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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


  1. 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.


  1. 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

  1. 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


  1. 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


  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
  2. 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.


  1. 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.
  2. 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:

Conclusion

  1. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.
  2. 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.
  3. 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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