R v Allen [2018] NZDC 14972

Published 13 September 2018

Strike warning — validity of oral only strike warning — Sentencing Act 2002, s 86B — Interpretation Act 1999 ,s 5 — Sentencing and Parole Reform Act 2010 — Law and Order Committee — Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 12. The defendant appeared for sentence on two charges, and where the Crown submitted that this would be the defendant's second strike offence; having been sentenced for aggravated robbery in 2015, the occasion on which he was given a oral first strike warning. The issue for the court was whether the first strike warning was validly given. Counsel for the defendant accepted that an oral first strike warning was given and recorded in the sentencing notes, but argued that by itself does not complete the three step process that is contemplated by s 86B — which requires that an offender be notified in writing. When looking at what was said in the Law and Order Committee's report the Court concluded that Parliament clearly intended that the offender would be warned both verbally and in writing because of the potentially serious consequences if a second strike offence is committed. A further reason for ensuring that a written warning is given is that for some defendants the sentencing process is a frightening one which could effect their concentration. A written warning would ensure that a defendant is fully and fairly informed of his or her position. As the defendant was not given his written copy of the first strike warning the process was fatally flawed and the Court declined to deal with the defendant on the basis that he was subject to the second strike provisions of the Act. Judgment Date: 27 July 2018