BENNY MILES MURAAHI v R [2021] NZSC 116

BENNY MILES MURAAHI v R [2021] NZSC 116 [13 September 2021]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 71/2021[2021] NZSC 116BETWEEN BENNY MILES MURAAHIApplicantAND THE QUEENRespondentCourt: William Young, Glazebrook and O'Regan JJCounsel: I A Jayanandan for ApplicantM L Wong for RespondentJudgment: 13 September 2021JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] Under the three strikes regime, the first time a person is convicted of a "seriousviolent offence"1 (a stage-1 offence) the offender is sentenced in the ordinary way butreceives a "first warning" about the operation of the regime.2 If the offender is thenconvicted of another serious violent offence, that offence counts for the purposes ofthe regime as a stage-2 offence. For offending other than murder, the offender issentenced in the ordinary way, but if the judge imposes a long-term determinatesentence of imprisonment, the judge must order that the offender serve the full termwithout parole.3 The judge must also give a "final warning" about the consequencesof committing a further qualifying offence.4 If the offender then commits a further1 As defined in s 86A of the Sentencing Act 2002.2 Section 86B.3 Section 86C(4)(a).4 Section 86C(1).serious violent offence (a stage-3 offence) the High Court must sentence the offenderto the maximum term of imprisonment prescribed for the offence.5 The warningsreferred to are given orally but must be "recorded".6[2] Sections 86B(4) and 86C(7) of the Sentencing Act require that a written noticesetting out the consequences of committing further serious violent offences (a writtennotice of consequences) must be served on an offender convicted of a stage-1 orstage-2 offence. Those sections do not explicitly provide that liability to second andthird strike consequences only applies where a written notice of consequences wasgiven in respect of relevant earlier stage-1 or stage-2 offending.[3] On 15 October 2010, the applicant was sentenced to three and a half years'imprisonment for aggravated robbery committed in August 2010, a qualifying seriousviolent offence.7[4] On his release, he committed a further aggravated robbery. On 19 November2014, he was sentenced to four years' imprisonment to be served without parole.8 Thefour-year sentence represented a discount to what he would, but for the three strikesregime, have been sentenced to; this to take into account that he would not be eligiblefor parole.9[5] On his release from this sentence, he committed two more aggravatedrobberies. When sentencing him in the High Court, Peters J treated him as a stage-1offender.10 She concluded that second and third strike consequences applied only ifthe earlier strike offences had resulted in both a recorded oral warning and service ofthe written notice of consequences.11 She found that there was insufficient evidencethat this had occurred in 2010 and 2014.125 Section 86D(2). If the offender is convicted of murder as a stage-2 or stage-3 offence, s 86Eapplies instead.6 Sections 86B(1)–(3) and 86C(1)–(3).7 R v Muraahi DC Manukau CRI-2009-092-20647, 15 October 2010.8 R v Muraahi DC Manukau CRI-2014-092-4111, 19 November 2014.9 At [19].10 R v Muraahi [2020] NZHC 346.11 At [18] and [20].12 At [35].[6] The Court of Appeal granted leave to appeal on a question of law under s 296of the Criminal Procedure Act 2011.13 Following further evidence, it concluded that:(a) An oral warning had been given by the sentencing Judge in respect ofthe 2010 conviction (and properly recorded as having been given)14 anda notice of consequences had been served on the applicant.15(b) An oral warning had been given in respect of the 2014 conviction (andproperly recorded as having been given)16 and the applicant had signeda document confirming that he had been served with a notice ofconsequences.17(c) Second and third strike consequences apply even if a written notice ofconsequences had not been served in respect of earlier stage-1 orstage-2 offending.18(d) The High Court Judge was therefore wrong not to treat the applicant asa third strike offender.19The Court, however, chose not to resentence the applicant.20[7] The applicant now seeks leave to appeal. He argues that second and third strikeconsequences apply only where, in respect of the qualifying convictions, writtennotices of consequences were provided, in addition to the recorded oral warnings. Healso argues that there was insufficient evidence for the Court of Appeal to concludethat the applicant had received both warnings on both occasions.13 R v Muraahi [2021] NZCA 214 (French, Brown and Clifford JJ) at [4] and [9].14 At [23]–[24].15 At [49]–[50].16 At [28] and [51]–[52].17 At [28].18 At [82].19 At [82].20 At [83].[8] There have been decisions holding that service of a written notice ofconsequences is necessary to trigger second and third strike consequences.21 So it maybe that the applicant's challenge to this aspect of the Court of Appeal decision isarguable, although at first blush its analysis of the legislative scheme seemsconvincing. It is, however, perfectly clear that oral warnings were given and recorded,and written notices of consequences served, in respect of his stage-1 and stage-2convictions. Further, his sentence as a first strike offender in respect of the last set ofoffences was not interfered with by the Court of Appeal. As will be apparent, we donot see the evidential issue raised by the applicant as raising issues warrantingreconsideration in this Court.[9] For the reasons given, it is not necessary in the interests of justice to hear theproposed appeal. We do not see the point of law as arising given the findings of factof the Court of Appeal and the fact that the applicant was not resentenced.22 As well,there has plainly been no miscarriage of justice.23Solicitors:Crown Law Office, Wellington for Respondent21 See R v Allen [2018] NZDC 14972, [2019] DCR 227 at [35]; R v Patel [2018] NZHC 2946 at [16];and R v King [2019] NZHC 537 at [41] and [44].22 Senior Courts Act 2016, s 74(2)(a).23 Section 74(2)(b).