R v Muraahi - [2021] NZCA 214

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA170/2020
[2021] NZCA 214

BETWEEN	THE QUEEN Appellant
AND	BENNY MILES MURAAHI Respondent

Hearing:	30 March 2021 (further submissions received 17 May 2021)
Court:	French, Brown and Clifford JJ
Counsel:	C A Brook and R K Thomson for Appellant J H M Eaton QC, I Jayanandan and H Kim for Respondent
Judgment:	28 May 2021 at 9 am

JUDGMENT OF THE COURT

AThe application for leave to appeal a question of law under s 296 of the Criminal Procedure Act 2011 is granted.
BWe answer the questions of law submitted for determination as follows:
(1) Does the giving of a warning under s 86B and s 86C of the Sentencing Act 2002 require only an oral warning which is then duly recorded?
Answer: Yes.
(2) If so was the Judge’s decision to treat Mr Muraahi as a stage-1 offender under s 86B of the Sentencing Act 2002 made in error?
Answer: Yes.
C We decline to order a re-sentencing of the respondent.

______________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

The sentencing regime known colloquially as “three strikes” involves the giving of warnings and escalating consequences for repeat violent offenders under ss 86B to 86D of the Sentencing Act 2002.
The warnings are fundamental to the operation of the regime and this case raises issues relating to how the warnings are to be given and proved.
In a High Court sentencing, Peters J held that both an oral warning and a formal written notice were required before a warning was operative.[1] The Judge further held there was insufficient evidence of both those requirements having been satisfied in this case and therefore she did not have jurisdiction to sentence Mr Muraahi on the basis he was subject to previous warnings.[2]
[1]R v Muraahi [2020] NZHC 346 [High Court decision] at [18].
[2]At [35].
The Crown wishes to challenge those rulings and seeks leave to appeal on two questions of law under s 296(3)(a) of the Criminal Procedure Act 2011.
The questions of law the Crown initially proposed for determination were:
(a)Did the learned High Court Judge err in law by determining that a “record of first warning” and a “record of final warning” under s 86A of the Sentencing Act require both an oral warning and written notice to be given?
(b)As a result, was the Judge’s decision to treat Mr Muraahi as a stage-1 offender under s 86B of the Sentencing Act made in error?
At the hearing, it became apparent that the first question as worded was too narrow because it used statutorily defined terms. We suggested that to capture the key issue the questions should be re-framed in the following way:
Does the giving of a warning under s 86B or s 86C of the Sentencing Act 2002 require only an oral warning which is then duly recorded?
If so was the Judge’s decision to treat Mr Muraahi as a stage-1…

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 R v Muraahi

Details

AGLC: R v Muraahi [2021] NZCA 214
Case: [2021] NZCA 214
Decision Date: 28 May 2021 at 9 am

CaseChat Overview and Summary

This case involved an appeal by the Crown against a decision of the High Court in sentencing Benny Miles Muraahi. The High Court held that the defendant was not subject to the “three strikes” regime and should be sentenced as a stage-1 offender. The Court of Appeal held that the High Court was mistaken. In particular, the Court held that only an oral warning need be given before an offender is treated as a stage-2 or stage-3 offender under the Sentencing Act. The Court accordingly held that Mr Muraahi was subject to the three strikes regime and should be sentenced as a stage-3 offender. The Court did not, however, order a re-sentencing of Mr Muraahi.

The Court of Appeal found that the giving of a warning under s 86B or s 86C of the Sentencing Act 2002 requires only an oral warning which is then duly recorded. The Court held that the High Court’s finding that both an oral warning and a written notice were required before a warning was operative was incorrect. The Court further held that the Judge’s decision to treat Mr Muraahi as a stage-1 offender under s 86B of the Sentencing Act 2002 was made in error. The Court declined to order a re-sentencing of the respondent.

Orders