Muraahi v The Queen - [2021] NZSC 116

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 71/2021
[2021] NZSC 116

BETWEEN	BENNY MILES MURAAHI Applicant
AND	THE QUEEN Respondent

Court:	William Young, Glazebrook and O’Regan JJ
Counsel:	I A Jayanandan for Applicant M L Wong for Respondent
Judgment:	13 September 2021

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Under the three strikes regime, the first time a person is convicted of a “serious violent offence”[1] (a stage-1 offence) the offender is sentenced in the ordinary way but receives a “first warning” about the operation of the regime.[2] If the offender is then convicted of another serious violent offence, that offence counts for the purposes of the regime as a stage‑2 offence. For offending other than murder, the offender is sentenced in the ordinary way, but if the judge imposes a long-term determinate sentence of imprisonment, the judge must order that the offender serve the full term without parole.[3] The judge must also give a “final warning” about the consequences of committing a further qualifying offence.[4] If the offender then commits a further serious violent offence (a stage‑3 offence) the High Court must sentence the offender to the maximum term of imprisonment prescribed for the offence.[5] The warnings referred to are given orally but must be “recorded”.[6]
[1]As defined in s 86A of the Sentencing Act 2002.
[2]Section 86B.
[3]Section 86C(4)(a).
[4]Section 86C(1).
[5]Section 86D(2). If the offender is convicted of murder as a stage‑2 or stage‑3 offence, s 86E applies instead.
[6]Sections 86B(1)–(3) and 86C(1)–(3).
Sections 86B(4) and 86C(7) of the Sentencing Act require that a written notice setting out the consequences of committing further serious violent offences (a written notice of consequences) must be served on an offender convicted of a stage‑1 or stage‑2 offence. Those sections do not explicitly provide that liability to second and third strike consequences only applies where a written notice of consequences was given in respect of relevant earlier stage-1 or stage-2 offending.
On 15 October 2010, the applicant was sentenced to three and a half years’ imprisonment for aggravated robbery committed in August 2010, a qualifying serious violent offence.[7]
[7]R v Muraahi DC Manukau CRI-2009-092-20647, 15 October 2010.
On his release, he committed a further aggravated robbery. On 19 November 2014, he was sentenced to four years’ imprisonment to be served without parole.[8] The four‑year sentence represented a discount to what he would, but for the three strikes regime, have been sentenced to; this to take into account that he would not be eligible for parole.[9]
[8]R v Muraahi DC Manukau CRI-2014-092-4111, 19 November 2014.
[9]At [19].
On his release from this sentence, he committed two more aggravated robberies. When sentencing him in the High Court, Peters J treated him as a stage‑1 offender.[10] She concluded that second and third strike consequences applied only if the earlier strike offences had resulted in both a recorded oral warning and service of the written notice of consequences.[11] She found…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Muraahi v The Queen

Details

AGLC: Muraahi v The Queen [2021] NZSC 116
Case: [2021] NZSC 116
Decision Date: 13 September 2021

CaseChat Overview and Summary

Benny Miles Muraahi applied to the Supreme Court of New Zealand for leave to appeal against a decision of the Court of Appeal, which had dismissed his appeal against his sentence. The applicant had been convicted of multiple serious violent offences, and the Court of Appeal had found that he was a third strike offender under the three strikes regime, but chose not to resentence him. Muraahi sought leave to appeal on the basis that second and third strike consequences apply only where written notices of consequences were provided, in addition to the recorded oral warnings, and that there was insufficient evidence for the Court of Appeal to conclude that he had received both warnings on both occasions.

The legal issues before the court were whether the Court of Appeal was correct in its interpretation of the Sentencing Act 2002, and whether the evidential issue raised by Muraahi warranted reconsideration by the Supreme Court. The court considered that the Court of Appeal's analysis of the legislative scheme seemed convincing and that the evidential issue did not raise matters warranting reconsideration in the Supreme Court. The court concluded that it was not necessary in the interests of justice to hear the proposed appeal.

The Supreme Court dismissed Muraahi's application for leave to appeal, finding that the Court of Appeal's decision was correct, and that there had been no miscarriage of justice. The Supreme Court did not see the point of law as arising given the findings of fact of the Court of Appeal and the fact that Muraahi was not resentenced. The court noted that oral warnings were given and recorded, and written notices of consequences were served, in respect of his stage-1 and stage-2 convictions, and that his sentence as a first strike offender in respect of the last set of offences was not interfered with by the Court of Appeal.

Orders