Romanov v New Zealand Parole Board
[2014] NZHC 2491
•10 October 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-000074 [2014] NZHC 2491
IN THE MATTER of an application pursuant to s 68 of the
Parole Act 2002 to appeal a decision of the
New Zealand Parole BoardBETWEEN
RICARDO ROMANOV Applicant
AND
NEW ZEALAND PAROLE BOARD Respondent
CRI-2014-404-000093
IN THE MATTER of an application pursuant to the Court's inherent jurisdiction to re-open sentencing
BETWEEN DEPARTMENT OF CORRECTIONS First Applicant
NEW ZEALAND POLICE Second Applicant
ANDRICARDO ROMANOV Respondent
Hearing: 16 September 2014 Appearances:
Q Duff for R Romanov
P F Gorringe as Amicus
B C L Charmley and K Cooper for NZ Parole Board
A Longdill for Police and Department of CorrectionsJudgment:
10 October 2014
JUDGMENT OF VENNING J
This judgment was delivered by me on 10 October 2014 at 11.30 am, pursuant to Rule 11.5 of the
High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Law, Wellington
Meredith Connell, Auckland
Copy to: Q Duff, Auckland
P F Gorringe, Hamilton
ROMANOV v NZ PAROLE BOARD & DEPT OF CORRECTIONS v ROMANOV [2014] NZHC 2491 [10
October 2014]
Introduction
[1] There are two proceedings before the Court:
(a) an application by the Department of Corrections and New Zealand Police to recall and re-open an appeal judgment of Baragwanath J dated 22 November 20071 for the purposes of re-sentencing Mr Romanov; and
(b)an application by Mr Romanov for leave to appeal out of time and, if granted, an appeal against the New Zealand Parole Board’s decision on 14 August 2013 to issue a final recall order.
[2] It is convenient to address both in this one judgment as there are factual issues relevant to both.
APPLICATION BY DEPARTMENT OF CORRECTIONS AND POLICE
Background
[3] On 24 September 1999 following trial in the High Court, Mr Romanov was sentenced by Potter J to a total term of 16 years, nine months’ imprisonment.2 The sentence was made up of:
(a) thirteen years, nine months imprisonment on the lead aggravated robbery charge involving a two million dollar 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 a 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;
1 Romanov v Police HC Auckland CRI-2007-404-277, CRI-2007-404-357, 22 November 2007.
(d) a term of three years imprisonment for the theft of a motorcycle on 16
October 1996 (cumulative on the sentence of 13 years, nine months at (a));
(e) three years imprisonment (concurrent with (d)) for the theft of a
Honda motorbike in May 1998;
(f) two years imprisonment (concurrent with (d)) for the 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.
[4] On 1 February 2006 Mr Romanov escaped from Rangipo Prison by walking away from a working party. While at large he committed two further offences:
(a) unlawfully taking a motor vehicle on 20 February 2006; and
(b)burglary at Onawhero on 23 February 2006 in the course of which he took clothing, a shotgun, a radio and money.
[5] Mr Romanov was apprehended on 27 February 2006 in Pukekohe. He was charged with escaping lawful custody, unlawfully taking a motor vehicle and burglary.
[6] On 10 May 2006 having pleaded guilty to this offending, Mr Romanov was sentenced by Judge Johns in the Manukau District Court to a sentence of two years, six months imprisonment on the escaping lawful custody charge. The sentence was expressed as “being cumulative on your current sentence”. However in an earlier reference to the sentence Mr Romanov was subject to, the Judge only referred to Potter J’s sentence of 13 years, nine months imprisonment. No reference was made to the additional cumulative sentence of three years imposed by Potter J.
[7] Mr Romanov appealed against the sentence to the High Court. His appeal came before Baragwanath J on 22 November 2007.3 Mr Romanov was represented by counsel Mr G E Minchin.
[8] Baragwanath J allowed the appeal and re-sentenced Mr Romanov as follows:
[10] … All existing sentences are set aside. On the burglary charge the appellant’s sentence will be of two years. On the charge of escaping from custody charge it will be 18 months. On the charge of car conversion it will be 12 months. The three sentences are to be served concurrently among themselves but cumulatively upon the original sentence of 13 years and nine months imprisonment.
[9] It is that judgment of Baragwanath J that the Department of Corrections and Police seek to recall for the purpose of re-sentencing Mr Romanov. There is an issue as to the standing of the Department of Corrections to pursue the recall for that purpose. However practically nothing turns on that as the police are also an applicant and as respondent to the appeal clearly have standing.
The basis for the application
[10] The application to set aside the judgment of Baragwanath J is advanced on the basis the Judge was clearly mistaken as to the effect of his sentence. While the Judge referred in the course of the judgment to it being “a substantial response from the Court by way of deterrent”,4 the end result was that there was no effective increase in the length of time Mr Romanov would spend in custody as a consequence of the appeal judgment. Mr Romanov was already subject to a cumulative period of
16 years, nine months as a consequence of Potter J’s sentence.
[11] Mr Duff adopted the submissions previously filed by Mr Heaslip for Mr Romanov. He submitted the sentence imposed by Baragwanath J on appeal was an exercise of a lawful discretion and was not erroneous. The police had elected not to appeal at the time. The Court should not now interfere with the sentence.
[12] In the written submissions reference is made to s 115A of the Summary
Proceedings Act 1957 and the limitations on the right to appeal under that section.
3 Romanov v Police, above n 1.
However, s 115A has no application. That provides for an appeal from the District Court to the High Court. The sentence in issue here is the sentence imposed by Baragwanath J on appeal to this Court. The only right of further appeal in relation to that was under s 144 of the Summary Proceedings Act. The applicants concede that that right of appeal (which requires leave) is not applicable in this case.
[13] Mr Duff submitted that cumulatively the following factors namely:
· the applicants’ failure to pursue alternative remedies;
· that the Parole Board had acted inconsistently in allied proceedings;
· that Mr Romanov was paroled in 2012 (before the recall); and
· the passage of time
all point against the Court granting the application.
Discussion
Jurisdiction
[14] The first issue is whether there is jurisdiction for the Court to entertain the application at all.
[15] The decision of Baragwanath J in this Court was a decision on appeal from a decision of the District Court. In R v Smith the Court of Appeal considered whether an appeal Court can revisit an earlier decision before concluding:5
[36] … The Court [an appeal Court] has inherent power to revisit its decisions in exceptional circumstances when required by the interests of justice. Such power is part of the implied powers necessary for the Court to “maintain its character as a Court of justice”. Recourse to the power to reopen must not undermine the general principle of finality. It is available only where a substantial miscarriage of justice would result if fundamental error in procedure is not corrected and where there is no alternative effective remedy reasonably available. Without such response, public confidence in the administration of justice would be undermined.
5 R v Smith [2003] 3 NZLR 617 (CA).
[16] In Smaill v Police Miller J recalled an earlier appeal judgment and re- sentenced the appellant.6 He did so on the basis that important information (the appellant’s co-operation with the police) would have not been available to the Court earlier. In recalling the decision Miller J acknowledged the difficulty with the alternative option of giving Mr Smaill leave to appeal to the Court of Appeal under s 144 of the Summary Proceedings Act.7 The real reason for the grant of leave would be to allow an opportunity to correct the error of fact that occurred at sentencing and on appeal. Section 144 did not permit that.
[17] In R v Palmer William Young P concluded that the jurisdiction to reopen a case in the Court of Appeal depends on the Court being satisfied that:8
(a) There was a “fundamental error in procedure”;
(b) There is no alternative effective remedy available; and
(c) A substantial miscarriage of justice would result if the error is not corrected.
[18] Other cases have approached the matter on the basis that a sentence decision can be set aside on the basis it is a nullity: Butterfield v R.9 However, the Court of Appeal authority relied on by Panckhurst J in Butterfield, namely R v Nakhla (No
2),10 addressed quite a different situation. I prefer and adopt the approach of the
Court of Appeal in R v Palmer.
[19] Although in all the cases referred to the recall was for the benefit of the prisoner, I do not consider the principle should be limited in that way. I conclude that there is jurisdiction for the Crown to seek a recall of an appeal decision. Whether the application will be granted requires consideration of the points
identified in R v Palmer.
6 Smaill v Police (No 2) HC Dunedin CRI-2010-412-16, 5 August 2010.
7 At [7].
8 R v Palmer [2007] NZCA 350 at [8].
9 Butterfield v R [1997] 3 NZLR 760 (HC).
10 R v Nakhla (No 2) [1974] 1 NZLR 453 (CA).
Was there a fundamental error in procedure?
[20] On that basis the first issue is whether Baragwanath J was mistaken and, if so, whether that constituted a fundamental error in procedure. From my reading of the sentencing decisions both the District Court Judge and Baragwanath J proceeded on the basis that Mr Romanov was serving a sentence of imprisonment of 13 years, nine months rather than the 16 years, nine months he was in fact subject to. It is apparent from the judgment, read as a whole and in context, that the Judge intended the sentence he imposed to be cumulative on the existing sentence. But because the Judge was mistaken about the length of the existing sentence, and was also mistaken in believing that the sentence had been served, the sentence imposed did not achieve that.
[21] The fact the Judge was mistaken on such fundamental issues satisfies the requirement for a fundamental error in procedure.
Is there an effective alternative remedy?
[22] The next issue is whether there is any effective alternative remedy. I accept Ms Longdill’s submission that there is no effective alternative remedy to the police here because, for the reasons observed by Miller J in Smaill, the right of appeal to the Court of Appeal only exists on a question of law. The problem with the present case is, as in Smaill, the error was as to an essential fact, namely the length of sentence Mr Romanov was serving. For that reason there was no effective right even to seek leave to appeal.
[23] Although the respondent’s written submissions suggest s 77 Summary Proceedings Act 1957 was available, that section relates to the District Court, not the High Court and only applies, either to permit the amendment of a sentence the Court had no jurisdiction to make, or in circumstances where the Court failed to impose a sentence it was required to impose, neither of which situations apply here. Section
372 of the Crimes Act 1961 is to the same effect for sentences imposed in the High
Court. But again it has no application because the sentence imposed by
Baragwanath J was on appeal. Further, and in any event, there are limitations on the scope of the section, as noted by the Court of Appeal in R v Shepherd.11
Miscarriage
[24] The last and final consideration is whether a substantial miscarriage of justice would result in leaving the matter as it lies. Ms Longdill submitted strongly that it would because to leave the sentence as it is would be contrary to the intentions of the Judge and the system of justice would essentially have miscarried to the benefit of the respondent.
[25] However, there are other considerations to take into account when addressing whether a miscarriage of justice arises in the present case. In my judgment the following factors are particularly relevant:
The passage of time
[26] Almost seven years has passed since the sentence was imposed. During that time decisions concerning Mr Romanov’s eligibility for parole have been made including a decision to parole him in 2012. Also, Baragwanath J has retired. It would have been preferable for this application to have been heard by him.
Knowledge
[27] Ms Longdill conceded that by 2009 the Department of Corrections was aware of the mistake. In an addendum (issued on 27 April 2009) to an earlier review decision the Parole Board expressly acknowledged the High Court’s sentence of two years was imposed cumulatively on the sentence of 13 years, nine months, but also recorded Mr Romanov was serving a sentence of 16 years, nine months. To counter that Ms Longdill submitted the police only became aware as a consequence of a
habeas corpus application by Mr Romanov earlier this year.12 She submitted the
application for recall had been issued promptly thereafter. However, the police were obviously represented at the appeal hearing before Baragwanath J. They and counsel
were, or should have been, aware of the total sentence imposed by Potter J on Mr
11 R v Shepherd [1990] 3 NZLR 39 (CA) at 41.
12 Romanov v Chief Executive of the Department of Corrections [2014] NZHC 10.
Romanov so the police, through their counsel, should have been alert and aware to the mistake that Baragwanath J had made at the time.
Was Baragwanath J deliberately misled?
[28] Ms Longdill submitted Baragwanath J was misled. I accept that if the Court had been deliberately misled that would provide a strong reason for this Court to re- engage with the matter even given the passage of time.
[29] Ms Longdill referred to the habeas corpus application earlier this year before
Katz J in which the Judge recorded:
[15] Mr Romanov argued before me that the Parole Board’s reasoning was erroneous, because Baragwanath J’s 2007 sentence, although expressed to be cumulative in his Honour’s sentencing notes, is not in fact a cumulative sentence. That is because the end sentence did not in fact increase his pre- CD sentence. This was due, it would seem, to his Honour having erroneously believed that the original sentence was 13 years nine months rather than 16 years nine months. I note for completeness that Mr Romanov does not accept that there was any such calculation error on the part of the Judge. Rather, he says that the Judge’s approach was deliberate and taken at Mr Romanov’s specific request.
She submitted that showed Mr Romanov deliberately misled Baragwanath J at the appeal hearing. However, Mr Romanov was represented by counsel, Mr Minchin, before Baragwanath J. There is no suggestion Mr Minchin deliberately misled the Court. No evidence has been obtained or even sought from Mr Minchin as how or why the Court proceeded on the basis the 13 years, nine month sentence was the operative one. I am not able to accept the submission that the rather opportunistic adoption of the position by Mr Romanov in his application for habeas corpus earlier this year is sufficient evidence that there was a deliberate attempt to mislead Baragwanath J in 2007.
[30] Certainly Baragwanath J was mistaken, but given the passage of time and on the information available to the Court at this time I am not prepared to find that he was deliberately misled.
Finality
[31] The principle of finality of litigation and judgments is particularly relevant. The principle was stated in R v Smith:13
[48] The need for finality is based upon the policies identified by
Lord Wilberforce in The Ampthill Peerage [1977] AC 547; [1976] 2 All ER
411, at p 569; p 418 as “the interests of peace, certainty and security”:
“For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time: so the law still more exceptionally allows judgments to be attacked on the ground of fraud: so limitation periods may, exceptionally, be extended. But these are exceptions to a general rule of high public importance, and as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved.”
Lord Simon of Glaisdale at p 576; p 423 made the same point:
“But the fundamental principle that it is in society’s interest that there should be some end to litigation is seen most characteristically in the recognition by our law – by every system of law – of the finality of a judgment. If the judgment has been obtained by fraud or collusion it is considered as a nullity and the law provides machinery whereby its nullity can be so established. If the judgment has been obtained in consequence of some procedural irregularity, it may sometimes be set aside. But such exceptional cases apart, the judgment must be allowed to conclude the matter.”
[32] The principle is important. It applies here. I do not consider this case to be
“exceptional” as is discussed in the above authorities.
Is re-sentencing a realistic option at this time?
[33] Of less significance, but still relevant, there is also an issue as to how the Court could at this time properly address or impose an appropriate cumulative sentence for the offending in 2006 in light of considerations that would have been relevant at that time.
Result – application to recall Baragwanath J’s sentence
[34] For all those reasons the Crown application to recall the judgment of
Baragwanath J must be and is dismissed.
APPLICATION BY MR ROMANOV TO APPEAL OUT OF TIME
Background
[35] In addition to the background set out above, the following factors are relevant
to Mr Romanov’s application for leave to appeal the decision to recall him.
[36] On 23 September 2009 an application for an order under s 107 of the Parole Act 2002 that Mr Romanov not be released on parole before the applicable release date was made. The order was made on 15 March 2010.
[37] 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.
[38] 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.
[39] In a decision delivered on 14 August 2013 the Parole Board made a final recall order pursuant to s 66 of the Parole Act.
[40] Mr Romanov sought to review that 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.
[41] Mr Romanov then filed an appeal document with this Court. When the matter came before Simon France J on 25 March 2014 he directed that the document completed by Mr Romanov was to be treated as an application under s 68(1) of the
Parole Act to extend time in which to appeal against the final recall order and, if an extension of time was granted, as an appeal under that section.
[42] Since lodging the application for appeal on his own behalf Mr Romanov has had the benefit of advice from Mr Heaslip and Mr Duff. Mr Duff again adopted Mr Heaslip’s written submissions. The Court has also been assisted by Mr Gorringe’s submissions as amicus.
The application to extend the time for appeal
[43] The Court may extend the time for an appeal against a recall decision.14 The notice of appeal document was filed approximately two months late. The Parole Board reasonably prefers to deal with the matter on the merits. As Mr Romanov was initially representing himself I extend the time for him to bring the appeal.
Mr Romanov’s argument
[44] Essentially the grounds advanced in support of the application for leave to appeal and the substantive appeal are:
(a) that the Parole Board lacked jurisdiction to make the final recall order on 14 August 2013; and
(b) there was no substantive basis for recall.
Did the Parole Board have jurisdiction to make the final recall order?
[45] The appeal raises the following concepts: sentence commencement date; parole eligibility date; final release date; and sentence expiry date. In Mr Romanov’s case the following dates initially applied to him:
Sentence commencement date: 24 September 1999;
Parole eligibility date: 16 October 2008 (two-thirds of 13 years, nine months), plus one-third of three years, less 403 days (ss 89 and
92 of the Criminal Justice Act) (CJA);
Final release date: 16 October 2009 (two-third of 13 years, nine months)
plus two-thirds of three years, less 403 days (ss 90 and
92, CJA);
Sentence expiry date: 16 May 2015 (13 years, nine months plus three years, less 403 days (s 92 CJA).
[46] Those dates were then extended by the time Mr Romanov was at large between the date of his escape on 1 February 2006 and his recapture on 27 February
2006. The dates as adjusted are:
Parole eligibility date 10 November 2008; Final release date: 10 November 2009; Sentence expiry date: 10 June 2015.
[47] In its recall decision of 14 August 2013, the Board referred to the submission made on Mr Romanov’s behalf that the application under s 107 of the Parole Act had not been made within time. It then noted that Ms Longdill had countered that by referring to s 75(2) of the Parole Act, and that Mr Romanov’s sentence release date was accordingly 11 March 2015 (three months before the sentence expiry date).
[48] For Mr Romanov it is submitted that s 75 of the Parole Act only relates to sentences imposed after the Parole Act came into force on 30 June 2002. The sentence imposed by Potter J was a pre-cd sentence.15 As the sentence imposed by Baragwanath J in 2006 effectively left the sentences imposed by Potter J undisturbed, the administration of the earlier pre-cd sentence falls to be determined under the provisions of the CJA rather than the Parole Act. By the time the
application under s 107 of the Parole Act was made on 23 September 2009 two- thirds of the 13 year nine months had elapsed. Mr Romanov argues that by that time the lead sentence had, in terms of the CJA, “ceased to run”. Mr Romanov submits that he was therefore entitled to release.
[49] While noting that in its recall decision the Parole Board recorded his counsel acknowledged “the force of the submissions made by counsel for [the Board]”, [in relation to s 75], Mr Romanov submits no concession was actually made.
[50] Mr Gorringe submitted there may be an argument that the aggravated robbery sentences imposed in 1999 by Potter J are not administratively governed by the Parole Act but by the CJA so that the recall provisions of the Parole Act do not apply.
[51] Mr Gorringe also suggested Mr Romanov could perhaps argue that, in all the circumstances and for the purposes of s 107, the relevant final release date was that for specified offences only, namely the aggravated robbery convictions and that date was reached in 2007 when two-thirds of the 13 year, nine month sentence expired. The application by the Corrections Department for an order under s 107 was filed too late. In the legal sense the final release date for the only offence which mattered had passed well before the application was made in September 2009.
[52] Mr Gorringe submitted that s 75 of the Parole Act did not seem to apply or was at least unnecessary. There was no need for a notional single sentence to determine the release date because that was fixed by ss 103 and 104 of the Parole Act. A final release date prisoner must be released on two-thirds of the sentence unless an order for continued extension is made under s 107.
[53] However, I consider both the Board, in its reference to s 107 and s 75, and the submissions directed at the reference to the application under s 107 miss the point. Although the s 107 order was made on 15 March 2010, Mr Romanov was ultimately released on 7 March 2012. As the heading of the decision under appeal records, the application before the Board was an application for final recall under s 60(2) of the Parole Act. The only decision of the Board relevant to this appeal is the final recall
order under s 66 of the Parole Act. In Mr Romanov’s case the pre-conditions for such an order were:
(a) that he was subject to a determinate sentence, i.e. a sentence of imprisonment for a fixed term; and
(b)that at the time of the recall application, namely 29 May 2013, he had not reached his statutory release date; and
(c) that he was on parole.
[54] Mr Romanov was subject to a determinate sentence and was on parole. The only remaining issue is whether his statutory release date had been reached by 29
May 2013. Statutory release date is defined in the Parole Act as:
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)
[55] Section 17 in turn provides:
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.
[56] Release date in turn is defined in this case as the date on which Mr Romanov ceased to be liable to be recalled (see ss 86 and 87).
[57] Section 87 provides for the release dates of a pre-cd sentence. The release date of a long-term determinate pre-cd sentence is, pursuant to s 87(2), the date that is three months before the sentence expiry date. Sentence expiry date is the date on which Mr Romanov would have served the full term of the sentence.
[58] It follows that the sentence expiry date is the crucial date in this case. It is the date on which Mr Romanov will have served his full term and will therefore no longer be subject to recall.
[59] It is clear that the relevant provisions of the Parole Act apply to pre-cd sentences: s 8 Parole Act.16 However, the provisions of parts 4 and 6 of the CJA are incorporated by s 87(2) of the Parole Act. In the case of a pre-cd sentence s 83 of the Parole Act provides the sentence expiry date is the date, determined under parts 4 and 6 of the CJA, on which the sentence expires.
[60] Sentence expiry date is defined in the CJA as:
Sentence expiry date, in relation to a determinate sentence, means the date on which the term of the sentence imposed by the court ends.
[61] Section 92 of the CJA provides for the calculation of final release dates and sentence expiry dates where an offender is subject to cumulative sentences of imprisonment, as Mr Romanov is in this case. Section 92(5) and (6) are directly applicable to the sentence expiry date:
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.
(3) The date on which an offender who is subject to cumulative sentences of imprisonment is eligible for parole under section 89 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 date on which the offender becomes eligible for parole in accordance with section 89 of this Act, or, in respect of any sentence where there is no such parole eligibility date, the final release date for that sentence; and
16 Morgan v Superintendent, Rimutaka Prison (2005) NZSC 26 at [6]
(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.
(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.
(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.
(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.
[62] By following the above rather tortuous chain of statutory links the answer to Mr Romanov’s challenge to jurisdiction for the order for final recall emerges. Mr Romanov is subject to a cumulative sentence. The longest terms of the links in that sentence are 13 years, nine months and three years, in total 16 years, nine months.
[63] The sentence imposed by Baragwanath J on appeal on 22 November 2007 did not affect the original sentence expiry date of 10 June 2015 which applied to the cumulative sentence of 16 years and nine month imprisonment imposed by Potter J on 24 September 1999. The 16 year, nine month sentence, whether considered as a whole or in its component parts, is a long-term determinate sentence in terms of s 87 of the Parole Act.
[64] The sentence expiry date of 10 June 2015 and the consequent release date have still not yet been reached. Mr Romanov remained subject to recall when the application for recall was made under s 60.
[65] There is thus strictly no need to consider whether the application under s 107 was made in time or not. Mr Romanov was subject to an order for final recall if the Board was satisfied on reasonable grounds that one or more of the grounds for recall in s 61 of the Parole Act applied.
[66] However, given all parties addressed submissions to the s 107 issue I turn briefly to consider it.
[67] The reference to final release date in s 107 leads in the case of a pre-cd sentence to s 104(1) of the Parole Act which provides that an offender subject to a long-term pre-cd sentence must be released from detention on his final release date. Section 105(1) of the Parole Act confirms that the final release date is to be determined in accordance with s 91 CJA. Section 91 CJA provides for the Secretary (Chief Executive) to determine the final release date in accordance with ss 90 and 92 of the CJA. Final release date is defined in the CJA as:
Final release date, in relation to a full-time custodial sentence, means the date specified in section 90 of this Act beyond which (subject to any liability for recall under Part 6 of this Act) an offender cannot be detained in a [prison] in respect of that sentence.
[68] As relevant s 90 of the CJA provides:
90 Final release
(1) Subject to sections 33(3) and 34(3) of the Penal Institutions Act
1954, to [[section 47]] of the Misuse of Drugs Amendment Act
1978, and to subsections (2), (3), and (4) of this section, 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:
…
(4) Subject to sections 33(3) and 34(3) of the Penal Institutions Act
1954, where an offender has been recalled or a direction for the return of an offender has been made under section 94(6) of this Act, the offender shall be released not later than 3 months before the sentence expiry date.
[69] Having regard to s 90 and the effect of s 92(3), the final release date of the cumulative sentences 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.
[70] Mr Romanov therefore was not eligible for final release at the time the application under s 107 was made.
[71] 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 substantive issues
[72] At the time it made the order for recall the Board had before it a job sheet and summary of facts from the New Zealand Police setting out the evidence implicating Mr Romanov in the burglary of the Ducati motorcycle. The job sheet also noted that it appeared Mr Romanov was not residing at the approved address. The Parole Board was satisfied there were reasonable grounds for concluding Mr Romanov had committed an offence punishable by imprisonment. Section 61(c) was satisfied.
[73] In coming to that view the Board took into account the planned nature of the burglary, which also raised community safety considerations (a factor to be considered under s 61(a)). The Board was not satisfied those considerations could be sufficiently mitigated by further possible release conditions or Court imposed bail conditions.
[74] Mr Romanov emphasises that he was entitled to be presumed innocent of the charge and as such the Parole Board erred in considering that fact when ordering the recall.
[75] The answer to Mr Romanov’s point is found in the decision of Shortland v The Parole Board.17 Section 66(1) of the Parole Act states that the Board and this Court on appeal need only to be “satisfied on reasonable grounds” that one of the grounds in s 61 is made out. As confirmed in the decision of Maxwell v The Parole Board18 and provided for in s 61(c) of the Parole Act one ground for recall is that the offender has committed an offence punishable by imprisonment (whether or not this has resulted in a conviction). The Parole Board may receive and take into consideration whatever information it thinks fit whether or not the information would be admissible as evidence in a Court of law.19
[76] In terms of the relevant material before the Board that information included:
· the balaclava located at the scene of the crime contained Mr Romanov’s
DNA;
·a search warrant executed at Mr Romanov’s home address uncovered recently purchased tyres which only fitted a Ducati motorcycle;
·the vendor of the tyres confirmed they were purchased by a man known to them as Ricardo, a Christian name used by Mr Romanov;
· the search also uncovered a piece of paper containing the stolen motorcycle’s
registration number;
·the IP address linked to Mr Romanov’s home address had been used to search for details on the motorcycle in question; and
17 Shortland v The Parole Board [2008] BCL 252.
18 Maxwell v The Parole Board [2009] NZAR 88.
19 Parole Act 2002, s 117.
·when interviewed by the New Zealand Herald in March 2012 Mr Romanov told the reporter he owned a Ducati motorcycle. He had an interest in such motorcycles.
[77] In the circumstances it was open to the Board to be satisfied on reasonable grounds that Mr Romanov had committed an offence punishable by imprisonment and that he posed a risk to the community. The offending that the Board was satisfied Mr Romanov was involved in was a theft of a valuable item, not dissimilar to the lead offending for which he was sentenced by Potter J in 1999.
[78] Section 70(2) confirms that on an appeal against a final recall order the Court may:
(a) confirm the order; or
(b) quash the order; or
(c) refer the matter back.
[79] Although I consider the Board fell into error in discussing s 107 and s 75, when there was no need to, the Board’s decision was to issue a final recall order. For the reasons given above there was jurisdiction for that order, and there was sufficient information before the Board for it to be satisfied the final recall order should be made.
Result – appeal against final recall order
[80] Mr Romanov’s appeal is dismissed. The final recall order is confirmed.
Venning J
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