ROMANOV AKA SANND v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2014] NZHC 10

ROMANOV AKA SANND v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2014] NZHC 10 [16 January 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2014-404-46[2014] NZHC 10IN THE MATTER OF THE HABEAS CORPUS ACT 2001BETWEEN RICARDO ROMANOV AKAANTHONY RICARDO SANNDApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 16 January 2014Appearances: Applicant in personA Longdill for RespondentJudgment: 16 January 2014JUDGMENT OF KATZ JThis judgment was delivered by me on 16 January 2014 at 4:30 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarSolicitors: Meredith Connell, AucklandCopy to: R Romanov, Paremoremo Correctional FacilityIntroduction[1] The applicant, Ricardo Romanov, has applied for a writ of habeas corpus pursuant to the Habeas Corpus Act 2001. Mr Romanov submitted that his current detention in prison is unlawful. The respondent opposed the application and submitted that Mr Romanov is lawfully detained pursuant to warrants of commitment issued under the Criminal Justice Act 1985, the Sentencing Act 2002 and the Summary Proceedings Act 1957.[2] Section 6 of the Habeas Corpus Act provides that an application to challengethe legality of a person's detention may be made by an application for a writ of habeas corpus. Section 14(1) provides that the onus is on the respondent to establish that the detention of the detained person is lawful. If the respondent fails to do this, the High Court must grant, as a matter of right, a writ of habeas corpus ordering the release of the detained person from detention.Factual background[3] Mr Romanov is currently remanded in custody pending trial on a charge of burglary. The warrant of commitment authorising his detention on remand was signed by Judge Hinton. His next appearance is in the Auckland District Court in November 2014.[4] Mr Romanov is also a sentenced prisoner. He was originally sentenced by Potter J on 24 September 1999 to 13 years nine months' imprisonment for the aggravated robbery of a $2 million Tissot painting from the Auckland Art Gallery, plus a cumulative term of three years for thefts of motorbikes. This resulted in an overall sentence of 16 years nine months.[5] Whilst serving this sentence, Mr Ricardo escaped custody and committed further offences, for which he was convicted in 2006. The District Court sentenced him to a cumulative term of three years imprisonment (making a total effective sentence of 19 years nine months imprisonment).[6] The applicant appealed that cumulative three year sentence to the High Court. On 22 November 2007 Baragwanath J allowed the appeal, effectively reducing the sentence for the 2006 sentences from three years to two years. At [1] of his judgment his Honour erroneously referred to Mr Romanov's existing sentence(imposed by Potter J on 24 September 1999) as being one of 13 years and nine months' imprisonment, rather than 16 years and nine months' imprisonment. HisHonour's oral judgment of 22 November 2007 then concluded as follows:All existing sentences are set aside. On the burglary charge the appellant'ssentence will be of two years. On the charge of escaping from custody 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.[7] The respondent submitted that this is an obvious error, which it intends to address through a separate application to the Court. In its view this error has no impact on the current habeas corpus application. Mr Romanov submitted that there was no error on the part of Baragwanath J and that he deliberately structured the sentence in the manner set out in his sentencing notes.[8] Mr Romanov was released on parole on 7 March 2012. On 28 May 2013 he was arrested by the police on a charge of burglary, involving the disappearance of Ducati motorcycle valued at $130,000. A final recall order was made by the Parole Board.[9] Mr Romanov opposed the recall application on jurisdictional grounds. He submitted that the Board had no jurisdiction to hear the recall application, for similar reasons to those he advanced in this application (discussed further below). TheParole Board did not accept Mr Romanov's arguments and it appears from the ParoleBoard's decision that Mr Romanov's counsel ultimately conceded that Mr Romanov was indeed subject to the Board's jurisdiction so far as the recall application was concerned, although he did not necessarily concede that Mr Romanov's correct statutory release date was 11 March 2015.[10] Mr Romanov sought a review of the Parole Board's decision in December2013. Section 67 of the Parole Act 2002 provides that an application for review is tobe made within 28 days of the decision. Mr Romanov's application was well outsidethat time requirement and no good reasons were advanced for the delay. The chairperson of the Parole Board accordingly declined to consider the review application.[11] Mr Romanov then filed this habeas corpus application.Habeas Corpus Application[12] Mr Romanov submitted that the Parole Board's decision to recall him wasunlawful and that he is therefore unlawfully detained.[13] Essentially his argument was that his original sentence of 16 years nine months was imposed by Potter J prior to the commencement date of the Parole Act2002 (generally referred to as a "pre-CD sentence"). That sentence, he submitted, expired when he had served two-thirds of it. Mr Romanov submitted that, as a result, he was no longer subject to recall after 9 April 2010. His subsequent recall by the Parole Board was therefore out of time and his detention was unlawful.[14] The Parole Board rejected this submission in their decision of 14 August 2013, on the basis that s 75(2) of the Parole Act 2002 provides that any cumulative sentence imposed (including a sentence imposed on a pre-CD sentence) forms a notional single sentence for the purposes of the Parole Act. Accordingly, MrRomanov's further offending following his escape from custody in 2006 meant that he is now serving a notional single sentence, with a statutory release date of 11 March 2015. Mr Romanov was therefore subject to recall through the operation of s 75(2) of the Parole Act.[15] Mr Romanov argued before me that the Parole Board's reasoning was erroneous, because Baragwanath J's 2007 sentence, although expressed to becumulative 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 forcompleteness that Mr Romanov does not accept that there was any such calculationerror on the part of the Judge. Rather, he says that the Judge's approach wasdeliberate and taken at Mr Romanov's specific request.Discussion[16] The sole issue before me is whether Mr Romanov is currently detained lawfully. As the Court of Appeal observed in Misiuk v Chief Executive, Department of Corrections:1We accept Ms Longdill's submission that the relevant date to consider anapplication for habeas corpus is at the date of hearing of the application. Irrespective of whether there may have been some prior deficiency in thelawfulness of the applicant's detention, if he or she is lawfully detained at the date of hearing there is not basis upon which the application may be granted.(Footnote omitted)[17] The Supreme Court confirmed the correctness of the Court of Appeal'sapproach on this issue.2[18] The Crown did not accept Mr Romanov's various arguments regarding the lawfulness of his recall by the Parole Board, but it is unnecessary to address the issue in any detail. That is because, even if I were to find in Mr Romanov's favour on the recall issue, a writ of habeas corpus still could not be issued.[19] The insurmountable obstacle faced by Mr Romanov is that he is currently lawfully detained on remand pending trial later this year on a charge of burglary. A warrant of commitment authorising his detention on remand has been signed by Judge Hinton. Mr Romanov did not challenge the lawfulness of that warrant, although he did note that there is little point in him applying for bail on the current charges, given his recall on the earlier sentences. There is some force in that submission, but it does not convert an otherwise lawful detention into an unlawful one.1 Misiuk v Chief Executive, Department of Corrections [2010] NZCA 480; [2011] 2 NZLR 114 at [25].2 Misiuk v Chief Executive, Department of Corrections [2010] NZSC 140; [2011] 2 NZLR 114 at [2].[20] It is not necessary for the Crown to prove that there are multiple groundsjustifying Mr Romanov's current detention. One is sufficient. Mr Romanov is currently lawfully detained on remand, pending trial later this year.[21] To the extent that Mr Romanov has ongoing concerns regarding the validity of his recall by the Parole Board they must be raised in another forum. Indeed I note that Ms Longdill has foreshadowed the likelihood of a separate application by theCrown relating to Mr Romanov's historic sentences. If such an application is to be pursued by either the Crown or Mr Romanov, I suggest that this be undertaken promptly. It is clearly unsatisfactory for all concerned if there is any doubt over MrRomanov's statutory release date on his existing sentences.Result[22] The respondent has established that Mr Romanov is lawfully detained in custody. I accordingly dismiss the application for habeas corpus.____________________________Katz J