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Sentencing (Protection of Children from Criminal Offending) Amendment Bill (Consistent) (Section 19(1)) [2013] NZBORARp 4 (8 February 2013)
Last Updated: 26 March 2019
Sentencing (Protection of Children Criminal Offending) Amendment Bill
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT
1990: SENTENCING (PROTECTION OF CHILDREN FROM CRIMINAL OFFENDING) AMENDMENT
BILL
8 FEBRUARY 2013
- We
have considered whether the Sentencing (Protection of Children from
Criminal
Offending) Amendment Bill (‘the Bill’) is
consistent with the rights and freedoms affirmed in the New Zealand Bill of
Rights Act 1990 (‘the Bill of Rights Act’). The Bill is a
Member’s Bill in the name of Le’aufa’amulia
Asenati
Lole-Taylor MP. The Bill was introduced into the House of Representatives on 6
December 2012 and is awaiting its first reading.
We understand that the next
Members’ Day is scheduled for Wednesday 13 February 2013.
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act. In reaching
that conclusion, we
have considered the consistency of the Bill with s 19 (freedom from
discrimination).
The Bill
- The
Bill proposes to amend s 9 of the Sentencing Act 2002 (‘the Sentencing
Act’) so that the Court must take into account,
as an aggravating factor
at sentencing, the fact that the offence was committed by an offender aged 17
years or older, in the presence
of a minor (aged 16 years and under) and the
actions undertaken to commit the offence put the minor at risk of physical,
emotional,
or mental harm, for example, illness or injury (‘the new
aggravating factor’).
Consistency with the right to freedom from
discrimination
- Section
19(1) of the Bill of Rights Act affirms the right of everyone to be free from
discrimination on the grounds set out in the
Human Rights Act 1993. The grounds
of discrimination are set out in s 21 of that Act, and include age (commencing
at 16 years of
age).
5.A provision may limit the right to freedom from discrimination
where:
a.it draws a distinction on one of the prohibited grounds of discrimination;
and
b.the distinction involves material disadvantage to one or more classes of
individuals. 1
- The
new aggravating factor applies only to offenders aged 17 years and over. A court
sentencing an offender under 17 years old in
the adult jurisdiction would not be
required to
- Ministry
of Health v Atkinson [2012] NZCA 184 at [109].
take the new
aggravating factor into account.2 An offender aged 17 years and over being
sentenced for the same or similar offending
would have the new aggravating taken
into account. An aggravating factor generally results in an increased sentence.
Therefore, the
new aggravating factor could result in disadvantage for offenders
17 years or older.
- However,
sentencing is a complex process where the court must use its discretion and have
regard to the purposes and principles of
sentencing as well as relevant
aggravating and mitigating factors. 3 The Sentencing Act provides that nothing
prevents the courts
from taking into account any other (non-listed) aggravating
factor, nor implies that a listed factor must be given greater weight
than any
other factor.4 Therefore, even where the offending was carried out by an
offender aged 16 years, the court has the discretion
to take into account that
the offence was committed in the presence of a minor, and put the minor at risk
of physical, emotional,
or mental harm.
- We
therefore consider that the distinction between 16 year olds and those 17 years
and older is unlikely to create a material disadvantage.
However, if the
provision does limit the right to be free from discrimination, we consider it
can be justified under s 5 of the Bill
of Rights Act because:
- the objective of
the Bill to protect minors from harm is sufficiently important to justify some
kind of limitation on the right;
- the new
aggravating factor applies to offenders that the courts treat as adults, which
is a reasonable point at which to draw a distinction;
- it would be
counter-intuitive to apply the aggravating feature to those it was designed to
protect; and
- the limitation
is proportionate because the courts have the discretion to give appropriate
weight to the new aggravating factor in
the circumstances or apply it to 16 year
olds (as discussed above).
Conclusion
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act.
- The
Sentencing Act generally only applies to offenders aged 17 years and over.
Offending by a young person aged 16 years is dealt
with in the Youth Court under
the Children, Young Persons, and Their Families Act 1989. However, there are
circumstances where a
16 year old may be sentenced in an adult court, and in
those cases, the Sentencing Act will apply.
- Sections
7, 8, 9, and 9A of the Sentencing Act. 4 Section 9(4)(a) and (b) of the
Sentencing Act.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
In addition to the general disclaimer for all documents on this website,
please note the following: This advice was prepared to assist
the
Attorney-General to determine whether a report should be made to Parliament
under s 7 of the New Zealand Bill of Rights Act 1990
in relation to the
Sentencing (Protection of Children From Criminal Offending) Amendment Bill. It
should not be used or acted upon
for any other purpose. The advice does no more
than assess whether the Bill complies with the minimum guarantees contained in
the
New Zealand Bill of Rights Act. The release of this advice should not be
taken to indicate that the Attorney-General agrees with
all aspects of it, nor
does its release constitute a general waiver of legal professional privilege in
respect of this or any other
matter. Whilst care has been taken to ensure that
this document is an accurate reproduction of the advice provided to the
Attorney-General,
neither the Ministry of Justice nor the Crown Law Office
accepts any liability for any errors or omissions.
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