October 2008. This part of his claim cannot be challenged on the basis that it is an abuse of the process of the Court.
[67] Mr Romanov contended in the proceedings before Venning J that the application for the order under s 107 was brought out of time. The Judge rejected that argument. However, the Judge’s analysis of this issue was not critical to his decision which solely concerned whether the recall order was applied for in time. This turned on the statutory release date, not the final release date. In these circumstances, I do not consider that Mr Romanov’s present proceeding is an abuse of the process of the Court to the extent that he seeks to argue that the s 107 application was out of time.
[68] However, the claim based on the recall order involves a collateral attack on the decision of Venning J that this order was applied for in time and that there were proper grounds for it. Mr Romanov did not appeal that decision. In my view, it is an abuse of process for Mr Romanov to attempt to re-litigate the same issue in the present proceeding, it having been finally determined against him. This is not a complete answer to Mr Romanov’s claim, it would merely limit the scope of it.
Result
[69] The statement of claim dated 10 July 2014 is struck out in its entirety.
M A Gilbert J
33 McLachlan v Vector Ltd CA157/05, 2 February 2006 at [27].
34 Z v Dental Complaints Committee, above n 30, at [62].
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