R v MURAAHI [2021] NZCA 214

R v MURAAHI [2021] NZCA 214 [28 May 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA170/2020[2021] NZCA 214BETWEEN THE QUEENAppellantAND BENNY MILES MURAAHIRespondentHearing: 30 March 2021 (further submissions received 17 May 2021)Court: French, Brown and Clifford JJCounsel: C A Brook and R K Thomson for AppellantJ H M Eaton QC, I Jayanandan and H Kim for RespondentJudgment: 28 May 2021 at 9 amJUDGMENT OF THE COURTA The application for leave to appeal a question of law under s 296 ofthe Criminal Procedure Act 2011 is granted.B We answer the questions of law submitted for determination as follows:(1) Does the giving of a warning under s 86B and s 86C of theSentencing Act 2002 require only an oral warning which is then dulyrecorded?Answer: Yes.(2) If so was the Judge's decision to treat Mr Muraahi as a stage-1offender 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[1] The sentencing regime known colloquially as "three strikes" involvesthe giving of warnings and escalating consequences for repeat violent offenders underss 86B to 86D of the Sentencing Act 2002.[2] The warnings are fundamental to the operation of the regime and this caseraises issues relating to how the warnings are to be given and proved.[3] In a High Court sentencing, Peters J held that both an oral warning and a formalwritten notice were required before a warning was operative.1 The Judge further heldthere was insufficient evidence of both those requirements having been satisfied in thiscase and therefore she did not have jurisdiction to sentence Mr Muraahi on the basishe was subject to previous warnings.2[4] The Crown wishes to challenge those rulings and seeks leave to appeal on twoquestions of law under s 296(3)(a) of the Criminal Procedure Act 2011.[5] The questions of law the Crown initially proposed for determination were:(a) Did the learned High Court Judge err in law by determining thata "record of first warning" and a "record of final warning" under s 86Aof the Sentencing Act require both an oral warning and written noticeto be given?(b) As a result, was the Judge's decision to treat Mr Muraahi as a stage-1offender under s 86B of the Sentencing Act made in error?1 R v Muraahi [2020] NZHC 346 [High Court decision] at [18].2 At [35].[6] At the hearing, it became apparent that the first question as worded was toonarrow because it used statutorily defined terms. We suggested that to capture the keyissue 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 2002require only an oral warning which is then duly recorded?If so was the Judge's decision to treat Mr Muraahi as a stage-1 offender unders 86B of the Sentencing Act 2002 made in error?[7] There was no objection to that re-wording and we accordingly exercise ourpower under s 299 of the Criminal Procedure Act to amend the questions to besubmitted for determination.[8] As required by s 296 of the Criminal Procedure Act, the proposed questions oflaw have arisen in a proceeding which followed the determination of the charge.Further, the questions are ones of general importance and the arguments advancedhave merit.[9] The application for leave to appeal is accordingly granted.The legislative regime[10] The regime known as the three strikes legislation is contained in ss 86A to 86Iof the Sentencing Act. Those sections which came into force on 1 June 2010, wereadded to the Sentencing Act to provide for "additional consequences for repeatedserious violent offending".3[11] The sections establish a three stage warning and sentencing system for anyoneconvicted of one of 40 specified offences defined as serious violent offences.[12] As noted in Hall's Sentencing, the expression "three strikes" is not used inthe legislation, the preferred expressions being stage-1, stage-2 and stage-3 offencesand first and final warnings.43 Sections 86A to 86I of the Sentencing Act 2002 were added to the Sentencing Act by s 6(1) of theSentencing and Parole Reform Act 2010.4 Geoffrey Hall Hall's Sentencing (online looseleaf ed, LexisNexis) at [SA86A.1].[13] A stage-1 offence is defined as a serious violent offence committed byan offender at a time when the offender did not have a record of first warning and wasaged 18 years or over.5[14] Following conviction for a stage-1 offence, the court must give and recorda first warning.6 The court must also give the offender a written notice that sets outthe consequences of committing a further serious violent offence.7 The form ofthe notice is prescribed by the Sentencing Regulations 2002.[15] The form relating to a first warning reads as follows:Form 12BNotice of consequences of first warningSection 86B(4), Sentencing Act 2002Case No:Note: In this notice, serious violent offence means any of the offences listedin the definition of that expression in section 86A of the Sentencing Act 2002(a copy of the definition of serious violent offence is attached).To [full name, address, and occupation of defendant]1 On [date], you were convicted of the following serious violentoffence(s): [list offences].2 I have given you a first warning, in which I warned you of theconsequences if you are convicted of any serious violent offencecommitted after that first warning.3 This notice records in writing the consequences that I explained to you.Consequences of first warningIf you are convicted of any serious violent offence (except murder) committedafter you received the first warning, you will receive a final warning. Inaddition, if the Judge imposes a sentence of imprisonment for that offence(other than life imprisonment for manslaughter, or preventive detention) thenyou will serve that sentence without parole or early release.5 Sentencing Act, s 86A.6 Section 86B(1).7 Section 86B(4).If you are convicted of a murder committed after you received the firstwarning, you will be sentenced to imprisonment for life. You must serve thelife sentence without parole unless it would be manifestly unjust to do so. Ifyou receive a life sentence without parole, you will not be released fromprison. If serving the sentence without parole would be manifestly unjust, theJudge must specify the minimum term of imprisonment you will serve.Dated at [specify] Court at [place] on [date]Signature:(Judge)[16] Although the form does not require the offender to acknowledge receipt ofthe notice, it appears to be common practice for courts to add a section headed"statement of service" for the offender to sign.[17] In the event the offender subject to a first warning is convicted of a secondserious violent offence (other than murder) they must serve the full term of any finiteprison sentence imposed for that offence, termed a stage-2 offence.8 A stage-2 offenceis defined as a serious violent offence committed by an offender at a time whenthe offender had a record of first warning.9[18] Following conviction for a stage-2 offence, the court must give and record afinal warning as well as provide the offender with a written notice of the consequencesof being convicted of another serious violent offence.10 As in the case of a firstwarning, the form of the notice is prescribed by the Sentencing Regulations and readsas follows:Form 12CNotice of consequences of final warningSections 86C(7) and 86E(9), Sentencing Act 2002Case No:Note: In this notice, serious violent offence means any of the offences listedin the definition of that expression in section 86A of the Sentencing Act 2002(a copy of the definition of serious violent offence is attached).8 Section 86C(4).9 Section 86A.10 Section 86C(1).To [full name, address, and occupation of defendant]1 On [date], you were convicted of the following serious violentoffence(s): [list offences].2 You had a record of a first warning at the time you committedthe offence(s).3 I have therefore given you a final warning, in which I warned you ofthe consequences if you are convicted of any serious violent offencecommitted after that final warning.4 This notice records in writing the consequences that I explained to you.Consequences of final warningIf you are convicted of any serious violent offence (except murder ormanslaughter) committed after you received the final warning, you will eitherbe—(a) sentenced to the maximum term of imprisonment for that offence. Youwill serve that sentence without parole unless that would be manifestlyunjust; or(b) sentenced to preventive detention. You will serve a minimum term ofimprisonment of at least the length of the maximum term ofimprisonment for the offence, unless that would be manifestly unjust.In that case, the Judge must specify the minimum term of imprisonmentthat you will serve.If you are convicted of a murder committed after you received the finalwarning, you will be sentenced to imprisonment for life. You must servethe life sentence without parole unless it would be manifestly unjust to do so.If you receive a life sentence without parole, you will not be released fromprison.If serving the life sentence without parole would be manifestly unjust,the Judge must impose a minimum term of imprisonment of at least 20 yearsunless that would also be manifestly unjust. In that case, the Judge mustspecify the minimum term of imprisonment that you will serve.If you are convicted of manslaughter committed after you received the finalwarning, you will be sentenced to imprisonment for life. The Judge mustimpose a minimum term of imprisonment of at least 20 years unless that wouldbe manifestly unjust. In that case, the Judge must impose a minimum term ofimprisonment of at least 10 years.Dated at [specify] Court at [place] on [date]Signature:(Judge)[19] Should an offender with two previous warnings commit a third serious violentoffence (other than murder), then they must be sentenced to the maximum term ofimprisonment prescribed for that particular offence unless the court is satisfied itwould be manifestly unjust to do so.11[20] The offence is a stage-3 offence defined as an offence that is a serious violentoffence committed by an offender at a time when the offender had a record of finalwarning.12[21] As will be apparent from the content of the prescribed notices, specialprovisions apply in the case of murder and manslaughter which for the purposes ofthis appeal it is not necessary for us to traverse.This case2010 offending[22] On 4 August 2010, Mr Muraahi, holding a hammer, robbed a medical centre.He pleaded guilty to aggravated robbery and was sentenced by Judge G T Winter on15 October 2010 in the District Court to three and a half years' imprisonment.13[23] Aggravated robbery qualifies as a serious violent offence for the purposes ofthe three strikes regime. The sentencing notes record the Judge giving Mr Muraahi awarning in the following terms:[11] In respect of these particular matters, you need to be advised onthe aggravated robbery, that I am now going to give you a warning ofthe consequences of another conviction. You will also be given a writtennotice outlining those consequences which lists the serious violent offencesthat might trigger your path along the scale of greater and harsher terms ofimprisonment. If you are convicted of any serious violent offence other thanmurder committed after this warning and if a Judge imposes a sentence ofimprisonment, then you will serve that sentence without parole or earlyrelease. If you are convicted of murder committed after this warning, thenyou must be sentenced to life imprisonment. That will be served withoutparole unless it would be manifestly unjust. Now in that event, the Judge must11 Section 86D(2) and (3). See also the special provision in s 86D(4) regarding minimum periods ofimprisonment for manslaughter.12 Section 86A.13 R v Muraahi DC Manukau CRI-2009-092-20647, 15 October 2010.sentence you to a minimum term of imprisonment then across all of thesematters is that you go to jail for a period of three and one half years.[24] The fact that the warning was given was recorded in Mr Muraahi's criminaland traffic history. The relevant entry reads:Imprisonment(Concurrent) -15/10/2010 - 6Months, 3 Years /15/10/2010 - FirstWarning Stage 1s86B(1)(b) SA2014 offending[25] Three and a half years later on 7 February 2014, Mr Muraahi and twoassociates, brandishing a firearm, robbed a bar. He was again charged with aggravatedrobbery and other offences. During the course of a sentencing indication on25 September 2014, Judge G T Winter told Mr Muraahi that he would be subject to asecond strike warning and that someone subject to a second strike warning wouldnormally serve the full term of imprisonment without parole.14[26] Mr Muraahi pleaded guilty the following day and in accordance with thesentencing indication was sentenced by Judge Winter on 19 November 2014 toa prison term of four years to be served without parole.15[27] In his sentencing notes, Judge Winter referred to the fact that as a second stageoffender, Mr Muraahi was liable for a second strike warning and that under the regimehe must serve any long term sentence without parole.16 The Judge went on to discusswhether in fixing the length of the sentence, the Court was entitled to take into accountthe fact that the sentence would be served without parole. The Judge concluded thatit was and calculated his end sentence on that basis.1714 R v Muraahi DC Manukau CRI-2014-092-4111, 25 September 2014 at [21].15 R v Muraahi DC Manukau CRI-2014-092-4111, 19 November 2014 at [22].16 At [11].17 At [12]–[22].[28] According to the information provided to Peters J, the oral warning itself wasnot transcribed. However, Mr Muraahi's criminal and traffic history containsthe notation that he was given the requisite final warning and he subsequently signeda document confirming he had been served with a notice of consequences. The noticewas not signed by Judge Winter but by another District Court Judge,Judge McNaughton.[29] Shortly after his release from prison, in March 2018, Mr Muraahi and othergang associates robbed a shop and a currency van at gun point. They conspired tocommit a further aggravated robbery but were arrested before the plan was carriedout.18[30] Mr Muraahi was charged with two charges of aggravated robbery and one ofconspiracy to commit aggravated robbery. This time he defended the charges but wasfound guilty at trial.[31] At sentencing in the High Court, his counsel Ms Jayanandan submittedthe Judge was required to sentence Mr Muraahi as a stage-1offender under the threestrikes legislation, and not, as the Crown argued, a stage-3 offender. Ms Jayanandanacknowledged her client had received the oral warning required under the three strikeslegislation on conviction for the 2010 aggravated robbery but contended there was noevidence he had received the required written notice. Then in relation to the 2014aggravated robberies, there was evidence he had received the written notice but noevidence he had been given the oral warning.19[32] Peters J held that both an oral warning and the written notice are componentsof the warning and that the offender must receive both before he or she is to be treatedas having been warned. In so holding, the Judge followed a previous High Courtsentencing decision20 and one District Court judgment.21 The Judge then went on to18 High Court decision, above n 1, at [4]–[13].19 At [25]–[28].20 R v Patel [2018] NZHC 2946.21 R v Allen [2018] NZDC 14972, [2019] DCR 227. The Judge also cited a decision of this Court,Do v Police [2016] NZCA 420, [2016] NZAR 1354. However, that decision did not address theissue of whether giving both a written and oral warning was a pre-requisite to the validity of thewarning.consider the evidence regarding Mr Muraahi's previous warnings and concluded thatit was insufficient to establish that both requirements had been satisfied. 22 This meantthat she did not have jurisdiction to sentence Mr Muraahi as a stage-3 offender or evenas a stage-2 offender.23[33] The Judge accordingly sentenced Mr Muraahi on the basis that he was a stage-1offender but one with a serious criminal history.24 She gave Mr Muraahi an oral firstwarning and then instructed the registrar to hand him a written notice of consequencesin Form 12B.25 The Judge then sentenced Mr Muraahi to 13 years' imprisonment witha minimum period of imprisonment of seven years and six months.26[34] That outcome prompted the Crown to seek leave to bring the current appeal.In its view, a requirement to produce both a transcript of the oral warning and a copyof the notice of consequences presumably with additional proof that it was actuallyserved on the offender is not necessary under the statute and is impractical.The practical concerns arise from the fact that the courts' filing systems are still largelypaper-based, manual systems leading to obvious difficulties in locating original hardcopies especially several years after the event.Additional information obtained for the appeal[35] Prior to the hearing before us, the panel initially seized of the appeal askedcounsel to conduct further inquiries regarding four matters. In response, the Crownprovided affidavit evidence from Ms Rope, a services manager working atthe Manukau District Court where Mr Muraahi was sentenced in 2010 and 2014.Some of the information was within Ms Rope's own personal knowledge, and someof it was obtained from the Chief District Court Judge as well as other Ministry ofJustice (Ministry) sources.22 High Court judgment, above n 1, at [32]–[34].23 At [35].24 At [36].25 At [38]–[39].26 At [51]–[52].The Ministry's case management system (CMS)[36] The first of the Court's requests related to the CMS data base system operatedby the Ministry and the fact it was possible to generate a copy of a formal notice ofconsequence of warning both in relation to the 2010 and 2014 offending whenaccessing Mr Muraahi's file on the system.[37] As explained by Ms Rope, CMS is designed to reflect the existence ofthe official court record. The fact of a judicial direction and its nature will be enteredinto the system but not the verbatim or oral record of the direction. Verbatim directionsare recorded in a minute or transcript which is held on the physical court file.[38] Information is entered into CMS by "users" who are all qualifiedDeputy Registrars. CMS has been developed with business rules aimed at ensuringthe data entry is both accurate and compliant with the applicable legislation.The entered data is used to help registries administer cases and produce necessarycourt documents.[39] Where a defendant is convicted and sentenced for a three strikes offence, a userenters that information into CMS. When the charge outcome is updated as convictedand sentenced, a separate pop up message appears prompting the user to check whethera warning was directed by the judge. If the judge has recorded on the chargingdocument that a warning was given, then that warning is entered in CMS. CMS isonly able to generate a notice of consequences document if the warning has beenentered.[40] We pause here to interpolate that although this was not part of Ms Rope'saffidavit evidence, the Crown in its submissions noted that criminal and traffichistories are also derived from the CMS database.Judicial procedure for signing a notice of consequence[41] As already mentioned at [28], the 2014 notice in this case was not signed bythe sentencing judge (Judge Winter) as contemplated by the prescribed form but bya different Judge. That was one of the reasons which persuaded Peters J it was notsafe to infer from the notice that Judge Winter had given an oral warning.27[42] According to the information obtained by Ms Rope:In the usual course that written notice would be signed by the Judge who gavethe warning. But such signing cannot universally always be the case. The factis that for various reasons the Judge who gave the warning may simply not beavailable when for operational reasons (in the interests of justice) it isnecessary or desirable for the notice to be given promptly to the offender.In those limited circumstances a Judge who is available may sign the noticefollowing the earlier giving of the warning and recording of it (which earlierevents constitute the relevant entries for the permanent court record). This isdone to facilitate more timely conveying of the consequences in writing.For completeness, enquiries have been made of the Judge in this case whosigned the notice, and the Judge does not recollect the matter.District Court file retention policy[43] This Court asked counsel to ascertain whether the physical District Court filesin this case have been destroyed and if so how long are District Court files retainedbefore they are destroyed.[44] Ms Rope advises that the formal court record is retained permanently inthe District Court.[45] However as regards the physical District Court files, the Ministry has beenauthorised since 2013 to dispose of them under a disposal authority endorsed bythe relevant Heads of Bench and the Chief Archivist.[46] The minimum retention period for District Court criminal files is ten years aftercase completion.[47] When Mr Muraahi's files were requested in November 2019, the ten-yearperiod had not expired. However despite an extensive search, the files were not ableto be located. The fact the files are missing has been attributed to poor file27 At [34].management practices at the relevant court. There is no evidence they have beendestroyed.Information held by the Department of Corrections[48] When the Department of Corrections receives a prisoner, a file is normallycreated. This Court asked whether the department had been asked to search its filesrelating to Mr Muraahi.[49] Ms Rope reports that upon request the Department of Corrections has provideda copy of a notice of consequences of first warning dated 15 October 2010. The noticehas been signed by Judge Winter and according to a statement of service was servedon Mr Muraahi at the prison on 24 August 2011. A signature which purports to be thatof Mr Muraahi appears alongside a statement acknowledging receipt of the notice.[50] The existence of this document was not known to Peters J. Had it been broughtto her attention, the Judge is unlikely to have made the finding that there wasinsufficient evidence of Mr Muraahi ever being given a notice of consequences inrelation to the 2010 offending.Information obtained after the appeal hearing[51] After the appeal hearing, we obtained a copy of a minute from the courts'document management system. The minute, which is dated 19 November 2014 anddescribed as a minute of Judge McNaughton, reads:28[1] Mr Muraahi, I am doing this because the Judge who sentenced you isnot in the building. Given your conviction for aggravated robbery you arenow subject to the three strikes law. This is now your final warning whichwill explain the consequences of another serious violence conviction. Youwill also be given a notice outlining these consequences and a list of whatthe serious violent offences are.28 R v Muraahi DC Manukau CRI-2014-092-4111, 19 November 2014 (Minute ofJudge McNaughton).[2] Firstly, if you are convicted of any serious violent offence, other thanmurder or manslaughter, then you will be sentenced to the maximum term ofimprisonment for each offence. That will be served without parole or earlyrelease unless it would be manifestly unjust. If you came back beforethe Court on an aggravated robbery, which has a maximum penalty of14 years, that would be the sentence, 14 years' imprisonment. That is whatthat means.[3] Secondly, if you are convicted of manslaughter committed after thiswarning you will be sentenced to imprisonment for life. The Judge must orderyou to serve at least 20 years' imprisonment, unless the Judge considers itwould be manifestly unjust to do so, in which case the Judge must order youto serve a minimum of at least 10 years' imprisonment. Again what this meansis life imprisonment is the maximum for manslaughter, and if you wereconvicted of manslaughter that would be the penalty imposed, life.[4] If you are convicted of murder after this warning then you must besentenced to imprisonment for life. The Judge must order you to serve thissentence without parole unless it would be manifestly unjust to do so, and ifthe Judge finds it is manifestly unjust to do so then the Judge must imposea minimum period of imprisonment of at least 20 years, unless that would bemanifestly unjust in which case the Judge must sentence you to a differentminimum period of imprisonment.[5] If you are sentenced to preventive detention you must servethe maximum term of imprisonment of the most serious offence you areconvicted of, unless a Judge considers that would be manifestly unjust.[52] The existence of this document was obviously also not known to Peters J.As Ms Jayanandan points out, it is not signed by Judge McNaughton. However whencombined with the notice of consequences that was signed by Judge McNaughton, weconsider it likely that had the minute been brought to her attention, Peters J would nothave made the finding there was insufficient evidence of the oral warning not beingtranscribed in 2014.Arguments on appealThe Crown's position[53] The Crown's position is that on a correct interpretation of the legislation,the written notice of consequences is not a warning in itself. That is not its intendedpurpose or function. At best, it as an aide memoire for the offender. The failure togive it or the inability to prove that it has been given does not invalidate or renderimperfect the record of an oral warning.[54] The Crown acknowledges the two previous decisions R v Patel and R v Allenrelied on by Peters J. However, it submits that in Patel the need for a dual warningwas not a contested issue and therefore there was no analysis. As regards Allen,the Crown accepts the Judge in that case did engage in analysis but contends it wasbased on a misinterpretation of the relevant provisions.[55] In relation to the requirement for a record of the warning, the Crown submitsthat production of the transcript of the oral warning is not necessary. By the timethe need for proof of the giving of an oral warning arises, it would likely be difficultif not impossible to obtain a transcript. The provisions were designed to avoid thispractical difficulty by making it clear that the "record of warning" means onlythe court's entry of a record that the offender was given an oral warning. Nothingmore is required.Mr Muraahi's position[56] Counsel for Mr Muraahi however submit that Peters J was correct to followthose previous decisions and require proof of both an oral and a written warning.They also cite another High Court judgment to the same effect. In R v King Whata Jheld that without satisfactory evidence the offender was given a written notice ofconsequence for a previous strike offence, the Court must proceed on the basis that thestatutory requirements were not met and thus the strike warning was invalid.29Counsel further submit we should answer the question of law posed by the Crown onthe basis of the information that was before Peters J , rather than the additionalinformation obtained subsequently.[57] In support of their central contention of a dual oral/written requirement,counsel essentially relied on the reasoning in R v Allen.30 They emphasisedthe importance of the offender understanding the effect of the warning, especiallygiven the potentially draconian consequences for them. An oral warning on its ownwas not sufficient for the full import of the warning to be understood and therefore notsufficient to deter the offender from future offending as intended by Parliament.29 R v King [2019] NZHC 537 at [40]–[44].30 R v Allen, above n 21, at [33]–[35].Most offenders are nervous and anxious during sentencing hearings. It isan emotionally charged time and it was not realistic to suggest that an offender is ina position to be able to take in everything that is said.[58] Counsel urged a rights consistent interpretation of the legislation and furtherpointed out that as a matter of language and logic the offender can only be said to havebeen warned of the consequences of re-offending, if they are told of the 40 offencesthat qualify as a serious violent offence. The list is an extensive one. It covers a widespectrum of offences including offences that might not immediately spring to mind asa serious violent offence. Reading out the list was not done for obvious reasons atsentencing and so for an offender the only practical means of knowing what thoseoffences are is to be given the written notice.[59] Finally, for completeness we note that the fact the warnings in this case appearto have been given at sentencing rather than on conviction as contemplated bythe legislation was not an issue before the High Court or us.Analysis[60] We have carefully considered the arguments advanced on behalf ofMr Muraahi but in our view the structure and wording of the relevant provisions issuch that it permits of no other interpretation than the one advanced by the Crown.[61] The full text of ss 86B and 86C reads as follows:86B Stage-1 offence: offender given first warning(1) When a court, on any occasion, convicts an offender of 1 or morestage-1 offences, 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-1 offence for which theoffender is being convicted); and(b) record, in relation to each stage-1 offence, that the offenderhas been warned in accordance with paragraph (a).(2) It is not necessary for a Judge to use a particular form of words ingiving the warning.(3) On the entry of a record under subsection (1)(b), the offender has, inrelation to each stage-1 offence (for which a record is entered), arecord of first warning.(4) The court must give the offender a written notice that sets out theconsequences if the offender is convicted of any serious violentoffence committed after the warning given under subsection (1)(a).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 whichthe offender is being convicted); and(b) record, in relation to each stage-2 offence, that the offenderhas been warned in accordance with paragraph (a).(2) It is not necessary for a Judge to use a particular form of words ingiving the warning.(3) On the entry of a record under subsection (1)(b), the offender has, inrelation to each stage-2 offence for which a record is entered, a recordof a final warning.(4) If the sentence imposed on the offender for any stage-2 offences isa determinate sentence of imprisonment, the court must order thatthe offender serve the full term of the sentence and, accordingly, thatthe offender,—(a) in the case of a long-term sentence (within the meaning ofthe Parole Act 2002), serve the sentence without parole; and(b) in the case of a short-term sentence (within the meaning ofthe Parole Act 2002), not be released before the expiry ofthe sentence.(5) If the sentence imposed on the offender for 1 or more stage-2 offencesis a short-term sentence (within the meaning of the Parole Act 2002)and any conditions are imposed on the offender under section 93, then,despite anything in that section, those conditions take effect onthe sentence expiry date (within the meaning of the Parole Act 2002).(6) If, but for the application of this section, the court would have ordered,under section 86, that the offender serve a minimum period ofimprisonment, the court must state, with reasons, the period that itwould have imposed.(7) The court must give the offender a written notice that sets out theconsequences if the offender is convicted of any serious violentoffence committed after the warning given under subsection (1)(a).[62] The scheme of the provisions is that the giving of the warning and the recordingof it must happen at the same time. It is at that point, as subs (3) of both s 86B ands 86C makes clear, that the offender has a record of first or final warning as the casemay be. That is important because of the definition of stage-1 and stage-2 offences.It will be recalled that the existence of a record of a warning is part of the definition.[63] What then constitutes the recording or record required by ss 86B(1)(b) and86C(1)(b) respectively? In our view, that is effected in the District Court by the Judgerecording on the charging document that the warning has been given. A permanentrecord of the warning will subsequently be created when the information on thecharging document is entered into the Ministry's CMS system and is then able to begenerated in an offender's criminal and traffic history. This record held by CMS willgenerally be sufficient evidence that an oral warning was in fact given as CMS isdesigned to reflect the permanent court record and has been developed with businessrules aimed at ensuring data entry is both accurate and compliant with legislation.The fact that a permanent record is entered into CMS contemporaneously bya Deputy Registrar who is present at the hearing further supports this position.[64] We acknowledge the importance of the notice of consequence for the reasonsidentified by Ms Jayanandan in this case and Judge Harvey in R v Allen.31 We alsoacknowledge that the legislation uses the word "must" in connection with the givingof the notice. But of itself the fact the giving of the notice is mandatory does not meanthe notice is part of the warning or that the warning is somehow invalidated or notcomplete unless and until the notice is given. Having regard to the precedingsub-sections, if that were Parliament's intention, clearer words would have been usedto link the notice to the record of wording. The two are however clearly anddeliberately separated and distinct.[65] It follows in our view that the phrase "record of warning" is only capable ofbeing interpreted as a record of the fact that an oral warning has been given. We would31 See also the observations made by this Court in Do v Police, above n 21, at [14].also add that contrary to the view taken in R v Allen, such an interpretation does notrender the requirement of a written notice "otiose".32 Or to put it another way, in orderto give meaning to the statutory duty, it is not necessary for the oral warning to bevitiated. The very fact of the existence of a duty is in itself meaningful and givesexpression to Parliament's intention the offender be given information and theimportance it placed on that.[66] We acknowledge that during the passage of the legislation in the House,Hansard records parliamentarians including the then Minister of Police andCorrections as explaining that offenders will be warned both verbally and in writing.33However any significance that might be attached to those statements is far outweighedby the text and other aspects of the legislative history.[67] The three strikes regime was inserted into the Sentencing Act by the Sentencingand Parole Reform Act 2010. When the Bill that was to become the Sentencing andParole Reform Act was first introduced, it did not contain any provision requiring theoffender to be served with a written notice. The inclusion of such a requirement wasrecommended at the select committee stage in response, it appears, to advice providedto it in the relevant Departmental Report.34 The Report was provided by theNew Zealand Police.35[68] The Report noted that when a court makes an order or decision relating toan offender, it is usual practice to provide the offender with something in writingoutlining what has just happened. It went on to say that at present the Bill did notrequire anything in writing to be provided to the offender in relation to a first or finalrecorded warning, although it was always intended this would happen operationally.36[69] Officials recommended that a provision be inserted into the Bill requiringan offender who receives a first or final warning to be given a written notice to thiseffect, observing that "[a]s the notice is essentially a courtesy, failure to provide32 R v Allen, above n 21, at [25].33 (25 May 2010) 663 NZPD 11227.34 Sentencing and Parole Reform Bill 2009 (17-2) (select committee report) at 5.35 New Zealand Police Sentencing and Parole Reform Bill: Departmental Report (12 March 2010).36 At [305].the notice should not invalidate the warning".37 The Report further stated that thenotice would either be given to the offender before he or she leaves the court or at theprison in the event of a custodial sentence or posted to their home.38[70] The Select Committee recommendation was for an amendment "to requirea Court to give an offender a written notice of warning setting out the substance of thewarning that has been issued in the Court".39[71] The Bill was then amended by including a requirement that at the same timeas the court issued the oral warning, it must also provide a written notice setting outthe substance of the warning:40"86B Stage-1 offence: offender given first warning"(1) When a court, on any occasion, convicts an offender of 1 or morestage-1 offences, the court must—"(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-1 offence for whichthe offender is being convicted); and"(b) give the offender a written notice that sets out the substanceof the warning given to the offender under paragraph (a);and"(c) record, in relation to each stage-1 offence, that the offenderhas been warned in accordance with paragraph (a)."(2) It is not necessary for a Judge to use a particular form of words ingiving the warning."(3) On the entry of a record under subsection (1)(c), the offender has,in relation to each stage-1 offence (for which a record is entered),a record of first warning."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—37 At [306].38 At [307].39 Select committee report, above n 34, at 5.40 Sentencing and Parole Reform Bill 2009 (17-2), cl 5(1)."(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 whichthe offender is being convicted); and"(b) give the offender a written notice that sets out the substanceof the warning given to the offender under paragraph (a);and"(c) record, in relation to each stage-2 offence, that the offenderhas been warned in accordance with paragraph (a)."(2) It is not necessary for a Judge to use a particular form of words ingiving the warning."(3) On the entry of a record under subsection (1)(c), the offender has, inrelation to each stage-2 offence for which a record is entered, a recordof final warning.[72] Had this remained the ordering of the sub-sections, then the argument forMr Muraahi might have been stronger although even then the record of first or finalwarning remained defined as a record kept by the court of the fact an oral warning hadbeen given.[73] However as the result of a Supplementary Order Paper, the requirement toprovide a written notice was removed from the list of things that must be done on anoffender's conviction for a stage-1 or stage-2 offence. There was no longer to be anyspecified time for service of the notice and it was relegated to the last sub-section as itappears now in the Sentencing Act, thereby further underscoring that the notice is notpart of the warning nor is it part of the recording of the warning.41[74] The explanatory note to the supplementary order paper relevantly states that it"separates the written warning given to offenders from the oral warning administeredby a Judge to permit forms for written warnings to be prescribed by regulations". 42Significantly, the form that was ultimately prescribed is not entitled "Notice ofWarning" but rather "Notice of consequences of first warning". That is to say, it is anotice dealing with something that has already been effected or completed.41 See Sentencing and Parole Reform Bill 2009 (17-3).42 Supplementary Order Paper 2010 (123) Sentencing and Parole Reform Bill 2009 (17–3)(explanatory note) at 3.[75] In R v Allen, Judge Harvey relied on the fact that in the Child Protection(Child Sex Offender Government Agency Registration) Act 2016 (the ChildProtection Act), there is a provision which expressly states that failure to givea mandatory explanation to an offender does not affect the validity of the sentence ororder or the offender's reporting obligations. The Judge reasoned that if Parliamenthad intended the same result in relation to a failure to give the required notice underthe Sentencing and Parole Reform Act, it would have been an easy matter for it to havesaid so. The absence of a similar provision in the Sentencing and Parole Reform Actwas the Judge considered significant.43[76] However, this reasoning overlooks that the provision underthe Child Protection Act is concerned with the very different context of a mandatoryexplanation that is required to be given by the Judge in open court when sentencing.In those circumstances, if Parliament did not intend the failure to vitiate the sentence,it was obviously necessary for it to say so. Further, the same section contains a postsentence notice requirement under which the Registrar of the court must give writtennotice to the offender of their reporting obligations. The notice requirement ismandatory as in the legislation at issue in this case.44 And like the post sentence noticerequirement in this case, there is no express provision about the consequences offailing to serve the notice.[77] It follows that in our view, if anything, the provisions in the Child ProtectionAct support the Crown's interpretation rather than the other way around.[78] For all these reasons, we conclude that both parts of the question of law mustbe answered in the affirmative.[79] That then gives rise to the question of whether Mr Muraahi should now bere-sentenced. The Crown's application for leave to appeal asked for that to be done inthe event this Court considered the Judge's sentencing decision was erroneous.However, at the hearing, Ms Brook indicated this was not the Crown's primary focusor purpose in bringing the appeal. Further, as she pointed out, the 13-year sentence43 R v Allen, above n 21, at [26]–[29].44 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 12.that was imposed on Mr Muraahi was only one year less than the maximum penaltyprescribed for aggravated robbery anyway. The Crown did not therefore stronglyadvocate for a re-sentencing.[80] Under s 180 of the Criminal Procedure Act, we have a discretion whether ornot to correct an erroneous decision by imposing a new sentence. In allthe circumstances, and in light of the position taken by the Crown, we have decidednot to exercise that power.Outcome[81] The application for leave to appeal on a question of law under s 296 ofthe Criminal Procedure Act is granted.[82] We answer the questions of law submitted for determination as follows:(1) Does the giving of a warning under s 86B or s 86C of the Sentencing Act2002 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 offenderunder s 86B of the Sentencing Act 2002 made in error?Answer: Yes[83] We decline to order a re-sentencing of the respondent.Solicitors:Crown Law Office, Wellington for Appellant