Romanov v New Zealand Parole Board

[2016] NZHC 1353

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000074 [2016] NZHC 1353

BETWEEN

RICARDO ROMANOV

Applicant

AND

NEW ZEALAND PAROLE BOARD Respondent

CRI-2014-404-000093

BETWEEN  DEPARTMENT OF CORRECTIONS First Applicant

NEW ZEALAND POLICE Second Applicant

ANDRICARDO ROMANOV Respondent

Hearing:	(On the papers)
Judgment:	22 June 2016

JUDGMENT OF VENNING J

This judgment was delivered by me on 22 June 2016 at 11.30 am,  pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Crown Law, Wellington (BCL Charmley and K Cooper) Meredith Connell, Auckland

Copy to:            Q Duff, Auckland

P F Gorringe, Hamilton

R Romanov

ROMANOV v NZ PAROLE BOARD [2016] NZHC 1353 [22 June 2016]

[1]      In  a  judgment  delivered  on  10  October  2014  the  Court  dismissed  Mr

Romanov’s appeal against a final recall order.1

[2]      Mr Romanov has now sent a document to the Registrar of the High Court dated 10 June 2016 in which he seeks a rehearing.

[3]      It is necessary to put the application for rehearing in context.

[4]      On 23 September 2009 the Chief Executive applied under s 107 of the Parole Act 2002 for an order that Mr Romanov not be released on parole before the applicable release date.  The order was made on 15 March 2010.  As a consequence Mr Romanov was not released on parole until 7 March 2012.   When released on parole he was subject to standard and special release conditions which were to run until the expiry of six months after his statutory release date.   Further conditions were added on 20 June 2012 and the address he was to live at was changed on 12

April 2013.

[5]      On 28 May 2013, Mr Romanov was arrested by the police on a charge of burglary in relation to an expensive Ducati motorcycle.  An application to recall was made on 29 May 2013.  Mr Romanov was returned to prison under an interim recall order.

[6]      In a decision delivered on 14 August 2013 the Parole Board made a final recall order pursuant to s 66 of the Parole Act.

[7]      Mr Romanov sought to review that recall order decision pursuant to s 67 of the Parole Act.  In a decision delivered on 18 December 2013 the chairperson of the Parole Board noted the application for review was out of time.   It was over three months late.  Given the delay and that, in the opinion of the chairperson, there was no basis upon which the review application could be considered, the application was

declined.  Mr Romanov then appealed to this Court.

1      Romanov v NZ Parole Board & Department of Corrections & Anor v Romanov [2014] NZHC

2491.

[8]      In  its  decision  this  Court  had  to  identify  the  sentence  expiry  date.    It determined  that  the  correct  sentence  expiry  date  was  10  June  2015  and  the consequent release date had not been reached.   Mr Romanov remained subject to recall when the application for recall was made.

[9]      In the circumstances there was strictly no need to consider whether the application under s 107 had been made in time or not which was a further issue the parties had raised.  However as the parties had addressed submissions on that issue the Court dealt with the matter.  The Court concluded that, having regard to s 90 and the effect of s 92(3), the final release date of the cumulative sentences Mr Romanov faced  led  to  an  overall  final  release  date  of  16  October  2009,  adjusted  to  10

November 2009 to take account of Mr Romanov’s time at large.

[10]     Mr Romanov therefore was not  eligible for final release at the time the application under s 107 was made in September 2009.

[11]     Further, for the purposes of s 107 of the Parole Act, Mr Romanov was still subject to a pre-cd sentence for a specified offence as the sentence expiry date for that specified offence had not been reached. The appeal was dismissed.

[12]     In his application of 10 June Mr Romanov submits that the decision was a

“nullity” and exceptional circumstances exist because:

“The Parole Board had no mandate in law to hear such an application, nor did the Department of Corrections have jurisdiction to file an Application to recall … because upon my release from prison on 7 March 2012. I was not subject to final recall.”

He says his initial final release date was 10 November 2009.

[13]     Mr Romanov argues that his statutory release date, the “must release” date was 10 March 2012.   He argues that the 10 November 2009 date was his first statutory release date so there was no jurisdiction to make the order on 15 March

2010.

[14]     Mr Romanov does not address the 2015 sentence expiry date referred to in the judgment and appears to consider that the release date was also the sentence expiry date.

[15]     Mr Romanov seeks to rely either on the Court’s inherent jurisdiction for a rehearing or on “s 14 of the 2001 Amendment Act”.  It seems that Mr Romanov is referring to the Crimes (Criminal Appeals) Amendment Act 2001, s 14 of which reads:

Application for leave for rehearing

(1)      This section applies to any person—

(a)       who appealed, or applied for leave to appeal, under Part 13 of the principal Act before the date of commencement of this section; and

(b)       who  applied  for  legal  aid  in  respect  of  the  appeal  or application, but was not granted legal aid in respect of it; and

(c)       whose appeal or application was determined without oral submissions being heard; and

(d)      whose appeal or application was dismissed.

…

[16]     The section does not apply to Mr Romanov as he was represented at the hearing  before  the  Court  and  oral  submissions  were  heard  and  considered.    In addition the application for review was in any event under the Parole Act, not the Crimes Act.

[17]     The  Court  does  have  inherent  jurisdiction  to  revisit  its  decisions  in exceptional circumstances when required to do so by the interests of justice:   R v Smith.2

[18]     There  are  no  such  exceptional  circumstances  in  the  present  case.    Mr Romanov is seeking to relitigate issues that were before the Court when the Court dealt with his appeal against the final recall order.   There is nothing fresh for the

Court to consider.

2      R v Smith [2003] 3 NZLR 617 (CA).

[19]     Essentially Mr Romanov submits he was eligible for final release by the time the s 107 application was made or at least by the time the order was made.  As noted that issue was considered and dealt with by the Court in its earlier decision.   Mr Romanov’s application is an attempt to revisit the decision of the Court delivered on

10 October 2014, but he has not advanced any fresh material to support it.

[20]     The application for a rehearing is dismissed.

Venning J