BARNES v R [2018] NZCA 42

BARNES v R [2018] NZCA 42 [9 March 2018]IN THE COURT OF APPEAL OF NEW ZEALANDCA502/2017[2018] NZCA 42BETWEEN MATTHEW THOMAS BARNESAppellantAND THE QUEENRespondentHearing: 30 November 2017 (further submissions received 5 December2017)Court: Harrison, Cooper and Gilbert JJCounsel: D J More for AppellantC A Brook and J A Eng for RespondentJudgment: 9 March 2018 at 2.30 pmJUDGMENT OF THE COURTA Leave to appeal is granted under s 253(1) of the Criminal Procedure Act.B The appeal is allowed.C The sentence is remitted to the District Court. The District Court isdirected to set aside the sentence and impose another sentence that itconsiders appropriate. We recommend the sentence be reconsidered bythe original sentencing Judge if that is possible.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)Table of ContentsPara NoThe sentence [4]The stage-1 offence [9]The stage-2 offence [15]The District Court sentence [16]The High Court appeal [24]The appeal to this Court [29]Appellant's submissions [30]Respondent's submissions [34]Analysis [39]The meaning of s 86C(4) [39]Justice and proportionality [52]Inconsistency [60]Taking parole eligibility into account [65]The appropriate approach [77]Disposition [80]Result [83][1] The appellant Matthew Barnes seeks leave to appeal against the judgment ofthe High Court dismissing an appeal against sentence.1 Because his appeal is a secondappeal, Mr Barnes needs this Court's leave under s 253(1) of the Criminal ProcedureAct 2011.[2] Section 253(3) of the Criminal Procedure Act provides that this Court must notgive leave unless the appeal involves a matter of general or public importance or amiscarriage of justice may have occurred or may occur unless the appeal is heard.Because the appeal raises an important issue concerning the effect and application ofprovisions in s 86C of the Sentencing Act 2002 in relation to stage-2 offending, we aresatisfied that it involves a matter of general or public importance and the test set outin s 253(3)(a) of the Criminal Procedure Act is satisfied. We will grant leaveaccordingly.[3] The importance of the issues raised by this application has resulted in areasonably lengthy discussion. We have however endeavoured to summarise ourconclusion succinctly at [77]–[79]below.1 Barnes v R [2017] NZHC 1786.The sentence[4] Mr Barnes was one of three defendants sentenced on 10 May 2017 byJudge Crosbie in the District Court at Dunedin. All three faced a charge of aggravatedrobbery in contravention of s 235 of the Crimes Act 1961. The maximum penalty forthat offence is 14 years, and it is in the list of "serious violent offences" as set out ins 86A of the Sentencing Act.[5] Upon their conviction, Mr Barnes' co-defendants received stage-1 warnings ascontemplated by s 86B of the Sentencing Act. Mr Barnes was in a different category,because he had previously been convicted of sexual connection with a young personaged between 12 and 16 years. That is also a defined "serious violent offence" interms of s 86A of the Sentencing Act. That meant that Judge Crosbie had to treatMr Barnes as an offender who had committed a stage-2 offence, defined as:stage-2 offence means an offence that—(a) is a serious violent offence; and(b) was committed by an offender at a time when the offender had arecord of first warning (in relation to 1 or more offences) but did nothave a record of final warning[6] Section 86C of the Sentencing Act provides with respect to stage-2 offencesother than murder as follows:86C Stage-2 offence other than murder: offender given final warningand must serve full term of imprisonment(1) When, on any occasion, a court convicts an offender of 1 or morestage-2 offences other than murder, the court must at the same time—(a) warn the offender of the consequences if the offender isconvicted of any serious violent offence committed after thatwarning (whether or not that further serious violent offence isdifferent in kind from any stage-2 offence for which theoffender is being convicted); and(b) record, in relation to each stage-2 offence, that the offenderhas been warned in accordance with paragraph (a).[7] Under s 86C(4), with the imposition of a determinate sentence ofimprisonment, the Court was required to order that the offender serve the full term ofthe sentence, with the consequence in the case of a long-term sentence that thesentence will be served without parole:(4) If the sentence imposed on the offender for any stage-2 offences is adeterminate sentence of imprisonment, the court must order that theoffender serve the full term of the sentence and, accordingly, that theoffender,—(a) in the case of a long-term sentence (within the meaning of theParole Act 2002), serve the sentence without parole; and(b) in the case of a short-term sentence (within the meaning of theParole Act 2002), not be released before the expiry of thesentence.[8] On the basis of reasoning we will discuss later, the Judge arrived at a sentenceof two years seven months' imprisonment, and in accordance with his obligation unders 86C(4) directed that the sentence be served without parole.The stage-1 offence[9] The first offence committed by Mr Barnes was a "serious violent offence"within the meaning of s 86A of the Sentencing Act because it was listed in thedefinition of serious violent offences. But there was nothing "violent" about theoffence, at least in the normal and relevant sense of that word given in The OxfordEnglish Dictionary: "Senses relating to physical force. Of action, behaviour, etc.:characterized by the doing of deliberate harm or damage; carried out or accomplishedusing physical violence "2[10] Mr Barnes had been charged with sexual connection with a young personcontrary to s 134(1) of the Crimes Act 1961, an offence punishable by a maximumterm of imprisonment not exceeding 10 years. That offence may often be associatedwith actual or inherent violence. However, in this case the general nature of theoffending was not of that character. This may be ascertained from the observations ofJudge Coyle who sentenced Mr Barnes on 22 September 2014. At sentencing,the Judge said:32 Oxford English Dictionary (online ed, Oxford University Press).3 R v Barnes DC Dunedin CRI-2014-012-1060, 22 September 2014.[3] The facts of the matter are set out in the summary of facts. In essenceyou and the victim knew each other. At the time of your offending she was 14and you were 18. You considered that you were in a relationship together butthat relationship has now ended. At the start of the relationship you and shemet with her parents and talked about the fact that you wanted to be in arelationship together, but her parents had some concerns around thatrelationship given the age difference, and in particular that their daughter wasonly 14. So they made it clear to you and her and they did not want there tobe any sexual activity.[4] It appears from what is set out there was an agreement by both youand her that your relationship would continue on that basis and that therewould be no sexual relationship at all between you. In breach of that, withina number of days after that meeting with her parents had taken place, you andshe began a sexual relationship. That sexual relationship occurred on anumber of occasions over a period of time.[5] The relationship ended and in the PAC report you said to the reportwriter that the relationship with her ended when you discovered she hadembarked on a relationship with one of your friends. For reasons that are stillnot clear to me the matter came to the attention of the police and you werequestioned by the police. Initially you denied having been in a sexualrelationship and initially you denied that you knew how young she was.[11] In assessing the sentence to be imposed, the Judge stressed the need fordeterrence, referring to the immaturity of the complainant and the fact that Mr Barneswas in his "late teens".4 He thought the offending was aggravated by the number ofoccasions on which sexual activity had occurred, and by abuse of trust.5 The trustabused was that of the complainant's parents. There was no suggestion of a breach ofthe complainant's trust.[12] Judge Coyle said he was "entirely satisfied" that a sentence of imprisonmentwould not be appropriate.6 He described Mr Barnes as a young man of otherwise goodcharacter who had made some bad choices. He observed:7This Court has many people who appear before it who in sentencing the Courthas an enormous amount of concern as to whether they will see them backagain, particularly in relation to sexual offending. You do not fit in thatcategory at all.[13] The final sentence imposed was home detention for a period of five monthsand 200 hours' community work. The home detention was subject to conditions that4 At [12]–[13].5 At [13].6 At [19].7 At [21].Mr Barnes not consume alcohol and that he attend and complete counselling ortreatment if directed by the probation officer, including counselling or treatment toaddress the use of alcohol. The Judge gave a stage-1 warning as required by thestatute.[14] It appears that the sentence of home detention was not able to be completedbecause of the deterioration of Mr Barnes' relationship with his mother at whoseaddress he was serving the sentence. Judge Crosbie said that "poor physical andmental health" had undermined compliance with the original sentence.8 The sentencewas subsequently cancelled, and a term of eight months' imprisonment substituted.For a first offender, this was a stern outcome.The stage-2 offence[15] The stage-2 offence was of a completely different character. Mr Barnespleaded guilty to a charge of aggravated robbery. The facts were succinctlysummarised by Gendall J in the judgment now subject to appeal. The Judge said:9[4] Some brief background facts relating to the aggravated robberyoffending here are useful. At about 11:20 p.m. in the evening on 4 February2016, the victim was walking home from his work (as a security guard) onPrinces Street in Dunedin. He was confronted by the appellant, who it seemswas highly intoxicated, and three associates: Messrs Robinson, Aitkenheadand HL.[5] Mr Aitkenhead asked the victim if he had any cigarettes to which thevictim replied he did not. The victim tried to move on, but Mr Aitkenheadblocked his path. All four offenders then surrounded the victim and demandedthat he empty his pockets. The victim initially refused, but was shoved by oneof the offenders. He eventually dropped his phone and other items he had withhim. Mr Aitkenhead told the victim he had five seconds to run away and thevictim fled.[6] The appellant, Mr Aitkenhead and HL pursued the victim. He waspulled to the ground and once on the ground he was repeatedly kicked andpunched by the appellant and HL. The assault ceased when Mr Aitkenheadtold them to stop and stepped between them and the victim. Then, for a secondtime, the victim was told in a bullying and menacing way that he had fiveseconds to run away. Mr Aitkenhead started counting down from five and thevictim ran from the scene to escape.8 R v Aitkenhead [2017] NZDC 9803, at [24].9 Barnes v R, above n 1.[7] As a result of the offending, the victim was taken to hospital sufferingfrom swelling and bruising to his face, neck and back. He has however alsosuffered emotionally and psychologically from the offending and feelsanxious at night or when he is alone. He finds it difficult to trust people andexperiences heightened anxiety.The District Court sentence[16] One of the four offenders was dealt with in the Youth Court. Mr Barnes wassentenced with the two other defendants.10 Mr Barnes and Mr Robinson pleaded guiltynot long before the scheduled commencement of the trial. The third defendant,Mr Aitkenhead, pleaded guilty on the morning of the hearing.[17] The Judge took a starting point for the offending of two years and four monthsin the case of both Mr Aitkenhead and Mr Robinson. He allowed Mr Aitkenhead adiscount of five per cent in respect of the guilty plea, and five per cent for remorse andan offer to participate in restorative justice. These discounts totalling 10 per centresulted in an end sentence of two years one month's imprisonment.[18] In the case of Mr Robinson, the same starting point was taken for the robbery.However, the defendant had been on bail at the time he committed other offences forwhich he was also being sentenced (possession of an offensive weapon anddisorderly behaviour likely to cause violence). He also had previous convictions thatjustified an uplift. The Judge thought that a sentence of two years and 10 monthswould be justified before taking into account mitigating considerations.He considered that there should be a discount for the guilty plea and remorse of 15 percent, which he rounded to five months to arrive at a final sentence of two years andfive months' imprisonment. That sentence, imposed on the aggravated robbery, wasto be served concurrently with a sentence of four months' imprisonment in respect ofthe charge of possession of an offensive weapon.[19] In sentencing Mr Barnes, the Judge noted the Crown's submission that in hiscase the offending was aggravated by the fact that he had repeatedly kicked andpunched the victim as he lay on the ground. He considered a sentence of three yearswould be appropriate before taking into account mitigating circumstances. He decided10 R v Aitkenhead, above n 8.not to give an uplift for previous convictions, on the basis that the entire sentence(without parole) would have to be served because this was a stage-2 offence.11 He thenallowed a 10 per cent reduction for the late plea of guilty and five per cent for remorseand the offer to participate in restorative justice. With some rounding of the figures,this resulted in a final sentence of two years and six months' imprisonment, to beserved without parole.12[20] The consequence of this was that the defendants Aitkenhead and Robinsonwould respectively be eligible for parole after approximately eight and 10 months,whereas Mr Barnes would serve the full term of two years seven months. Althoughhis conduct in the assault was worse than that of his co-defendants, the array of thesentences shows clearly the effect of the Judge's application of the "three strikes"legislation, the unevenness of the effect of the sentences (assuming the otherdefendants were paroled) being largely attributable to Mr Barnes' stage-1 offence.Leaving s 86C on one side, the stage-1 offence would not have been considered arelevant aggravating factor to be taken into account at sentencing for the later offence,because of its very different nature. It said nothing relevant about the defendant'scharacter or predilection to commit a particular kind of offence.13 For this reason, thesentence could not appropriately have been uplifted to reflect the first conviction andthe fact the Judge did not do so did not mitigate the effect of s 86C, as the Judgeseemed to imply.[21] Judge Crosbie was clearly of the view that the effect of the resulting sentencewould be severe. He said:14[37] I want to mention something about that second strike warning. Thelawyers have spoken to me today about a High Court decision in Palalagi vPolice that refers to another decision of R v Wereta. In my view both thosedecisions instruct me that I cannot discount your sentence for reason that youhave had a second strike warning. That is because the strike warning is abouthow your sentence will function and be carried out. That unfortunately foryou as a young man, will send to you and others a really additional and harsh11 The Judge referred to previous "convictions", but there was only one, for the stage-1 offence.12 The sentence originally imposed was two years seven months' imprisonment. In a minute issuedon 18 May 2017 Judge Crosbie explained an error that he had made in calculating the end sentenceand corrected the sentence to two years six months' imprisonment: R v Aitkenhead [2017] NZDC10342.13 Beckham v R [2012] NZCA 290 at [84]; R v Ward [1976] 1 NZLR 588 (CA) at 590–591; and R vCasey [1931] NZLR 594 at 597 (CA).14 R v Aitkenhead, above n 8 (footnotes omitted).message about what these strike warnings are all about and the realconsequences that they can have. All I can say in relation to that is you areperhaps fortunate that the starting points that have been adopted today are nothigher and the offending was not worse because at the end of the day you willstill leave prison relatively young man, so you need to hold onto that.[22] As to the last sentence, in that passage it may be noted that the starting pointswere not adopted on any basis other than their appropriateness for the actual offending,and it is unclear what was intended by the observation that Mr Barnes was lucky theoffending was not worse. In following remarks the Judge urged Mr Barnes to takeadvantage of programmes that would be available in prison to enhance his skills, andsaid he should not let the fact of serving his whole sentence lead him into some sort ofdespair.15[23] We think it clear the Judge had misgivings about the effect of the sentence hefelt obliged to impose, given Mr Barnes' particular circumstances.The High Court appeal[24] Mr Barnes appealed to the High Court contending that the sentencing Judgeshould have taken into account the fact the sentence was to be served without parolein fixing the end sentence, and had not done so. The application of s 86C to Mr Barnesin this case was a particular circumstance relating to him, and in the circumstances ofthis case meant the sentence was disproportionately severe. Gendall J described thesole issue before him as whether the sentence should have been adjusted to reflect thefact that he was a stage-2 offender required to serve the full term of the sentence unders 86C.[25] The Judge referred to various High Court authorities, including those to whichJudge Crosbie had referred. He expressed his agreement with the view taken byMoore J in Palalagi v Police16 that parole eligibility is a factor which judges shouldnot take into account in determining sentence length.17 The Judge expressed the viewthat in light of the authorities to which he had referred, Judge Crosbie had not erred in15 At [38].16 Palalagi v Police [2015] NZHC 1832.17 At [57]. Other cases discussed included R v Wereta [2015] NZHC 2683; and Sheers v R [2016]NZHC 2353.refusing to discount Mr Barnes' sentence because of the consequences of a stage-2offence. He continued:18In response to the appellant's submissions, I find that "normal sentencing" asmentioned by the Hon Judith Collins meant sentencing that does not takeinto account the consequences of the three strike regime. It also seems to methat if there is an inconsistency between s 8(g) and (h) of the Act on the onehand, and s 86C on the other, to that extent, the three strikes regime prevailsas s 86I specifically requires.19[26] The Judge rejected the submission that the Court could consider paroleeligibility at the time of sentencing. He considered that it was Parliament's clearintention in enacting the three strikes legislation to separate the judicial function ofsentencing from the statutory consequences of the new legislation.[27] The Judge referred to other observations that had been made by the Minister atthe second reading of the Sentencing and Parole Reform Bill defining the mainpurposes of the legislation as being to deny parole to repeat serious violent offendersand to offenders guilty of committing the worst murders, and to impose the maximumterms of imprisonment on "persistent repeat offenders who continue to commit seriousand violent offences."20 The Judge expressed the view that it was "difficult toconclude" after reviewing Mr Barnes' criminal history, that his record was one "evenapproaching the worst of its kind".21 He referred to the "spectrum of severity andculpability that the State needs to consider before deeming a particular individualunworthy of being considered for parole."22 He questioned whether in this case itcould truly be said that Mr Barnes fell into a category of "persistent repeat offenderswho continue to commit serious and violent offences".23 He recorded his view that itwas possible that "what might be seen as a straight-jacket approach in the three strikeregime" could on occasions such as this "cause unintended consequences".2418 Barnes v R, above n 1, at [26].19 The reference to the Hon Judith Collins was because of what she had said at the third reading ofthe Sentencing and Parole Reform Bill, observations which Gendall J had earlier quoted, andwhich had been quoted by Moore J in Palalagi v Police, above n 16.20 Barnes v R, above n 1, at [28].21 At [29].22 At [30].23 At [30].24 At [30].[28] We think it clear that, as with Judge Crosbie, Gendall J was concerned that thesentence he considered he was obliged to uphold would be contrary to some of thefundamental principles of sentencing which Parliament has itself enacted.The appeal to this Court[29] The sole issue sought to be advanced on the appeal is whether the sentencingcourt had jurisdiction to reduce what otherwise would have been an appropriate termof imprisonment for the reason that Mr Barnes was required to serve the full term ofthe sentence without parole.Appellant's submissions[30] Mr More submits that if the sentencing court was entitled to reduce thesentence because Mr Barnes was a stage-2 offender, then in the particularcircumstances of this case it should have done so.[31] In elaborating the argument Mr More noted that s 86C of the Sentencing Actdoes not "mandate" a term of imprisonment for a stage-2 offence. Nor does it offerany guidance or instruction to the sentencing judge as to the length of the term ofimprisonment if a term of imprisonment is imposed. Because the three strike regimehas been included in the Sentencing Act, the provisions are part of the ordinarysentencing process. Section 86C in particular does not provide that it prevails overany other provisions of the Act. Relevant provisions include the purposes andprinciples of sentencing set out in ss 7, 8 and 9. Mr More relied in particular on s 8(h)which provides that in sentencing or otherwise dealing with an offender the Court musttake into account: any particular circumstances of the offender that mean that a sentence orother means of dealing with the offender that would otherwise be appropriatewould, in the particular instance, be disproportionately severe.[32] Mr More submitted that in the absence of a stage-2 warning, Mr Barnes wouldbe eligible to be considered for parole after he had served one third of the sentence.Having regard to his age, the absence of any previous violent offending, and assumingan incident-free period of imprisonment, it is likely he would have been released onparole after serving one half of his sentence. The fact that he has to serve his sentencewithout parole is a particular circumstance relating to Mr Barnes that means a sentenceof two years and six months' imprisonment was disproportionately severe. He arguedthat there was nothing in the Sentencing Act that would have prohibited theDistrict Court from adjusting the sentencing by application of s 8(h) because the fullsentence must be served without parole.[33] In the present case, the Court should have imposed a sentence of two years orless because that would have enabled the Court to impose post release conditions inaccordance with s 93(2) of the Sentencing Act with the consequence that standardconditions of release would apply until the sentence expiry date, or (in terms ofs 93(2A)(c)) a specified date up to six months after the sentence expiry date.The Court could at the same time impose any special condition which again couldexpire on the sentence expiry date or up to six months thereafter. In the latter category,Mr More referred in particular to the special conditions provided for in s 15 ofthe Parole Act 2002 which includes, under s 15(3)(b), "conditions requiring theoffender to participate in a programme to reduce the risk of further offending bythe offender through the rehabilitation and reintegration of the offender".Respondent's submissions[34] For the respondent, Ms Brook submitted that Gendall J was right to affirm theapproach taken in Palalagi v Police25 and Sheers v R,26 which was consistent withother High Court judgments to which she referred.27 She submitted that it was clearfrom the Parliamentary debates on the three strike legislation that disproportionatelyhigh sentences were anticipated and intended. The Minister responsible for the Billreferred in Parliament to an escalating regime of penalties for repeat violent offenders.Ms Brook submitted that one step in the escalating regime of penalties is serving theappropriate sentence, without the possibility of parole. Mr Barnes' reliance on s 8(h)of the Act should be seen as an attempt to avoid the escalated outcome intended byParliament. She contended that there could be no clearer inconsistency with s 86Cthan the application of s 8(h) as contended for by Mr More. In those circumstances,s 86C must prevail because of s 86I, which provides:25 Palalagi v Police, above n 16.26 Sheers v R, above n 17.27 R v Wereta, above n 17; and R v Ratima [2017] NZHC 252.A provision contained in sections 86B to 86E that is inconsistent with anotherprovision of this Act or the Parole Act 2002 prevails over the other provision,to the extent of the inconsistency.[35] Ms Brook's argument relied on observations made by Moore J in Palalagi vPolice. She submitted that Moore J was right to observe:28The courts should be cautious to not artificially create a sphere of judicialdiscretion where one does not actually exist. Parliament clearly envisagedroom for the exercise of judicial discretion under ss 86D and 86E. Thesesections recognise a "manifestly unjust" exception. However, this exceptionarises only at stage-3. To that extent, Parliament's intention is clear. There isno discretion available in s 86C.[36] Ms Brook supplemented these submissions by arguing that there is nothing inthe Act to suggest that non-eligibility for parole under s 86C was intended to affect thecalculation and determination of sentence length. In reliance on this Court's decisionin R v Stockdale she submitted that in general parole eligibility should have no bearingon a sentencing court's determination of the appropriate sentence.29 She claimed itwould be wholly inappropriate for courts to engage in a speculative exercise aboutparole at the time of sentencing a stage-2 offender.[37] The logic of the respondent's stance led Ms Brook to the position that althoughshe accepted Gendall J was correct to refer to the harsh consequences of the statutoryregime, those consequences were "completely irrelevant". Parliament had notprovided a "manifestly unjust" exception to apply at stage-2, such as had beenprovided at stage-3. This meant that the stage-2 sentence was notionally just, by virtueof the statute. The Court was powerless to reach its own view of a just sentencingoutcome because of the clarity of the legislation. In fact, if the Court formed the viewa sentence was unjust it was nevertheless bound to impose it.[38] Very clear words would be needed for the Court to accept that Parliamentintended the legislation to be read in that way.28 Palalagi v Police, above n 16, at [62].29 R v Stockdale [1981] 2 NZLR 189 (CA).AnalysisThe meaning of s 86C(4)[39] We have not been persuaded by the respondent's argument. The issuepresented is one of statutory construction. The Court's task is to ascertain the meaningof s 86C(4), which we have earlier set out. On an orthodox approach that involvesconsidering the meaning of the words used, their context in the statute and the purposeof the legislation. The primary reference point must be the statute itself. Words usedin Parliament by the Minister responsible for a Bill may be of assistance, but theyought not to have the effect that words in the statute are given a meaning that theycannot properly bear. The focus here must be not only on the Sentencing and ParoleReform Act 2010 but also on the Sentencing Act itself. The former statute does notstand alone; pt 1 was conceived and drafted to be part of the Sentencing Act.[40] It is clear that when Parliament passed the Sentencing and Parole Reform Actthe intention was that there should indeed be an escalating scale of consequences forrepeat criminal offending involving serious violence.30 That is consistent with thestated purpose of the Act set out in s 3:The purpose of this Act is to–(a) deny parole to certain repeat offenders and to offenders guilty of theworst murders:(b) impose maximum terms of imprisonment on persistent repeatoffenders who continue to commit serious violent offences.[41] The main elements of the new three strike regime were summarised inParliament by the Honourable Judith Collins, as the Minister responsible for the Bill,in the following terms:31For the benefit of the House, I will recap the main elements of the regime.When convicted of a serious violent offence for the first time, an offender willbe sentenced as normal but will be very clearly warned that he or she will nowbe subject to the three-stage regime, and warned what will happen if he or sheis convicted of a further serious violent offence. If the offender is convictedof a second serious violent offence, the implications are more serious. He or30 The background scheme of the Sentencing and Parole Reform Act 2010 has been discussed bythis Court in R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602.31 (25 May 2010) 663 NZPD 11227.she will be sentenced as normal but any jail sentence will be served in fullwithout parole. The offender will be warned again, both verbally and inwriting, of the consequences of a third conviction for a serious violent offence.If the offender fails to heed the previous warnings and is convicted of a thirdserious violent offence, he or she will be sentenced to the maximum penaltyfor that offence, to be served without parole.[42] This evinces a legislative intent to ensure that at each stage of the processappropriate sentences are imposed, but the consequences of the sentences differaccording to the "stage" at which the sentencing occurs. A stage-2 offence will havethe consequence that the sentence imposed, arrived at in the normal way, will be servedwithout parole. What the Minister said in Parliament is reflected by the words used ins 86C(4), relevantly: the court must order that the offender serve the full term of the sentenceand, accordingly, that the offender,—(a) in the case of a long-term sentence serve the sentence withoutparole; and(b) in the case of a short-term sentence not be released before theexpiry of the sentence.[43] As we have seen, Gendall J decided that it was appropriate to construe theMinister's reference to the offender being "sentenced as normal" as meaningsentencing on a basis that does not take into account the consequences of the threestrikes regime. However, the task here is not to construe what the Minister meant bythat phrase. We have to consider s 86C(4) in the context of the Sentencing Act as awhole and having regard to the central importance of the role of judges in thesentencing process.[44] Section 86C and other provisions inserted by the Sentencing and ParoleReform Act are part of a comprehensive statute, the Sentencing Act, which for the firsttime set out to delineate in statutory form a set of principles Parliament expected to beapplied in the sentencing process. In substance, the Sentencing Act distilledsentencing practices that had been developed over time. The statutory delineationstarts with s 3, which states the purposes of the Act in four objectives. The first is toset out the purposes for which offenders may be sentenced or otherwise dealt with, thesecond is to promote those purposes by providing principles and guidelines to beapplied by the courts, the third is to provide a sufficient range of sentences and othermeans of dealing with offenders, and the fourth is to provide for the interests of thevictims of crime.[45] Consistent with the statement of the purposes of the Act in s 3, s 7 sets outpurposes of sentencing for which a Court may sentence or otherwise deal with anoffender. The list is well known and need not be fully recited here. It includes holdingthe offender accountable for harm done to the victim and the community, promoting asense of responsibility in the offender, providing for the interests of the victim,providing for reparation for harm, protecting the community from the offender andassisting in the offender's rehabilitation and reintegration.[46] Section 8 then follows, setting out principles of sentencing or otherwise dealingwith offenders. The statutory language obliges the Court to take the various mattersset forth into account. Section 8(a) provides that in sentencing or otherwise dealingwith an offender the court must take into account the gravity of the offending in theparticular case. Under s 8(b) the court must take into account the seriousness of thetype of offence, and there are duties under s 8(c)–(d) to impose the maximum penaltyor a penalty near the maximum prescribed for offences if the offending is of thatnature. There is a requirement to take into account the general desirability ofconsistency, and under s 8(g) the court: must impose the least restrictive outcome that is appropriate in thecircumstances, in accordance with the hierarchy of sentences and orders setout in section 10A [47] Section 8(h) obliges the Court to: take into account any particular circumstances of the offender that meanthat a sentence or other means of dealing with the offender that wouldotherwise be appropriate would, in the particular instance, bedisproportionately severe [48] Section 8(i) requires the Court to take into account "the offender's personal,family, whanau, community, and cultural background in imposing a sentence or othermeans of dealing with the offender with a partly or wholly rehabilitative purpose."Finally, s 8(j) obliges the Court to take into account any outcomes of restorative justiceprocesses in relation to the particular case.[49] Section 9(1)–(2) then sets out detailed obligations to take into accountaggravating and mitigating factors respectively. The language used is againmandatory. For example, under s 9(1)(a) the Court must take into account that theoffence involved actual or threatened violence or the actual or threatened use of aweapon. Similarly, under s 9(2)(a) the Court must take into account the age of theoffender. The Sentencing Act continues by setting out a hierarchy of sentences andorders (s 10A) and describes the circumstances in which it will be appropriate to adoptthe various options (ss 11–20). It is clear from the structure of the Sentencing Act andthe detail of the directions given by Parliament that the courts are required to considerin each case a wide spectrum of matters designed to ensure that the sentence imposedis appropriate. Despite the detail of the prescription, however, it is necessarily the casethat the sentencing court must decide what weight to give the various statutoryconsiderations and what the appropriate sentence is in each particular case. That is theessence of sentencing, and must be what the Minister intended by her reference inParliament to sentencing stage-2 offenders in the normal way.[50] Consequently, we consider s 86C(4) applies after the sentence has beenevaluated in the normal way and imposed.[51] This conclusion is consistent with what was said by the Supreme Court aboutthe sentencing process in Hessell v R. Writing for the Court, McGrath J said:32[42] Accordingly, in articulating the purposes and principles of sentencing,and circumstances which will aggravate or mitigate offending, Parliament hasboth clarified the factors to be addressed and given legislative force to the dutyto take them into account. It has done so both for the benefit of judges and tofoster greater awareness of the public concerning the complexity of what hasto be considered in the sentencing task. That complexity, as the legislationmakes apparent, arises both from the large number of principles and purposesof sentencing and the infinite variety of circumstances of criminal offendingthat will be relevant to the appropriate sentence. The impact of these variousconsiderations, applicable in any case, may tend to aggravate or mitigate theoffending. Often they will pull in different ways.[43] In this context the proper application of punishment for offendingremains, as it was prior to the 2002 legislation, an evaluative task forsentencing judges and those judges who determine sentencing appeals. The32 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607. See also the observations of Richardson J inFisheries Inspector v Turner [1978] 2 NZLR 233 (CA) at 237 about the traditional divisionbetween the functions of the legislative and judicial branches of government in the sentencingfield.task reflects the amalgam of sentencing discretion, on the one hand, whichensures the gravity of individual offending and circumstances of the offenderare duly assessed, and sentencing consistency, on the other, which temperssentencing judgment to ensure that sentencing outcomes reflect a policy oflike treatment for similar circumstances.Justice and proportionality[52] Under s 86D of the Sentencing Act, when the court sentences an offender for astage-3 offence other than murder, it must sentence the offender to the maximum termof imprisonment prescribed for each offence33 and order that the offender serve thesentence without parole "unless the Court is satisfied that, given the circumstances ofthe offence and the offender, it would be manifestly unjust to make the order".34Similarly, where murder is a stage-2 or stage-3 offence, the statute contemplates thata sentence of life imprisonment will be imposed,35 and that there will be an order thatthe sentence be served without parole "unless the court is satisfied that, given thecircumstances of the offence and the offender, it would be manifestly unjust to doso".36 This approach is repeated where murder is a stage-3 offence and the Court hasnot sentenced the offender to life imprisonment without parole. In those cases, theCourt must impose a minimum period of imprisonment of not less than 20 yearssubject to the manifestly unjust exception.37 These provisions were discussed by thisCourt in R v Harrison.38[53] We are not persuaded that the particular provisions enabling manifest injusticeto be taken into account at stage three (and where murder is a stage-2 offence) meanthat the Court ought not to be concerned about manifest injustice when sentencingstage-2 offenders. Not only is there no statutory provision which directly provides forthat effect but, in addition, such a conclusion would be contrary to the comprehensiveapproach to sentencing required by the detailed provisions of the Act. As has beenseen, that approach involves consideration not only of the position of victims but ofthe individual circumstances of the offender. Further, the express references tomanifest injustice in ss 86D and 86E are in contexts where the Court has been required33 Section 86D(2).34 Section 86D(3).35 Section 86E(2)(a).36 Section 86E(2)(b).37 Section 86E(4)(a).38 R v Harrison, above n 30.by the statute to impose the maximum penalty for the offence. In the other class ofcases, such as stage-2 offences other than murder, the normal sentencing approachapplies. This necessarily involves the Court avoiding manifest injustice. This did notneed to be spelled out.[54] In fact, we consider the references to manifest injustice in ss 86D and 86Edemonstrate a parliamentary intent that the Sentencing and Parole Reform Act as awhole should not be applied so as to result in such injustice. We think it inherentlyunlikely the legislature would have contemplated sentences of that kind at stage-2. Itfollows that an approach that avoids manifestly unjust outcomes will be in accordancewith the legislative intent.[55] In R v Harrison this Court pointed out that there was a potential tensionbetween the provisions of s 86E of the Sentencing Act and s 9 of the New Zealand Billof Rights Act 1990 which affirms the right not to be subjected to amongst other things"disproportionately severe treatment or punishment". The Court inferred thatParliament intended that any sentence imposed on an offender under s 86E should notbe grossly disproportionate to the circumstances of the offending and the offender.The Court said:39We assume that Parliament, in introducing the new sentencing regime forrepeated serious violent offending, intended that any sentence imposed on anoffender should not be grossly disproportionate to the circumstances of theoffending and the offender contrary to s 9 of the Bill of Rights Act and theprinciples enunciated in Taunoa. The fact the Attorney-General in his reportunder s 7 of the Bill of Rights Act did not indicate any inconsistency betweens 86E and the Bill of Rights Act is relevant here. No doubt this is whyParliament provided that the mandatory sentence of life imprisonment withoutparole need not be applied where, in the judge's discretion, such a sentencewould be manifestly unjust. As we have noted, the phrase is not defined forthe purposes of the new regime and therefore requires judicial interpretation.[56] For similar reasons, we conclude that in stage-2 cases not involving murderParliament must have intended that sentencing judges would not impose sentences thatare disproportionately severe or manifestly unjust. We say that despite the absence ofa provision making an exception for manifest injustice in s 86C itself, for reasons39 R v Harrison, above n 30, at [83] (footnotes omitted). Compare Lloyd v R 2016 SCC 13, [2016]1 SCR 130 at [3] referring to the constitutional vulnerability in Canada of statutory provisionsimposing mandatory minimum sentences.already addressed. That conclusion is in accordance with the right affirmed in s 9 ofthe New Zealand Bill of Rights Act. This is a further consideration supporting ourview that Parliament intended s 8(h) of the Sentencing Act to apply in the stage-2sentencing evaluation.[57] By enacting s 8(h) Parliament has obliged the sentencing Judge to take intoaccount any particular circumstances of the offender that mean a sentence or othermeans of dealing with the offender that would otherwise be appropriate would, in theparticular instance, be disproportionately severe. Applied in the circumstances of thiscase, it meant that the sentencing Judge was obliged to take into account the facts thathaving committed a stage-1 offence, Mr Barnes would serve any sentence imposedwithout parole. The Judge could have concluded that would be a disproportionatelysevere outcome having regard to the fact that the non-parole provision would onlyapply because it was a stage-2 offence, yet the stage-1 offence was for conductinvolving consensual sexual relations between an 18-year-old and a 14-year-old,devoid of any suggestion of violence. The respondent says, however, that those arecircumstances which could not be taken into account. In our view, there is nothing ins 86C(4) which has that effect. It will be noted that the provision applies once thesentence to be imposed has been ascertained. It is the sentence that must be servedwithout parole. We do not think that excludes in a case such as the presentconsideration of the matters particular to Mr Barnes which we have just outlined.[58] The risk of a disproportionately severe sentence is starkly illustrated in a caselike this. The qualifying offence was only a serious violent offence because Parliamentdeemed it so. The circumstances of Mr Barnes' previous offending did not place himnear the category of persistent repeat offenders identified in s 3 of the Sentencing andParole Reform Act whom Parliament intended to deny parole. Serving the fullsentence of two years and six months without eligibility for parole isdisproportionately severe having regard to Mr Barnes' personal circumstances and thecircumstances of his offending. Its disproportionality is compounded when comparedto the availability of parole to his co-offenders, with the result that he could serve morethan double the time that they serve.[59] It is not simply a question of proportionality, however. In our view, in theabsence of clear language to the contrary, the legislative intent must be taken to be thatall the other relevant purposes and principles of sentencing set out in pt 1 of theSentencing Act should apply in evaluating the sentence to be imposed on the stage-2offender. This brings into account rehabilitative purposes (ss 7(1)(h) and 8(i)), andwhere appropriate s 8(g) (the duty to impose the least restrictive outcome appropriatein the circumstances), as well as those other provisions that would tend to increase asentence to mark the gravity of the offending.Inconsistency[60] The respondent relies on s 86I. For ease of reference, we set it out:A provision contained in sections 86B to 86E that is inconsistent with anotherprovision of this Act or the Parole Act 2002 prevails over the other provision,to the extent of the inconsistency.[61] Again, we do not consider that there is any inconsistency between s 86C(4)and the general provisions of ss 7 and 8 of the Sentencing Act. The latter can beapplied in the course of ascertaining the sentence it is appropriate to impose.Section 86C(4) then comes into effect and says that sentence, the sentence soformulated, is to be served without parole. There is no inconsistency.[62] Parliament could have taken a different approach had it wished to write astatute with the effect for which the Crown contends. That could have been achievedhad s 86I been worded so as to contain a clear instruction that the sentencing courtmust not consider parole eligibility in evaluating the sentence. That is not the coursethat has been taken. On the contrary, the new provisions have been placed into thestatute in a way that relies on the general provisions of the Sentencing Act rather thanexcluding them. Sentencing takes place "in the normal way".[63] Nor do we accept, as Moore J held in Palalagi, that there is an inconsistencybetween s 86C(4) and s 8(g), with its requirement that the sentencing Judge mustimpose the least restrictive outcome that is appropriate in the circumstances.40 Once40 Palalagi v Police, above n 16, at [65].again, s 8(g) applies at the time the sentence is being evaluated; s 86C(4) applies afterthat event.[64] We do not consider our approach involves creating a sphere of judicialdiscretion where one does not exist. We think it more accurate to characterise theapproach urged on us by the Crown as one which seeks to remove judicial discretionwhich Parliament has conferred in pt 1 of the Sentencing Act.Taking parole eligibility into account[65] We agree, as Ms Brook submitted, that as a general rule a sentencing court willnot take into account considerations based upon parole eligibility. The generalposition was discussed and explained by this Court in R v Stockdale.41 In that case,Mr Stockdale had been sentenced in the High Court to imprisonment for four and ahalf years on a charge of aggravated robbery to which he had pleaded guilty.He subsequently sought leave to appeal against the sentence for the unusual purposeof obtaining an increase in his sentence as opposed to a reduction. If the sentence wereincreased to one of five years' imprisonment, he would become eligible for parole atan earlier time than if his sentence remained at four and a half years. This Courtrefused leave to appeal on the basis that the sentence imposed was within the rangeavailable to the Judge. Under s 33A(2)(e) of the Criminal Justice Act 1954 then inforce, the offender would have been eligible for parole after he had served two and ahalf years. But under the sentence of four and a half years, he had no automatic rightto have his sentence considered by the Parole Board after serving a specified portionof the sentence. He argued that he risked serving a longer period of imprisonmentunder the sentence of four and a half years than if it were increased to five years.[66] In its reasons for refusing leave the Court said:42The duration of any custodial sentence is generally best determined withoutreference to an offender's eligibility for parole. There are good reasons fortaking such a view. Sentences imposed by the Courts reflect the balancing ofa number of factors, including the nature and circumstances of the offence, thecharacter of the offender, the need for the imposition of a deterrent penalty,and the presence of mitigating factors. The balancing of these factors will41 R v Stockdale, above n 29.42 At 190.not be better effected if the sentencing Court is obliged to take into account,in imposing a sentence of imprisonment, an offender's eligibility for parole byreference to the length of sentence imposed.[67] The Court observed that one result of the consideration of parole might be thatthe offender should not be released, and continue to serve the sentence.43 While thataspect of the Court's reasoning remains valid, it should be noted that the Court wasnot purporting to lay down an inflexible rule but rather to address the position thatapplied "generally". And importantly what was expressly rejected was anyrequirement to consider parole. This was not to say that in an appropriate case it mightnot be appropriate for the Court to have regard to parole eligibility in determining asentence.[68] In R v Accused (CA265/88) parole eligibility was clearly taken intoaccount.44 The appellant had been sentenced to two years nine months' imprisonmentfollowing his plea of guilty to a charge that he had sexually violated the complainant.When the offending commenced, the defendant was aged 18 years, thecomplainant 10. The appeal was advanced on the basis that a non-custodial sentencewould have been more appropriate than the sentence imposed: counsel relied onresearch material concerning youthful sex offenders and their prospects forrehabilitation. For present purposes, the case is relevant for what was said by Bisson J,writing for a unanimous Court of five, in relation to psychological counselling andparole.[69] The Court considered that there were reasons to consider that if the offenderhad paedophiliac tendencies there was good reason to think they might be curable.45It concluded there was justification for the sentence of imprisonment to be reduced totwo years so that an order could be made under s 77A of the Criminal Justice Act 1985for the accused to receive counselling if released on parole.46 At the time the appealwas decided it was not possible to impose special release conditions on a sentence ofmore than two years' imprisonment. This Court accordingly granted leave to appeal,43 At 191.44 R v Accused (CA265/88) [1989] 1 NZLR 643.45 At 655.46 Section 77A of the Criminal Justice Act empowered the Court to impose special conditions towhich the offender would be subject if released on parole in accordance with the Act.allowed the appeal and quashed the sentence of two years nine months' imprisonment.In lieu it sentenced the appellant to two years' imprisonment, recommended that hereceive counselling whilst serving his sentence and ordered that, if he were to bereleased on parole, he be subject for the period of his parole to the special conditionthat he undergo a programme of psychological counselling on such terms as specifiedby the District Prisons Board.47[70] A similar approach was taken by this Court in R v Hape.48 In that case,Mr Hape pleaded guilty at trial after the conclusion of the Crown case to counts ofmanslaughter by carelessly driving a motor vehicle and of failing to stop and ascertainwhether anyone was injured arising from an accident with a motor vehicle.He subsequently also appeared for sentence on a charge of driving while disqualifiedarising from the same incident to which he had earlier pleaded guilty in theDistrict Court and been committed to the High Court for sentence. He was sentencedto three years' imprisonment on each charge. On appeal, he did not seek to disturb thetotality of his sentence for three years or the sentences on the charges other than thatof manslaughter.[71] It was submitted for Mr Hape that the sentence imposed on the manslaughtercharge had resulted in an injustice because of the provisions of s 93 of the CriminalJustice Act prohibiting consideration for parole of persons sentenced to more than twoyears' imprisonment for manslaughter. The Court was aware of its previous decisionin Stockdale, and indeed quoted from it.49 It then observed that the principle in thatcase had often been applied to ensure that a sentence was not increased because oflegislative provisions about parole.50 The Court continued:51However, the statutory provisions relating to parole have become morecomplex than was the situation in 1981. In R v Accused (CA265/88) a fiveJudge Court of Appeal held that there was justification in that case for asentence of imprisonment to be reduced to two years so that an order could bemade for the appellant to receive counselling if released on parole under s 77Aof the Criminal Justice Act 1985. Such an order could not be made if thesentence were longer than two years. That decision has been subsequentlyapplied on occasions where it was in the public interest as well as the47 R v Accused (CA265/88), above n 44, at 656.48 R v Hape [1994] 1 NZLR 167 (CA).49 At 170–171.50 At 171.51 At 171 (footnotes omitted).offender's interest that release on parole with conditions should applyfollowing a prison sentence.We likewise think it right to have regard to the consequences of the provisionsof s 93 of the Act when considering this sentence of three years' imprisonmenton the charge of manslaughter even though we are satisfied that a term of threeyears' imprisonment was fully justified for the total offending.[72] On the basis of this reasoning, the Court allowed the appeal and substituted asentence of two years' imprisonment on the manslaughter charge. Ms Brook doubtedthe correctness of the Court's observation in R v Hape that the decision in R v Accused(CA265/88) had been subsequently applied in the circumstances referred to. However,we did not understand Ms Brook to argue that these decisions were in any wayunlawful and we are not prepared to accept her submission that the experienced Judgeswho decided that case were unaware of the way in which R v Accused (CA265/88) hadbeen applied in the years since that judgment.[73] There are therefore two judgments of this Court, one involving a Court of five,in which a sentence has plainly been reduced for purposes related to statutoryprovisions concerning parole. In one the sentence was reduced for the express purposeof enabling a particular order in relation to counselling to be imposed, and in the otherto avoid the prohibition of consideration for parole of persons sentenced to more thantwo years' imprisonment for manslaughter.[74] In a third case, R v Mwai, although it did not allow the sentence appeal, thisCourt referred to the general rule concerning parole eligibility set out in R v Stockdale,but then specifically observed that:52There is no inflexible rule, and in an appropriate case it is permissible to haveregard to the realities of the case in order to ensure a just sentence; see forexample R v Hape [75] Quite apart from these authorities, it is the experience of the members of thisCourt that sentencing regularly takes place on a basis which at least implicitly takesinto account the likely impact of the parole regime. Whilst it may not be done as amatter of general course, for the reasons addressed in R v Stockdale, it is clearly a52 R v Mwai [1995] 3 NZLR 149 (CA) at 157.lawful approach if carried out for a legitimate purpose in evaluating the appropriatesentence.[76] We think it fair to infer the Minister would have been aware of the approachtaken in these cases when she referred in Parliament to sentencing at stage-2 beingcarried out in the normal way.The appropriate approach[77] In most cases sentencing will take place without consideration of paroleeligibility. However, if a court forms the view that a sentence emphasisingrehabilitation is appropriate and rehabilitation might be better achieved by earliereligibility for parole than would otherwise be the case, we consider it will be legitimateto sentence on that basis having regard to the relevant principles set out in s 8(g), (h)and (i) of the Act, notwithstanding s 84C(4). In an appropriate case, the result couldbe imposition of a sentence of imprisonment of two years or less, thereby enablingimposition of the standard and any relevant special conditions of release.[78] We emphasise that course could only be taken for a genuine purpose under theSentencing Act; it would be quite wrong simply to adopt that approach for the purposeof avoiding the effect of s 86C. But taking parole eligibility into account in this waymight be particularly appropriate to avoid manifest injustice in a case such as thepresent where the stage-1 offence was only a "serious violent offence" by virtue of thedefinition in the statute and in reality was not violent offending at all. The samereasoning would apply if the stage-2 offending fell outside the intended target ofthe legislation.[79] We anticipate that it will only be in exceptional cases that sentencing judgeswill be able to take this approach while ensuring that the purposes of both theSentencing Act and the Sentencing and Parole Reform Act are served. An examplemight be where the stage-1 offence has been overcharged and only falls within thethree strikes regime as a consequence. In this case, our reasoning turns on the fact thatMr Barnes is a young man whose stage-1 offence did not in fact involve seriousviolence, although it was within the statutory definition.Disposition[80] In this case we think it is clear that the sentencing Judge was concerned aboutthe impact of the sentence that he felt constrained by s 86C(4) of the Sentencing Actand High Court authority to impose. We infer from the language he used in sentencingthat, had he not felt so constrained, he would not have imposed the sentence that hedid, and might instead have imposed a sentence of two years for the purpose ofemphasising rehabilitation.[81] Mr More in fact invited this Court to substitute a sentence of two years'imprisonment with standard and appropriate special conditions of release. However,we are not sure that we have all the information to be confident as to the appropriatesentencing outcome whether as to the length of the sentence or what release conditionsmight appropriately be imposed.[82] For the reasons we have stated, we are nevertheless satisfied for the purposesof s 256(2) of the Criminal Procedure Act that there has been a relevant error in thesentence imposed and that a different sentence should be imposed. The appeal shouldbe allowed accordingly. Under s 257(2) this Court has all the powers that theHigh Court could have exercised if it had allowed the appeal. That includes the power(under s 251(2)(c)) to remit the sentence to the District Court and direct that Court toset aside the sentence and impose another sentence that it considers appropriate.Result[83] Leave to appeal is granted under s 253(1) of the Criminal Procedure Act.[84] The appeal is allowed.[85] The sentence is remitted to the District Court. The District Court is directed toset aside the sentence and impose another sentence that it considers appropriate. Werecommend the sentence be reconsidered by the original sentencing Judge if that ispossible.Solicitors:Crown Law Office, Wellington for Respondent