Police v Maipiara (aka Murphy) - [2012] NZHC 690

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2011-488-83 [2012] NZHC 690

BETWEEN THE POLICE Appellant

ANDPOUTAMA MAIPIARA (AKA) MURPHY Respondent

Hearing: 20 February 2012

Appearances: M Smith and M Jarman-Taylor for appellant
A B Fairley for respondent

Judgment: 16 April 2012

JUDGMENT OF ALLAN J

Solicitors:
Crown Solicitor Whangarei
Thomson Wilson, Whangarei

POLICE V MAIPIARA (AKA) MURPHY HC WHA CRI 2011-488-83 [16 April 2012]

[1] In this appeal, the appellant raises an issue of some practical importance. It concerns the ambit of s 86A of the Sentencing Act 2002 (the Act), which forms part of the so-called three strikes sentencing regime.

[2] The respondent pleaded guilty to a charge of wounding with reckless disregard for the safety of others, along with other offences which are not material for present purposes. Judge McDonald, sitting in the Whangarei District Court, declined to give a first warning under the three strikes regime, because he considered that the offence to which the respondent had pleaded guilty was not caught by s 86A. The Court is told that there appears to be a divergence of opinion at District Court level as to whether the three strikes regime applies to offenders who are sentenced for offences which are not specifically mentioned by name in s 86A, but which nevertheless fall within the enumerated sections of the Crimes Act 1961 appearing in the s 86A list.

[3] The appellant’s contention on appeal is that a first warning ought to have been given to the respondent in terms of s 86B of the Act, and that the matter ought to be remitted to the District Court so that the warning can be given.

Legislative background

[4] The three strikes regime requires the Court, upon a conviction for a qualifying offence, to warn the offender of the consequences should he or she subsequently be convicted of a further serious offence. A second offence requires the Court to give a different warning as to the increasingly severe consequences of re-offending, which include parole restrictions and the removal of certain sentencing discretions.

[5] Upon entering a first conviction for a serious violent offence (a stage-one offence), the Court must warn the offender of the consequences should he or she be
convicted of a further serious violent offence.1 No particular form of words is

1 Sentencing Act 2002, s 86B(1).

required.2 The offender must simply be warned that, if convicted of another serious violent offence on a later occasion, and sentenced to a determinate sentence of imprisonment, he or she will be required to serve the full sentence imposed. That is, there will be no possibility of parole (if the sentence is more than two years), or early release (if the sentence is two years or less).3 The offender must also be given a
notice setting out these consequences in writing.4

[6] Upon entering a second conviction for a serious violent offence (a “stage-two offence”), the Court must, in addition to imposing a sentence in accordance with the regime,…

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.

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Details

Case: [2012] NZHC 690
Decision Date: 16 April 2012

CaseChat Overview and Summary

In Police v Maipiara, the High Court considered whether an offender should receive a first warning under the three strikes sentencing regime for an offence not specifically mentioned by name in the relevant statute. The respondent, who had pleaded guilty to wounding with reckless disregard for the safety of others, argued that the warning should have been given. The District Court had declined to give the warning, considering that the offence was not caught by the three strikes regime. The High Court found that the District Court's interpretation of the relevant statute was incorrect, and that the warning should have been given. The Court held that the shorthand references accompanying the section numbers in the statute were not intended to limit the scope of the regime. Instead, they were meant to act as an aide memoire linking the general subject matter of the section with the section number itself. The Court concluded that to interpret those references as limiting the scope of the regime would lead to perverse consequences and introduce ambiguity where none ought to exist. Accordingly, the Court allowed the appeal and remitted the matter to the District Court for resentencing so that the statutory warning for a stage one offence could be given.

Orders