Romanov v Chief Executive of the Department of Corrections
[2019] NZHC 3358
•17 December 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-88
[2019] NZHC 3358
BETWEEN RICARDO ROMANOV
Plaintiff
AND
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
First Defendant
AND
THE ATTORNEY-GENERAL
Second Defendant
AND
NEW ZEALAND PAROLE BOARD
Third Defendant
Hearing: 3 October 2019 Counsel:
Plaintiff in Person
S K Shaw and M L Clarke-Parker for 1st and 2nd Defendants Third Defendant abides decision
Judgment
17 December 2019
JUDGMENT OF CULL J
[1] Mr Romanov brings a claim seeking relief for the unlawful administration of his sentence of imprisonment. The Attorney-General and the Chief Executive of the Department of Corrections (the defendants) say that Mr Romanov is estopped from advancing each cause of action in the claim as he has brought proceedings on these matters before. The defendants also fundamentally dispute the issues raised.
Background
[2] On 24 September 1999, Mr Romanov was sentenced to 13 years and nine months’ imprisonment for aggravated robbery, and three years’ imprisonment for theft,
ROMANOV v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS AND OTHERS [2019] NZHC 3358 [17 December 2019]
imposed cumulatively.1 His total sentence was therefore 16 years, nine months’ imprisonment.
[3] In February 2006, Mr Romanov escaped from Rangipo Prison. He went on to unlawfully take a motor vehicle and burgle a property. Towards the end of February he was apprehended and held in custody.
[4] In May 2006, Mr Romanov received a sentence of two years and six months’ imprisonment for the February offending.2 The sentence was imposed cumulatively on the 13 year, nine month sentence awarded in 1999. The Judge overlooked that Mr Romanov was subject to a further cumulative sentence of three years’ imprisonment.
[5] In November 2007, Mr Romanov successfully appealed the May 2006 sentence, and instead a sentence of two years’ imprisonment was imposed cumulatively on the 13 years, nine month sentence.3 Again, the additional existing cumulative sentence of three years’ imprisonment was overlooked by Baragwanath J.
[6] On 28 October 2008, Mr Romanov attended a parole hearing. He challenged the calculation of his sentence dates, contending that he had completed his sentence for aggravated robbery by serving two-thirds of the 13 years and nine months’ sentence, and was therefore only subject to the three year sentence for the theft. On that basis, he said his parole eligibility date was 10 October 2008 and his end sentence date was 10 November 2009.4
[7] The Parole Board declined to consider the issue of the calculation of his sentence and parole was declined. The Board was satisfied that if Mr Romanov was released he would pose an undue risk to the safety of the community.
[8] In September 2009, the Department of Corrections (Corrections) applied under s 107 of the Parole Act 2002 for an order that Mr Romanov not be released before the applicable release date.
1 R v Genovese HC Auckland T982633, 24 September 1999.
2 Police v Sannd DC Pukekohe CRN 6057008149-50, 10 May 2006.
3 Romanov v New Zealand Police HC Auckland CRI-2004-404-277, 22 November 2007.
4 The October 2008 reference appears to be an error. The correct date is 10 November 2008.
[9]In March 2010, the s 107 application was granted.
[10] In March 2012, Mr Romanov was granted parole and issued with a release licence.
[11]In May 2013, Mr Romanov was arrested for burglary.
[12] Corrections applied for a final recall order under s 66 of the Parole Act. On 14 August 2013, that recall order was granted.
[13]In December 2013, Mr Romanov unsuccessfully reviewed the recall order.
[14] Mr Romanov applied for a writ of habeas corpus claiming that his detention in custody was unlawful. This application was dismissed in January 2014. 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.
[15] Corrections and Police applied to recall the November 2007 decision of Baragwanath J to correct the error that resulted from his overlooking the cumulative sentence of three years’ imprisonment imposed by the Judge in 1999. At the same time, Mr Romanov applied for leave to appeal out of time against the final recall order made by the Board under s 66 of the Parole Act. Venning J dismissed both of these applications in October 2014.5
[16]In June 2015, Mr Romanov’s sentence expired.
[17] In October 2015, the High Court granted an application to strike out Mr Romanov’s claims against the Attorney-General.6
5 Romanov v New Zealand Parole Board & Department of Corrections [2014] NZHC 2491.
6 Romanov v Attorney-General [2015] NZHC 1932.
Estoppel and abuse of process
Estoppel
[18] There are two types of estoppel relevant to these proceedings: cause of action estoppel and issue estoppel. Where a final decision has been pronounced by a New Zealand court of competent jurisdiction in respect of litigation, any party to such litigation is estopped in any subsequent litigation from disputing the decision on the merits.7 This is known as a plea of estoppel per rem judicatam or cause of action estoppel. It arises where the cause of action sought to be estopped is precisely the same as that upon which there has been an earlier adjudication.8
[19] The reasons for the rule were clearly stated by Lord Blackburn in Lockyer v Ferryman:9
The object of the rule of res judicata is always put upon two grounds – the one public policy, that it is in the interest of the State that there should be an end of litigation, and the other, the hardship on the individual, that he should be vexed twice for the same cause.
[20] An issue estoppel arises where a judgment has determined an issue as an essential and fundamental step in the logic of the judgment and without which it could not stand.10 The issue may not be contested in subsequent litigation between the same parties.11 The Supreme Court in Van Heeren v Kidd outlined essentially the same rational for issue estoppel as for cause of action estoppel:12
The rule rests on two foundations:
(a)the interest of the community in the determination of disputes and the finality and conclusiveness of judicial decisions; and
(b)the protection of individuals from repeated suits for the same cause.
7 Shiels v Blakeley [1986] 2 NZLR 262 (CA) at 266.
8 Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37 (CA) at 41.
9 Lockyer v Ferryman (1877) 2 App Cas 519 at 530.
10 Van Heeren v Kidd [2016] NZCA 401, [2017] 3 NZLR 141 at [1]; and Talyanich v Index Developments Ltd [1992] 3 NZLR 28 (CA) at 37.
11 Van Heeren v Kidd, above n 10, at [1]; and Talyanich v Index Developments Ltd, above n 10, at 37.
12 At [1].
[21] If parties were permitted to bring fresh litigation because of new views of the law of the case or new versions of the facts, litigation would have no end, except where legal ingenuity is exhausted.13
Abuse of process
[22] As the Supreme Court in Broadspectrum (New Zealand) Ltd v Nathan held, “[i]t is incumbent upon a party to litigation to raise every point that is relevant to the issues before the court in that litigation.”14 This proposition is often traced back to the following passage from Sir James Wigram VC in Henderson v Henderson:15
In trying this question, I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonably diligence, might have brought forward at the time.
[23] The Supreme Court went on to say, if a party does not raise an aspect of its case in litigation, but then in a later proceeding attempts to introduce it as relevant to the same issue between the parties, that can amount to an abuse of process.16 Essentially, a party should not be able to relitigate a matter under a “different garb”: a matter once determined may not be again litigated, a matter which could and should have been raised in proceedings which have been determined should not be allowed to be raised subsequently, and a collateral attack upon a final decision in other proceedings will not be permitted.17
13 Hoystead v Commissioner of Taxation [1926] AC 155, [1925] All ER Rep 6.
14 Broadspectrum (New Zealand) Ltd v Nathan [2017] NZCA 434, (2017) 15 NZELR 398 at [49].
15 Henderson v Henderson (1843) 3 Hare 100 at 114, (1843) 67 ER 313 (Ch) at 319.
16 Broadspectrum (New Zealand) Ltd v Nathan, above n 14, at [50].
17 New Zealand Social Credit Political League Inc v O’Brien [1984] 1 NZLR 84 (CA) at 95.
Causes of action
[24]There are three causes of action in this proceeding:18
(a)a challenge to Mr Romanov’s parole eligibility date;
(b)challenges to an order made under s 107 of the Parole Act; and
(c)a challenge to a recall decision made under s 66 of the Parole Act.
[25] The defendants submit all claims should be dismissed for issue estoppel, cause of action estoppel, and/or abuse of the court’s processes as Mr Romanov has brought proceedings and had final decisions made by this Court on all matters before. I address each cause of action in turn.
Parole eligibility
[26]Mr Romanov challenges Corrections’ calculation of his parole eligibility date.
[27] Mr Romanov first appeared before the Parole Board on 28 October 2008. He says he was legally entitled to appear before the Parole Board for consideration of release at one-third of his 16 years, nine months’ sentence in August 2004 because he was serving a notional single sentence, as defined under s 75 of the Parole Act.
[28] In two separate proceedings, this Court addressed the issue of Mr Romanov’s parole eligibility date. In Romanov v New Zealand Parole Board, Mr Romanov brought an application for leave to appeal and to substantively appeal the Parole Board’s decision to make a final recall order under s 66 of the Parole Act.19 He argued that the Board lacked jurisdiction to make the recall order on 14 August 2013, and there was no substantive basis for the recall. In addressing the first point, Venning J assessed Mr Romanov’s sentence commencement date, parole eligibility date, final release date, and sentence expiry date.20 The Judge assessed the application of the
18 Mr Romanov pleaded four causes of action. I have considered his second and third causes of action under the heading “The s 107 order and VPU programme”.
19 Romanov v Parole Board, above n 5.
20 At [45]-[46].
Parole Act and the Criminal Justice Act 1985 to the calculations and concluded that Mr Romanov’s parole eligibility date was 10 November 2008, pursuant to ss 89 and 92 of the Criminal Justice Act.21
[29] In Romanov v Attorney-General, Mr Romanov claimed that his parole eligibility and final release dates should have been calculated under s 90 of the Criminal Justice Act without reference to s 75 of the Parole Act.22 He also claimed that Corrections misled the Board at the Parole Board hearing on 28 October 2008 as to the length of the sentence he was serving. Justice Gilbert, again, assessed the applicability of both the Criminal Justice Act and the Parole Act, and concluded that Venning J’s calculations as to Mr Romanov’s parole eligibility date and final release dates under the Criminal Justice Act were correct.23 He upheld that Mr Romanov’s parole eligibility date was 10 November 2008.24
[30] It appears to me that the claim based on Mr Romanov’s parole eligibility date involves a re-litigation of issues already canvassed and answered by this Court. Mr Romanov’s present argument relates to the application of the provisions of the Parole Act and the Criminal Justice Act in calculating his sentence. The application of that legislation was in issue in the proceedings before Venning and Gilbert JJ, and the issue has been conclusively determined by this Court, a court of competent jurisdiction, including as it applies to parole eligibility.
[31] Before Venning J, Mr Romanov questioned his parole eligibility date in the context of arguing his final release date was incorrectly calculated. Venning J calculated his parole eligibility date as at 10 November 2008. Before Gilbert J, Mr Romanov claimed that his parole eligibility date was incorrectly calculated, in part based on Corrections’ misleading the Board and in part because of the application of the Parole Act and Criminal Justice Act. Gilbert J again calculated his parole eligibility date as at 10 November 2008. Mr Romanov has not appealed either 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 already been determined twice.
21 At [46].
22 Romanov v Attorney-General, above n 6.
23 At [49].
24 At [32], see footnote 18.
[32] In any event, Mr Romanov’s parole eligibility date was not August 2004, as he submits, but was November 2008. The Parole Act governs parole for all offenders including sentences imposed prior to the Act coming into force.25 The relevant sentences for calculating eligibility for parole are those imposed on 24 September 1999: the 13 year nine month sentence for aggravated robbery, and the three year sentence for theft, imposed cumulatively.
[33] Section 20 of the Parole Act governs the parole eligibility date of an offender. In the case of an offender subject to one or more pre-commencement date (pre-cd) sentences, like Mr Romanov, the parole eligibility date is the later of the offender’s parole eligibility under ss 89 and 92 of the Criminal Justice Act, and, if the offender does not have a parole eligibility date under those sections, their final release date under s 91 of the Criminal Justice Act.26
[34] Section 92(3) of the Criminal Justice Act explains how to calculate the parole eligibility for cumulative sentences of imprisonment. It is determined by calculating, for each sentence within each link in the cumulative chain, the period from the commencement of the sentence to the close of the date on which the offender becomes eligible for parole in accordance with s 89 of the Criminal Justice Act, or, where there is no such parole eligibility date, the final release date for that sentence. Those periods should then be added together. This process will give the parole eligibility date under ss 89 and 92 of the Criminal Justice Act, in accordance with s 20(2)(a) of the Parole Act.
[35] In Mr Romanov’s case, the theft sentence has an eligibility date under s 89 of the Criminal Justice Act, but the aggravated robbery sentence does not. Section 89(3) provides that an offender who is subject to a determinate sentence for a term of more than 12 months, not being a sentence for a serious violent offence, is eligible to be released on parole after the expiry of one-third of that sentence. This applies to the theft sentence.
25 Parole Act 2002, s 8.
26 Section 20(2).
[36] Section 89(4) and (7) provides that there is no eligibility for parole for a sentence of imprisonment for a serious violent offence, which included aggravated robbery,27 where the sentence is for less than 15 years. Where there is no parole eligibility under s 89, the final release date must be calculated (and then added to the periods identified for the other links in the cumulative chain, as explained above).28
[37] Section 91 provides that an offender’s final release date shall be determined in accordance with ss 90 and 92. Section 90(1)(d)(i) provides that an offender’s final release date for a serious violent offence with no minimum period of imprisonment is after the expiry of two-thirds of the sentence. This applies to the aggravated burglary sentence.
[38] Applying s 92(3) of the Criminal Justice Act, parole eligibility for the full chain of sentences is:
(a)the final release date of the aggravated burglary sentence, which is two thirds of the 13 year, nine month sentence. This equals nine years and two months; plus
(b)the parole eligibility date of the theft sentence, which is one third of the three year sentence. This equals one year.
[39] Together, they total 10 years and two months after the commencement of Mr Romanov’s sentence. After taking into account the 403 days Mr Romanov spent in custody before sentence in 1999 and the 25 days at large following his escape in 2006. I calculate that this results in a parole eligibility date of 10 November 2008, as both Venning and Gilbert JJ found.
[40] As a result, Mr Romanov’s appearance before the Parole Board in October 2008 was timed correctly and was lawful. Section 75 of the Parole Act does nothing to change this analysis.29 This cause of action fails.
27 Criminal Justice Act 1985, s 2.
28 Parole Act 2002, s 20; and Criminal Justice Act 1985, s 92(3)(a).
29 Romanov v Attorney-General, above n 6, at [50].
The s 107 order and VPU programme
[41] On 15 March 2010, the Parole Board ordered that Mr Romanov not be released until his applicable release date under s 107 of the Parole Act.
[42] The second cause of action advanced by Mr Romanov is that the Board’s decision to make the s 107 order was incorrect in principle and in law because it was made in part on the recommendation that Mr Romanov attend a Violence Prevention Unit (VPU) programme which, he says, he was not eligible to attend. Mr Romanov says he did not meet the criteria to be considered for the VPU programme because he was not a low-medium or minimum classification prisoner, and his Risk of (re)Conviction and Risk of (re)Imprisonment (RoC*RoI) was below the stated criteria of 0.7 or higher. On that basis, he says his attendance at a VPU programme should not have been taken into account when deciding whether to make the s 107 order in 2010.
[43] Mr Romanov also says that emails originating from the office of the Chief Executive of Corrections were sent to the Parole Board prior to the s 107 application hearing purporting that Mr Romanov had consented to the order being granted. This consent was not given. Mr Romanov says those emails, along with other unrelated and false material, caused or contributed to the s 107 order being made.
[44] The defendants submit the claim is subject to cause of action estoppel and is an abuse of process under the rule in Henderson v Henderson.30 Mr Romanov has already challenged the s 107 order in the proceeding before Gilbert J. The defendants submit that he cannot bring a further challenge to that order on the basis of a different argument that was available before Gilbert J.
[45] In the proceeding before Gilbert J, Mr Romanov claimed that Corrections was out of time when it applied for the order under s 107 and accordingly there was no jurisdiction for the Board to make that order. After canvassing the issue in detail, the Judge found the argument was “completely untenable”.31 In the present proceeding,
30 Henderson v Henderson, above n 15.
31 Romanov v Attorney-General, above n 6, at [35].
Mr Romanov claims again that the s 107 order was incorrect, though for another reason, as set out above.32
[46] Applying the rule in Henderson v Henderson, Mr Romanov was obliged to bring forward the entirety of his case against the s 107 order, including any challenge to the VPU programme, at the initial hearing. It is an abuse of process to now bring a fresh proceeding seeking to re-litigate the s 107 order. The position is exacerbated by the fact that Mr Romanov raised the challenge on the basis of the VPU programme in his unsuccessful review of the s 107 order before the Board. Mr Romanov had every opportunity to raise this argument in the proceeding before Gilbert J but did not. As the Court of Appeal has held, a matter once determined may not be again litigated, and a matter which could and should have been raised in proceedings which have been determined should not be allowed to be raised subsequently.33 To protect the integrity of the Court’s process and finality in litigation, I find Mr Romanov’s challenge under this cause of action to be an abuse of process.
[47] In any event, Mr Romanov was able to attend the VPU programme. Mr Romanov’s evidence is that he could not attend the VPU programme as he did not automatically meet the criteria because his RoC*RoI in 2007 was too low. A RoC*RoI score is a static risk tool used by Corrections to calculate a prisoner’s risk of (re)conviction and (re)imprisonment. A letter written to Mr Romanov from the Inspector of Corrections on 22 May 2007 indicated that he would not be eligible to attend a VPU programme because his RoC*RoI score was 0.34499, “well below the stated criteria”.
[48] Corrections submit that while the information on eligibility criteria to attend a VPU programme was correct and Mr Romanov did not automatically meet these in 2007, it does not follow that he would not be able to attend the VPU programme from that point onwards and certainly not by 2010. Ms Nicola Perkins, the current Manager of Psychology Services, Te Whare Manaakitanga Special Treatment Uni, at Corrections explained, there are some non-negotiable criteria to enter the programme. For example, all men must have a low-medium security classification (or lower)
32 At [45].
33 New Zealand Social Credit Political League Inc v O’Brien, above n 17, at 95.
before entering a VPU programme, for safety reasons. The information before the Board at the time the s 107 order was considered indicated Mr Romanov had a low- medium security classification.
[49] Regarding the other criteria, Ms Perkins’ understanding is that exceptions were always able to be made if there was a clear clinical reason. She gave the example that an assessing psychologist may deem that a man with a low static risk score (that is, one below 0.7) had a high number of dynamic risk factors present, and therefore a special treatment unit placement to a VPU programme would be warranted.
[50] At least two psychological assessments presented to the Board assessed Mr Romanov’s RoC*RoI as significantly underestimating his risk of reoffending and recommended Mr Romanov complete the VPU programme. But he did not engage with it. In Ms Perkins’ words:
I have reviewed the online file and the first available psychology report is dated 29 May 2008. This report states “[a]n appointment was made to interview Mr Romanov for an assessment for the purpose of referral to the Violent Prevention Unit. Mr Romanov refused to meet with the psychologist and informed that he would be assessed by an independent private psychologist. The referral will be closed.” … This suggests that psychological staff were open to a VPU placement and it was Mr Romanov who declined this. A similar position is noted in the report by Christina Fon dated 01 October 2008 provided to the Parole Board (which Mr Romanov refused to engage in) where Mr Romanov’s eligibility for VPU was dependant on his willingness to initially engage with staff and that people should encourage him to take part… This again suggests that it may have been Mr Romanov’s refusal to engage in the process that prevented him from progressing to the VPU between 2008 and March 2010.
[51] It is incorrect, therefore, that Mr Romanov was ineligible to attend a VPU programme, as he asserts. On that basis, Mr Romanov’s claim, that the s 107 order was incorrect in principle and in law because it was made on the recommendation that he attend a VPU programme, is not substantiated.
[52] In relation to the emails, the Board’s s 107 decision clearly records that Mr Romanov opposed the application:
[12] Notwithstanding Mr Romanov declining to appear today, the Board takes account of his written submissions setting out his objections to the application. Essentially, he maintains that Christina Fon lapsed into error in recommending the VPU in 2008 after he had earlier been declined access to
that programme on account of his low Roc*RoI score and referred to the MIRP instead. He sees the Department as, effectively, now ratcheting up his Roc*RoI score in an unprincipled way to hold him back after having completed the MIRP as stipulated.
[53] The Board therefore did not make the s 107 order on the basis of any consent given by Mr Romanov. Instead, it is apparent the basis for the decision was Mr Romanov’s level of risk:
[13] … The Board is satisfied that, for reasons fully explained, Mr Romanov [sic] early Roc*RoI was an imperfect reflection of his risk as later clinically assessed. In his case, earlier intervention had been crudely determined by his Roc*RoI score in accordance with the default sentence planning process but this process was later overtaken by the recognition that his risk required more sophisticated assessment. That is by no means uncommon in sentence management and is, in fact, one of the major reasons for the existence of Psychological Services as a management tool.
[14] Having considered the evidence, the Board is satisfied, in the absence of evidence to the contrary, that Mr Romanov, if released before his applicable release date, would likely commit a specified offence between the date of released and the applicable release date the risk of which is significantly higher than accepted to exist in the average case.
[54] There is therefore no basis on which to argue that Mr Romanov’s consent, or lack thereof, caused or contributed to the s 107 order being made. This cause of action fails.
The s 66 recall order
[55] In March 2012, Mr Romanov was granted parole and issued with a release licence. In May the following year, he was arrested for burglary. Corrections applied for a final recall order for Mr Romanov under s 66 of the Parole Act. On 14 August 2013, that recall order was granted.
[56] Mr Romanov claims that the s 66 recall application was made out of time because he had reached his statutory release date on 10 June 2012 and all relevant sentences had expired. Mr Romanov says he was released on his applicable release date on 7 March 2012, three months prior to his sentence expiry date of 10 June 2012. He was released with the mandatory six months’ conditions, set to expire no later than 10 December 2012. He was then recalled to prison on 29 May 2013 to serve, in his words, “a notional single sentence which had expired on June 10, 2012.” As part of
this challenge, Mr Romanov says that a second release licence was presented to recall him which falsely extended the parole conditions recorded to expire in September 2015.
[57] Mr Romanov further submits that his 16 year, nine months’ notional single sentence contained cumulative terms, the longest being three years. Applying s 78(8) of the Criminal Justice Act, he says those cumulative sentences commenced in late 2007, being the two-thirds completion date of the specified sentence of 13 years, nine months. On that basis, he says that all cumulative sentences had expired in late 2010. The recall was therefore unlawful as he had reached his statutory release date on 10 June 2012 and could not be recalled.
[58] The defendants submit the claim is subject to issue estoppel, and in any case, the recall application was made in time.
[59] Dealing with issue estoppel first, Mr Romanov has already twice challenged the s 66 recall order and has been unsuccessful on both occasions. As noted, the proceedings before Venning J included an application for leave to appeal out of time against the recall decision, which was granted, and a substantive appeal on the ground that the Board lacked jurisdiction to make the final recall order on 14 August 2013.
[60] Justice Venning found that, in order to ascertain whether the Board had jurisdiction to make the final recall order under s 66, all that was necessary to consider was whether Mr Romanov met the pre-conditions for recall under s 60(2) of the Parole Act. Those conditions were that he must be subject to a determinate sentence, he must not have reached his statutory release date at the time of the recall application, and he must be on parole.34
[61] There was no dispute that Mr Romanov was subject to a determinate sentence and was on parole. The Judge went on to consider whether his statutory release date had been reached by the date of the application, that is 29 May 2013. After traversing the legislation, Venning J concluded that the sentence expiry date of 10 June 2015 and the consequent statutory release date of 10 March 2015 had still not yet been reached
34 Romanov v Parole Board, above n 5, at [53].
by the date of judgment.35 Mr Romanov therefore remained subject to recall when the application for recall was made.
[62] This issue was canvassed again before Gilbert J, where Mr Romanov argued that there was no jurisdiction to make the final recall order because it was applied for after his statutory release date. The Judge went through essentially the same analysis as Venning J, first looking at the definition of statutory release date in s 4 of the Parole Act and following that provision through to ss 17 and 87 of the Parole Act, and s 92 of the Criminal Justice Act.36 Gilbert J came to the same conclusion as Venning J, that the statutory release date was 10 March 2015, which meant the s 66 application in May 2013 was made within time.37
[63]In closing, Gilbert J made the following comments:38
[T]he 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.
[64] Again, Mr Romanov now seeks to claim that the s 66 recall application was made out of time and without jurisdiction. This cause of action is precisely the same as that which both Venning and Gilbert JJs have already determined. Where a final decision has been pronounced by a New Zealand court of competent jurisdiction over the parties to, and the subject matter of, the litigation, any party to such litigation is estopped in any subsequent litigation from disputing the decision on the merits.39 In these circumstances, I consider Mr Romanov is estopped from bringing this cause of action.
35 At [64].
36 Romanov v Attorney-General, above n 6, at [53]-[59].
37 At [59].
38 At [68].
39 Shiels v Blakeley, above n 7, at 266.
[65] I also consider that, for the same reasons outlined above by Gilbert J, this is an abuse of process: a collateral attack upon a final decision in other proceedings is not permitted.40
[66] In any event, the recall application was made in time for the reasons set out in the judgments of Venning and Gilbert JJ.41 I do not find it necessary to repeat here the full analysis of both Judges,42 except to concur with their respective findings, that Mr Romanov’s statutory release date was 10 March 2015. I also do not need to consider Mr Romanov’s allegations of a “falsified licence” because the licence referred to does not affect Mr Romanov’s statutory release date or sentence expiry date, which are the relevant dates for calculating whether the recall order was made in time.
[67] The final matter to assess is the application and potential impact of s 78(8) of the Criminal Justice Act to Mr Romanov’s statutory release date. Section 78(8) relevantly provides:
78 Commencement of sentence or term of committal
…
(8) Where a determinate sentence of imprisonment is directed to be cumulative on another determinate sentence of imprisonment, the term of the sentence shall commence on the final release date of that other sentence; …
[68] Mr Romanov submits that the final release date of the 13 years nine months’ sentence was October 2007 (being nine years and two months, or two-thirds of the sentence, from the commencement date). Therefore, he says, his cumulative sentences of three years commenced in late 2007, pursuant to s 78(8). As a result, he says all cumulative sentences had expired in late 2010 and the recall in 2013 was therefore unlawful. This s 78(8) submission is essentially another prong to the overall submission that the s 66 recall was unlawful because, he says, it was made after his sentence expiry date.
40 New Zealand Social Credit Political League Inc v O’Brien, above n 17, at 95.
41 Romanov v Parole Board, above n 5, at [45]-[64]; and Romanov v Attorney-General, above n 6, at [51]-[60].
42 I briefly outline the analysis at [56].
[69] The confusion appears to be that ss 78 and 92 of the Criminal Justice Act propose different approaches to assessing a prisoner’s final release date. Section 78(8) suggests that there can be a final release date for each sentence, that is, each link in the cumulative sentence chain. Section 92(4), however, suggests that to calculate a prisoner’s final release date, one must add the relevant periods together for each link in the cumulative sentence chain to come to an overall final release date.
[70] This has undoubtedly caused some confusion for Mr Romanov. However for the purposes of this case the point can be clarified in short order. First, s 92 is dealing with calculating parole, final release, and sentence expiry dates. That is the issue before the Court. Section 78, on the other hand, is explicitly dealing with the commencement of sentences.
[71]Second, s 92(5) then provides:
(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
(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.
[72] There is no reference to the commencement of the sentences within the chain. Rather, the full terms of each sentence in the cumulative chain are added together.
[73] Third, the issue before the Court is whether the s 66 recall order was made out of time. In order to answer that question, the key issue is whether Mr Romanov’s statutory release date had been reached by 29 May 2013.43 The Parole Act and Criminal Justice Act provide the process to ascertain the statutory release date, which is explained in detail in both Venning and Gilbert JJs judgments. For the sake of clarity, I will briefly outline it:
43 Parole Act 2002, s 60(2).
(a)The statutory release date is defined in the Parole Act as the date on which an offender must be released from detention (see s 17) and ceases to be liable to be recalled to continue serving any sentence in a prison.44
(b)Section 17 provides that 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.
(c)Mr Romanov’s release date is defined in s 87(2) as three months before the sentence expiry date.
(d)The sentence expiry date of a pre-cd sentence is the date, determined under parts 4 and 6 of the Criminal Justice Act, on which the sentence expires, that is, the date on which Mr Romanov would have served the full term of the sentence.45
(e)Section 92(5) of the Criminal Justice Act provides for the calculation of the sentence expiry date where an offender is subject to cumulative sentences of imprisonment. It is to be determined by determining the term imposed for each sentence within each link in the cumulative chain and, taking the longest term within each link, adding that term to the longest term from the other links in the cumulative chain.
(f)Mr Romanov’s sentence expiry date is therefore 10 June 2015, calculated as follows: 13 years, nine months, plus three years, with adjustments for the 403 days spent in custody before sentence and his 25 day escape. His statutory release date is 10 March 2015.
[74] Following this “rather tortuous chain of statutory links” as Venning J called it, it seems clear that s 92(5) applies to the determination of Mr Romanov’s statutory release date. Section 78(8) has no impact on the relevant calculations.
44 Section 4.
45 Section 83.
[75] Finally, as the defendants submit, it would be odd if s 78(8) applied in the way Mr Romanov suggests. For example, the final release date of the aggravated robbery sentence alone is after two-thirds of the 13 year nine month sentence. If the three year theft sentence “commenced,” for the purpose of calculating the sentence expiry date, at the nine year, two month mark namely the two-thirds mark, then the sentence expiry date for the two cumulatively imposed sentences would have been reached before the 13 years nine months’ had passed. This would seem incongruous and not one that the legislature provides or intended.
[76]This cause of action also fails.
Result
[77]Mr Romanov’s claim is dismissed.
[78] Costs memoranda can be filed. If it assists, I consider 2B scale costs to be appropriate.
Cull J
Solicitors:
Meredith Connell, Wellington for the Defendants
0
5
0