Police v Maipiara (aka Murphy) [2012] NZHC 690; (2012) 25 CRNZ 662 (16 April 2012)

Last Updated: 16 May 2012

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2011-488-83 [2012] NZHC 690

BETWEEN THE POLICE Appellant

AND POUTAMA MAIPIARA (AKA) MURPHY Respondent

Hearing: 20 February 2012

Appearances: M Smith and M Jarman-Taylor for appellant

A B Fairley for respondent

Judgment: 16 April 2012

_{JUDGMENT OF ALLAN J}

Solicitors:

Crown Solicitor Whangarei

_{Thomson Wilson, Whangarei}

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

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

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

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

Legislative background

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

[5] Upon entering a first conviction for a serious violent offence (a stage-one offence), the Court must warn the offender of the consequences should he or she be

_{convicted of a further serious violent offence.}1 _{No particular form of words is}

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

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

notice setting out these consequences in writing.4

[6] Upon entering a second conviction for a serious violent offence (a “stage-two offence”), the Court must, in addition to imposing a sentence in accordance with the regime, again warn the offender of the consequences should he or she subsequently be convicted of a further serious violent offence.5 Those consequences include a requirement that, upon a third conviction, an offender must be sentenced to the maximum available term of imprisonment and serve that sentence in full (although

this latter requirement may be waived if the Court considers ineligibility for parole to be manifestly unjust).6

[7] The key provision for present purposes is the definition of “serious violent offence” in s 86A of the Act, which provides:

86A Interpretation

In this section and in sections 86B to 86I, unless the context otherwise requires,—

...

serious violent offence means an offence against any of the following provisions of the Crimes Act 1961:

(1)section 128B (sexual violation):

(2)section 129 (attempted sexual violation and assault with intent to commit sexual violation):

(3)section 129A(1) (sexual connection with consent induced by threat): (4)section 131(1) (sexual connection with dependent family member under

18 years):

2 _{Sentencing Act 2002, s 86B(2).}

3 _{Sentencing Act 2002, s 86C(4).}

4 _{Sentencing Act 2002, s 86B(4).}

5 _{Sentencing Act 2002, s 86C(1).}

6 Sentencing Act 2002, s 86D(2) & (3).

(5)section 131(2) (attempted sexual connection with dependent family member under 18 years):

(6)section 132(1) (sexual connection with child):

(7)section 132(2) (attempted sexual connection with child): (8)section 132(3) (indecent act on child):

(9)section 134(1) (sexual connection with young person):

(10)section 134(2) (attempted sexual connection with young person): (11)section 134(3) (indecent act on young person):

(12)section 135 (indecent assault):

(13)section 138(1) (exploitative sexual connection with person with significant impairment):

(14)section 138(2) (attempted exploitative sexual connection with person with significant impairment):

(15)section 142A (compelling indecent act with animal):

(16)section 144A (sexual conduct with children and young people outside

New Zealand):

(17)section 172 (murder): (18)section 173 (attempted murder):

(19)section 174 (counselling or attempting to procure murder): (20)section 175 (conspiracy to murder):

(21)section 177 (manslaughter):

(22)section 188(1) (wounding with intent to cause grievous bodily harm): (23)section 188(2) (wounding with intent to injure):

(24)section 189(1) (injuring with intent to cause grievous bodily harm): (25)section 191(1) (aggravated wounding):

(26)section 191(2) (aggravated injury):

(27)section 198(1) (discharging firearm or doing dangerous act with intent to do grievous bodily harm):

(28)section 198(2) (discharging firearm or doing dangerous act with intent to injure):

(29)section 198A(1) (using firearm against law enforcement officer, etc):

(30)section 198A(2) (using firearm with intent to resist arrest or detention): (31)section 198B (commission of crime with firearm):

(32)section 200(1) (poisoning with intent to cause grievous bodily harm): (33)section 201 (infecting with disease):

(34)section 208 (abduction for purposes of marriage or sexual connection): (35)section 209 (kidnapping):

(36)section 232(1) (aggravated burglary): (37)section 234 (robbery):

(38)section 235 (aggravated robbery):

(39)section 236(1) (causing grievous bodily harm with intent to rob or assault with intent to rob in specified circumstances):

(40)section 236(2) (assault with intent to rob).

[8] The respondent’s offending fell within s 188(2) of the Crimes Act 1961. The question for the Court is whether the offence of wounding with reckless disregard under s 188(2) is a “serious violent offence” for the purposes of s 86A of the Act, notwithstanding the fact that that particular offence is not mentioned by name in the definition of “serious violent offence”.

[9] The argument for the appellant is that it is included by necessary implication by reason of the express reference in the definition of the term “serious violent offence” to s 188(2), under which the charge was laid.

The District Court proceedings

[10] The respondent was charged with wounding with reckless disregard for the safety of others, intentional damage, threatening to kill and male assaults female. He pleaded guilty to all but the wounding charge on 1 September 2011. A guilty plea was entered to that charge on 12 September 2011, and the respondent was remanded to 2 December 2011 for sentencing. At that time, the presiding Judge noted on the Court file “three strikes warning to be given at sentence”.

[11] Both sides filed written submissions prior to sentencing on 2 December. The prosecution submissions identified the charge of wounding with reckless disregard as a “serious violent offence” for the purposes of the three strikes regime. The submissions filed on behalf of the respondent were silent on the point.

[12] For the purposes of this appeal, the appellant has arranged for the oral submissions to be transcribed. They commenced with a question from the Judge:

Is that the bit of paper that I have to read to this man; three strikes warning? Right, I have it now.

[13] The Judge then called on counsel for the police to present her oral submissions, during the course of which only passing reference was made to the applicability of the three strikes regime. Mr Smith observes that no significant attention by counsel on the point appeared necessary, having regard to the Judge’s earlier comment.

[14] Mr Leader, counsel for the respondent in the District Court, then addressed the Court. He made no reference to the applicability of the regime.

[15] Following the conclusion of counsels’ submissions, the following passage

appears in the transcript:

THE COURT ...Well, the only matter that I raise really has little to do with Mr Maipiara, is that I don’t consider the three strike legislation applies to this offence, s 188(2) in the legislation –

MR LEADER: But that’s in the schedule isn’t it Sir?

THE COURT: Is wounding with intent to injure. It’s not wounding with intent to injure or reckless, and I’ve given a decision, I think Mr Stevens was there, saying that I don’t consider as a matter of law that the warning is required to be given when the charge is recklessly – reckless disregard. It really impacts upon the Crown more than you Mr Leader – because you probably don’t want it give to him because –

MR LEADER: That’s right, I did look at that, but didn’t raise it.

_{THE COURT: And there is a Grey in Napier followed my decision.}7

7 Counsel for the appellant advises that this appears to be a transcription error. Inquiries of the Ministry of Justice and the Napier Crown Solicitor have failed to identify any case by the name Grey (or similar) to which Judge McDonald could have been referring. It is likely that the Judge was referring to Judge Rea, who is based in Napier and who did follow, in R v Ward DC Napier CRI

MR LEADER: I’m in Your Honour’s hands.

THE COURT: Ms Jarman-Taylor do you want to argue it afresh?

MS JARMAN-TAYLOR: I’d have to have a copy of the legislation in front

of me if I were to do that Sir, but –

THE COURT; It’s here, it’s in the legislation where it lists serious violence offences and under s 188(2) it’s got wounding with intent to injure, which is an actual intention of the offender to wound, so therefore is a serious violent offence.

MS JARMAN-TAYLOR: Yes Sir. It’s accepted for example in Taueki and those sorts of decisions the Court does talk about aligning offences where the intent aligns with the injury that was caused. So –

THE COURT; And this is a reckless, you see? MS JARMAN-TAYLOR: Member, agreed.

THE COURT: So I don’t propose to give the warning, but I thought I’d

better alert you because you might have wondered why I’m not.

[16] Although Ms Jarman-Taylor, who appeared for the police at sentencing, was given an opportunity to argue the question of whether a warning was required or not, she had been taken by surprise and was not in a position to advance a comprehensive case. Thereafter, the Judge proceeded with the sentencing process without giving any warning.

The offending

[17] On 6 August 2011, the respondent, aged 19 years, became extremely drunk while at his mother’s house. He became aggressive towards her and swung his fist into a glass door, shattering it. He then picked up a piece of broken glass, waved it around in a slashing manner, and told his mother that he was going to kill her. In trying to defend herself, the respondent’s mother put up her hand defensively. During the course of a slashing movement, the respondent cut his mother on the hand, resulting in a deep wound to her fingers. He then kneed her in the right side of her body. The Judge considered a range of sentencing factors and concluded that the

_{appropriate sentence was four months community detention, together with 175 hours}

2010-041-002, 003, 19 August 2011. an earlier decision of Judge McDonald R v Pevats DC Whangarei CRI-2010-088-4055, 6 April 2011, where the Judge had also refused to give a first strike warning on a guilty plea to a charge of wounding with reckless disregard for the safety of others. There was no appeal from that judgment.

community work and 12 months supervision. He was directed to pay reparation to the Housing Corporation of about $400.

[18] In passing, it is worth noting that, although Judge McDonald expressly refused to give a three strikes warning, it seems he did subsequently sign a Notice of Consequences of First Warning, which was served on the respondent, but it is common ground that service of the notice did not of itself satisfy the requirements of s 86B of the Act. In any event, it seems that steps were taken to recall the notice in January 2012.

District Court authorities

[19] As I have noted, Judge McDonald has on two occasions declined to give a three strikes warning in circumstances where counsel for the Crown says it should have been given. Neither was a warning given in three Napier cases, even though the offences appeared to fall within the s 86A definition. I have already referred to Ward, which involved a charge of wounding with reckless disregard. The other two

cases were decisions of Judge Adeane in R v Allen,8 and R v Mason.9 Each of those

cases also involved charges of wounding with reckless disregard. In none of the three Napier cases was the question of a three strikes warning mentioned.

[20] The researches of counsel for the appellant reveal that warnings were given in several similar District Court cases. So there appears to be a difference in approach in the District Court.

[21] Mr Smith submits, correctly, that urgent clarification is needed. If an offender has not been given a warning when one was required, that offender will not be subject to the additional consequences upon a subsequent conviction for a serious violent offence, despite Parliament’s clear intention that such consequences should

_{be mandatory.}

8 _{R v Allen DC Napier CRI-2011-020-720, 1 September 2011.}

9 R v Mason DC Napier CRI-2011-020-2199, 1 September 2011.

[22] On the other hand, if an offender has been given a warning when none was needed, and has not taken steps to have the error corrected (or is simply unaware of the error), he or she must still be treated as a stage two offender, should he or she later be convicted of a serious violent offence. In those circumstances, it appears that the only remedy for an offender, other than to seek to have the conviction quashed, would be to apply to have an erroneous sentence corrected pursuant to s

372 of the Crimes Act 1961.

Discussion

[23] The issue is whether the references in s 86A of the Act to descriptive offence summaries, following individual section numbers, circumscribe the ambit of the section.

[24] Section 188(2) of the Crimes Act provides:

(2) Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to injure anyone, or with reckless disregard for the safety of others, wounds, maims, disfigures, or causes grievous bodily harm to any person.

[25] It is to be observed that the subsection provides for a number of alternative offences beyond that of wounding with intent to injure (specifically mentioned in the text of s 86A), and wounding with reckless disregard (of which the respondent was convicted in this case), although these two are possibly the most commonly charged. A number of other offences may be charged under the subsection, namely:

(a) maiming with intent to injure;

(b) maiming with reckless disregard; (c) disfiguring with intent to injure;

(d) disfiguring with reckless disregard;

(e) causing grievous bodily harm with intent to injure; and

(f) causing grievous bodily harm with reckless disregard.

[26] I accept Mr Smith’s submission that, on the face of it, it makes no sense for Parliament to have placed wounding with intent to injure inside the statutory definition in s 86A, but to have left grievous bodily harm with intent to injure outside it. Similarly, s 86A refers to s 188(1) offending, as “wounding with intent to cause grievous bodily harm”. On the strict approach adopted by Judge McDonald, offences of maiming, disfiguring or causing grievous bodily harm with intent to cause grievous bodily harm would be omitted from the s 86A list. This last offence is commonly charged

[27] Numerous other examples may be identified. Section 174 of the Crimes Act makes provision for cases in which an offender “incites, counsels or procures ... murder” The s 86A reference to s 174 would, on the strict approach, confine the application of the three strikes regime to cases of counselling or attempting to procure murder, while leaving incitement to murder outside the regime.

[28] Another useful example is s 191, which provides:

191 Aggravated wounding or injury

(1) Every one is liable to imprisonment for a term not exceeding 14 years who with intent—

(a) To commit or facilitate the commission of any crime; or

(b) To avoid the detection of himself or of any other person in the commission of any crime; or

(c) To avoid the arrest or facilitate the flight of himself or of any other person upon the commission or attempted commission of any crime—

wounds, maims, disfigures, or causes grievous bodily harm to any person, or stupefies or renders unconscious any person, or by any violent means renders any person incapable of resistance.

(2) Every one is liable to imprisonment for a term not exceeding 7 years who, with any such intent as aforesaid, injures any person.

[29] The section title, or marginal note, reads “aggravated wounding”, but the

section provides for a number of separate offences. If a strict approach to the regime

is maintained, then an offender who maims, disfigures or causes grievous bodily harm to any person, or stupefies or renders unconscious any person, or by any violent means renders any person incapable of assistance, will fall outside the s 86A list. It is difficult to accept that Parliament intended such a random outcome which failed to catch a great many serious violent offences for which a maximum penalty of 14 years imprisonment is prescribed. Moreover, s 191 would produce the curious result that the lesser offence of injuring with the requisite intent (carrying a maximum penalty of seven years imprisonment), would be caught, while the more serious offences (carrying 14 years imprisonment) would not.

Parliamentary materials

[30] Some indication of Parliamentary intention may sometimes be gleaned from explanatory notes or other materials, but there is nothing in the Parliamentary records to suggest that the Legislature intended to limit the scope of the provisions by inserting the shorthand references next to the section numbers in s 86A. Some assistance however, is to be derived from the departmental report on the Bill to the Law and Order Committee, where the following appears:10

The list of offences was drafted to include all the major violent and sexual offences with a maximum penalty of seven years imprisonment or more. This threshold was selected because the government’s worst repeat violent offender policy was intended to apply to offenders who had served a previous sentence of five years or more. In order for a sentence of that length to be imposed, the maximum penalty for the offence will usually be at least seven years or more. Sexual offences were included in the Bill as they are regarded as violent offences that have a significant impact on the victim whether or not they involve a physical assault.

[31] It seems therefore that there was a general intention that the list in s 86A would cover all offences for which the penalty was at least seven years imprisonment. If that is so (and one could understand the legislative approach), the question remains whether the language actually adopted by Parliament has achieved

_{Parliament’s apparent underlying purpose.}

10 At [125].

Section 87 Sentencing Act 2002

[32] It is helpful to consider, as counsel for the appellant has done, other situations in which Parliament has grouped together, or classified, certain offences for a particular purpose. Section 87 of the Act contains a list of offences for preventive detention purposes in which, using a somewhat less ambiguous technique, the qualifying offences are described in the following manner:

... a qualifying sexual or violent offence means—

(a) a sexual crime under Part 7 of the Crimes Act 1961 punishable by 7 or more years' imprisonment; and includes a crime under section

144A or section 144C of that Act; or

(b) an offence against any of sections 171, 173 to 176, 188, 189(1), 191,

198 to 199, 208 to 210, 234, 235, or 236 of the Crimes Act 1961.

[33] Plainly, wounding with reckless disregard is caught by s 87. I agree with the appellant that to exclude it from s 86A is somewhat anomalous. The only offences which are caught by s 87, but excluded from s 86A, are incest (s 130 of the Crimes Act), the grooming offences (s 131B), bestiality (s 143), organising or promoting child sex tours (s 144C), being an accessory after the fact to murder (s 176), acid throwing (s 199), and abduction of a young person under the age of 16 (s 210).

[34] Of these, incest and acid throwing were originally on the list which became s 86A, but were deleted by the Select Committee on the basis that incest was usually only charged where sexual conduct was consensual (otherwise sexual violation or sexual conduct with a child or young person would be charged), and acid throwing was very rarely charged at all (aggravated wounding, which was on the list, being available as an alternative).

[35] It is more difficult to assign reasons for the omission of the remaining offences from the ambit of s 86A, although as counsel for the appellant submits, bestiality usually involves mental health issues, and grooming and child sex tour offences may have been omitted inadvertently because they are relatively new. There is no obvious reason why s 86A should otherwise exclude so many of the offences that are caught by s 87.

[36] Judge McDonald thought that the answer was to be found in the assessment of intent, so that intentional offences would be caught, but not those simply involving recklessness. But that cannot be the explanation. For example, s 177 (manslaughter) is included. Many cases of manslaughter involve recklessness, as in this case.

Section 2 Criminal Justice Act 1985

[37] Further assistance is to be derived from the manner in which s 2 of the Criminal Justice Act 1985 defines the term “serious violent offence” for the purpose of determining whether a minimum period of imprisonment might be imposed for offending committed prior to the commencement of the Act. The definition in the

1985 Act was also relevant to post sentence issues such as parole and release dates prior to the commencement of the Act.

[38] The definition of the term “serious violent offence” in s 2 of the Criminal

Justice Act, provides as follows:

Serious violent offence means an offence against any of the following provisions of the Crimes Act 1961 in respect of which a determinate sentence of more than 2 years imprisonment is imposed on the offender:

(a) Section 128 (sexual violation): (b) Section 171 (manslaughter):

(c) Section 173 (attempt to murder):

(d) Section 188(1) (wounding with intent to cause grievous bodily harm):

(e) Section 188(2) (wounding with intent to injure):

(f) Section 189(1) (injuring with intent to cause grievous bodily harm): (g) Section 189(2) (injuring with intent to injure):

(h) Section 198A (using a firearm against law enforcement officer, etc): (i) Section 198B (commission of crime with firearm):

(j) Section 234 (robbery):

(k) Section 235 (aggravated robbery):

[39] It will be observed that the definition in the 1985 Act adopted the same technique as in s 86A of the Act, in that it listed a number of sections and then provided a summary description of the type of offending to which those sections relate. It is not unduly speculative to suggest that the drafting technique adopted in s 86A drew on the former definition section.

[40] The Criminal Justice Act also included a provision, s 75, now repealed, defining qualifying offences for preventive detention purposes. The repealed list was carried through (with additions) to become the list in s 87 of the Act. It read:

[4] For the purposes of this section the expression specified offence means,—

(a) If committed against a child under the age of 16 years at the time of the commission of the offence,—

(i) Any offence against any of sections 130 to 134 and

140 to 142 of the Crimes Act 1961; or

(ii) An attempt to commit an offence against section 142 of that Act:

(b) If committed against any person, whether or not a child under the age of 16 years at the time of the commission of the offence,—

(i) Any offence against any of sections 128, 129, 142A,

173, 188, 189(1), 191, and 199 of that Act; or

(ii) An attempt to commit an offence against section

142A or section 188(1) of that Act.

[41] Interestingly, this provision simply refers to the numbered provisions, without any shorthand references, and in particular refers to s 188 without limitation. I agree with counsel for the appellant when he submits that it is somewhat odd that the Criminal Justice Act used both forms of listing of the specified provisions (with and without shorthand references). I accept also counsel’s further submission that the fact that two quite separate drafting techniques were used in the Criminal Justice Act may explain why, in the Act, the qualifying list for preventive detention omits any shorthand references, while the s 86A list includes them.

[42] The expression “serious violent offence” is also defined in s 312A of the Crimes Act, for the purpose of conferring on the Court jurisdiction to grant interception warrants. The definition in s 312A is:

Serious violent offence means any offence—

(a) That is punishable by a period of imprisonment for a term of 7 years or more; and

(b) Where the conduct constituting the offence involves—

(i) Loss of a person's life or serious risk of loss of a person's life; or

(ii) Serious injury to a person or serious risk of serious injury to a person; or

(iii) Serious damage to property in circumstances endangering the physical safety of any person; or

(iv) Perverting the course of justice, where the purpose of the conduct is to prevent, seriously hinder, or seriously obstruct the detection, investigation, or prosecution of any offence—

(A) That is punishable by a period of imprisonment for a term of 7 years or more; and

(B) That involved, involves, or would involve conduct of the kind referred to in any of subparagraphs (i) to (iii):

[43] No distinction is drawn between wounding with intent to injure and wounding with reckless disregard in the context of interception warrant applications. Either will qualify as long as serious injury was either caused or risked.

Section 10 Bail Act 2000

[44] A further list of qualifying offences appears in s 10 of the Bail Act 2000. Bail restrictions are imposed on an offender who has committed a qualifying specified offence. Section 10(2) provides:

Restriction on bail if defendant with previous conviction for specified offence charged with further specified offence

...

(2) In this section, specified offence means any offence against any of the following provisions of the Crimes Act 1961:

(a) section 128B (sexual violation): (b) section 167 (murder):

(c) section 168 (murder):

(d) section 171 (manslaughter):

(e) section 173 (attempt to murder):

(f) section 188 (wounding with intent): (g) section 189 (injuring with intent):

(h) section 191 (aggravated wounding or injury):

(i) section 198A (using any firearm against law enforcement officer, etc):

(j) section 198B (commission of crime with firearm): (k) section 234 (robbery):

(l) section 235 (aggravated robbery).

[45] This list is similar to, but slightly shorter than, the definition of serious violent offence in s 2 of the Criminal Justice Act. It is to be noted however, that the shorthand references beside the section numbers are simply the titles of the provisions from the Crimes Act in each case. There is no attempt to provide a more comprehensive explanation than that.

[46] Section 10(2) was the subject of consideration by Venning J in Tui v Police.11

There, the Judge commented, obiter, that the reference to wounding with intent (in s 10(2)) “... is simply the identifier for the section in its entirety and an offence under s 188(2) would be caught by it”.12 Counsel for the appellant indicates that

_{there appear to have been no other decisions on the ambit of s 10(2).}

11 _{Tui v Police HC New Plymouth CRI-2009-443-3, 12 February 2009.}

12 At [4].

[47] As a matter of more general statutory interpretation, section titles or marginal notes can be helpful aids to construction but as Burrows notes, they should be treated with caution.13

However, it must be remembered that these headings are only “indications” because

of their brevity they cannot even be regarded as summaries. Thus, even though s

5(2) and (3) [of the Interpretation Act 1999] do not expressly say so, it must be the case that the substantive provisions of the section prevail if there is inconsistency.

Indeed, on a few (thankfully rare) occasions, section headings have been actively

misleading, sometimes because a section has been hurriedly amended on its way through Parliament.

Conclusion

[48] It will be seen that the list of qualifying offences appearing in s 86A for the most part uses unambiguous offence descriptions alongside the list of section numbers. An example is s 172 (murder) and 128B (sexual violation). But ss 188 (1) and (2) are listed separately, probably because an earlier s 188(3) has subsequently been repealed. So the section title or marginal note to s 188 in the Crimes Act (“wounding with intent”), has been expanded slightly in order to distinguish between the two subsections.

[49] I accept Mr Smith’s submission that it cannot have been intended thereby to limit the scope of those provisions. In my opinion, an attempt has been made during the drafting process to devise a phrase which will sufficiently capture the subject matter of the section or subsection concerned. I am satisfied that Parliament did not intend to confine the list to offences involving intent. Manslaughter is an obvious example of an offence where it is unnecessary to establish intent. Moreover, a number of intentional offences in s 188 would be excluded if a more restrictive interpretation was adopted.

[50] I consider it to have been likely that those responsible for drafting the legislation simply adopted the technique used in s 2 of the Criminal Justice Act 1985,

13 JF Burrows & RI Carter Statute Law in New Zealand (4th ed, LexisNexis, Wellington, 2003) at 236.

without considering difficulties of the sort that have now arisen. In my view, the shorthand references accompanying the section numbers in s 86A were intended simply to act as an aide memoire to those reading the section, by linking the general subject matter of that section with the section number itself. In other words, Parliament did not intend the brief summaries to be definitional. To interpret those references as limiting the scope of s 86A would lead to seriously perverse consequences, and introduce ambiguity where none ought to exist.

Result

[51] For the foregoing reasons, I conclude that Judge McDonald was wrong to refuse to give the respondent a first warning. Such a warning was, in the circumstances, a mandatory requirement. The appeal must therefore be allowed. The matter is remitted to the Whangarei District Court for resentencing in order that the statutory warning for a stage one offence might be given.

C J Allan J