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Last Updated: 4 January 2014
September 2013, Wellington, New Zealand | S T U D Y P A P E R 2 1
MAXIMUM
PENALTIES FOR CRIMINAL OFFENCES
September 2013, Wellington, New
Zealand
MAXIMUM
PENALTIES FOR CRIMINAL OFFENCES
The Law Commission is an independent, publicly funded, central
advisory body established by statute to undertake the
systematic review,
reform and development of the law of New Zealand. Its purpose is to help
achieve law that is just, principled,
and accessible, and that reflects the
heritage and aspirations of the peoples of New Zealand.
The Commissioners are:
Honourable Sir Grant Hammond KNZM – President
Dr Geoff McLay SJD; Mich
Honourable Dr Wayne Mapp Ph D; Cantab; QSO Judge Peter Boshier
The General Manager of the Law Commission is Roland Daysh
The office of the Law Commission is at Level 19, 171 Featherston Street, Wellington
Postal address: PO Box 2590, Wellington 6140, New Zealand
Document Exchange Number: sp 23534
Telephone: (04) 473-3453, Facsimile: (04) 471-0959
Email: com@lawcom.govt.nz
Internet: www.lawcom.govt.nz
National Library of New Zealand Cataloguing-in-Publication Data
Maximum penalties for criminal offences. (Law Commission study paper ; 21)
ISBN 978-1-877569-47-0 (PDF)
1. Sentences (Criminal procedure)—New Zealand.
2. Crime—New Zealand—Public opinion. I. New Zealand. Law Commission.
II. Series: Study paper (New Zealand. Law Commission) ; 21.
ISSN 1177-7125 (Online)
This paper may be cited as NZLC
SP21
ii Law Commission Study Paper
Foreword
In 2006 the Law Commission produced a report, Sentencing Guidelines and
Parole Reform (NZLC R94), which recommended the establishment of a
Sentencing Council in New Zealand. Those recommendations were given effect
to
by the then administration, principally by the Sentencing Council Act
2007.
When the present administration took office after the 2008 General
Election, it determined that it would not proceed with the
establishment of a
Sentencing Council. The relevant Act is still in force but the Council has not
been constituted.
The Commission had, amongst other things, undertaken research into
how maximum penalties might be conceptualised and
dealt with. That subset of
sentencing law has always been, and will continue to be, a difficult one. This
research was conducted
by Dr Warren Young, the then Deputy President of the Law
Commission, and Yvette Tinsley, a Reader in Law at Victoria University
of
Wellington. The Commission is grateful to them for all the work they
did.
The Commission itself does not make any recommendations on this Study
Paper. However, the value of the research should
not be lost. The
Commission has thought it appropriate to publish this paper, for such assistance
as it may provide to other researchers
and advisers in the
future.
Sir Grant Hammond
President
Maximum Penalties for Criminal Offences iii
Acknowledgements
We are grateful to all the people and organisations that provided
input during this review. This includes the judiciary
and academic
commentators that we approached for comment. We particularly acknowledge the
contribution of Dr Yvette Tinsley,
Associate Professor at Victoria University,
to the development of this paper.
Law Commissioner Dr Warren Young, assisted by Dr Ryan Malone, led this
project.
iv Law Commission Study Paper
Contents
Foreword ................................................................................................................................................................... iii Acknowledgements ................................................................................................................................................... iv Chapter 1 Introduction .............................................................................................................................................. 2
Background ........................................................................................................................................................... 2
Reasons for the review ......................................................................................................................................... 2
The scope of the review ....................................................................................................................................... 4
The structure of this report
.................................................................................................................................
5
Chapter 2 The nature and role of maximum penalties
............................................................................................
6
Chapter 3 Methodology
.............................................................................................................................................
8
Alternative approaches ........................................................................................................................................ 8
Step 1: A quantitative tool for measuring harm ................................................................................................. 9
Step 2: Testing the tool on sample offences
......................................................................................................
12
Chapter 4 Determining harm and culpability
........................................................................................................
19
Overall provisional harm score ......................................................................................................................... 19
Adjusting for culpability .................................................................................................................................... 20
Comparing the provisional ranking with current maximum penalties and
sentencing practice .................. 25
Chapter 5 Devising and consulting on draft penalty categories
............................................................................
28
Determining penalty categories ......................................................................................................................... 28
Public consultation on penalty categories
.........................................................................................................
29
Chapter 6 Conclusion: anomalies in the maximum penalty structure
.................................................................
32
Maxima that are out of line with those for other cognate offences ................................................................. 33
Maxima that do not appropriately reflect the range of interests harmed or put at risk by the offence ........ 35
Maxima that do not reflect the appropriate balance between consequence and culpability ......................... 36
Maxima for offences that overlap with other offences .................................................................................... 37
Maxima that are based on social conditions and mores of another era .......................................................... 38
Maxima that are based on an inconsistent approach to preparatory conduct ................................................ 38
Maxima attaching to offences in the Arms Act 1983 ...................................................................................... 40
Conclusion
..........................................................................................................................................................
41
Appendix A Sample offences for determining base values
...................................................................................
43
Appendix B Calculation of harm caused by an offence
.........................................................................................
46
Appendix C Colmar Brunton – Maximum Penalties Report
................................................................................
48
Appendix D Final ranking of offences in penalty categories
..............................................................................
118
Maximum Penalties for Criminal Offences 1
CHAPTER 1: Introduction
Chapter 1
Introduction
BACKGROUND
1.1
1.2
1.3
1.4
In the Law Commission’s report Sentencing Guidelines and Parole
Reform,1 it was recommended that a Sentencing Council be
established to draft sentencing and parole guidelines that would be
presumptively
binding on the judiciary and the Parole Board
respectively. The Law Commission also recommended substantial reform to
the
present parole arrangements, so that prisoners serving long-term determinate
sentences (those with a prison term of more
than 12 months) would serve
at least two-thirds of their sentence, and those serving a short sentence (12
months or less) would
not be eligible for parole at all and would serve their
full term. The Law Commission’s recommendations were given effect by
the
Sentencing Council Act 2007, the Sentencing Amendment Act 2007 and the Parole
Amendment Act 2007.
The Law Commission noted in the same report
that without any change to the existing legislative framework, the new
Council would confront difficulty in developing guidelines in a coherent
and consistent way. That is because s 8(c)
and (d) of the Sentencing Act
2002 codify the presumptions (existing previously in case law) that the
maximum penalty
should be imposed for the most serious offending, and a
penalty near to the maximum should be imposed for offending that
is near
to the most serious. The difficulty is that maximum penalties have a number of
serious relativity problems and other
anomalies. Thus, if the development of
guidelines was based upon the existing structure of maximum penalties
– as s
8(c) and (d) require – and if that structure remained
untouched, the levels at which guidelines were set and the
relativities
between one offence and another would be likely to reflect the existing
maximum penalty problems. This would create
something of a dilemma for the
Council: it could seek to draft guidelines that were coherent and defensible
by reference to all
of the other considerations relevant to its task, but it
could then be seen to be acting contrary to law.
It was proposed that
the Law Commission should be directed to review the role, format and
structure of maximum penalties in
parallel with the development of the
inaugural sentencing and parole guidelines, and to recommend any changes
required to correct
existing anomalies and ensure consistency with the
purposes and framework of a guidelines system. At the same time as it accepted
the Law Commission’s recommendations for sentencing and parole reform, the
Government of the day agreed with the proposal for
a review of maximum penalties
and gave the Law Commission a reference accordingly.
However, when
the National Government took office after the 2008 election, it announced
that it did not intend to proceed
with the establishment of a Sentencing
Council. The Council is therefore now in abeyance (although the Act under
which
it was to be established has not been repealed and is still in
force). Accordingly the particular context in which the
Law
Commission’s proposal for a review of maximum penalties was made is no
longer current.
REASONS FOR THE REVIEW
1.5
Notwithstanding this change in circumstances, we determined that the
project was important and that we would persist with it.
That is because the
Law Commission’s work on the development of sentencing guidelines in
advance of the establishment
of a Sentencing Council reinforced the view
expressed in Sentencing Guidelines and Parole Reform that many maximum
penalties are anomalous, do not reflect the
relative seriousness of the
offence and bear little or no relationship to current sentencing practice.
This
1 Law Commission Sentencing Guidelines and Parole Reform (NZLC R94,
2006).
2 Law Commission Study Paper
is regrettable because, as the Australian Law Reform Commission has
observed, “in a rational system of punishment it
is desirable that
penalties prescribed by law correspond to offence seriousness in a
consistent fashion”.2
1.6
1.7
1.8
1.9
1.10
1.11
There are a number of reasons for the anomalies identified between many
maximum penalties and the disjunction between them
and current sentencing
practice.
First, maximum penalties have historically been set in a
fairly unsystematic way. There has been no rigorous and agreed
methodology or approach for determining the relative seriousness of an
offence when it is created. It would be going too
far to say that maximum
penalties are little more than figures plucked out of the air at the
time of their creation;
officials and legislators do generally make some
attempt to compare the proposed maximum with maximum penalties elsewhere
in
the statute book, and for many years the Ministry of Justice (and before
1995, the Department of Justice) has performed
a vetting function in
relation to statutory provisions creating new offences or penalties.
Nevertheless, in the end the selection
of a quantum has been largely
intuitive.
Secondly, even if a maximum penalty does accurately
indicate Parliament’s view as to the relative seriousness of
an
offence, it is an assertion of seriousness for that particular Parliament, and
in light of the political and social circumstances
of the day. It may therefore
exist largely as a matter of historical accident. If it has not been reviewed
over time, it may provide
little guidance as to the legislature’s current
view of the seriousness of the offence relative to other offences.
To
illustrate, s 18 of the District Courts Act 1947 creates an offence of
assaulting an officer of a District Court, for which
the maximum penalty is
a fine of $300. By comparison, s 30 of the Courts Security Act 1999 creates
an offence of assaulting
a court security officer, for which the maximum
penalty is three months’ imprisonment. The differences in maximum
penalties suggest that the latter offence is considerably more serious
than the former. In fact, the offences are
in substance the same,
namely assaulting an official of the court acting in the execution of his
or her duty. The problem
is that the maximum penalty for the assault
offence in the District Courts Act has not been revised since 1980 when the
maximum
fine limit was increased from $40.3 The failure to update
the maximum since that time has resulted in the development of quite different
maxima for offences of equal
seriousness.
Difficulties with inconsistent
maxima are not limited to the occasional pair of comparable offences. There are
in fact a large number
of offences of assaulting a person acting in an
official capacity, in addition to the two just described, many of which
carry widely varying maxima.4 Moreover, these offences are in
addition to the main common assault offences in s 9 of the Summary Offences
Act 1981 (maximum
six months’ imprisonment) and s 196 of the Crimes
Act 1961 (maximum one year’s imprisonment). This combination of
offences
and associated maximum penalties indicates how incoherent the statute book
can become when very similar or even identical
offences are created at
particular times to meet particular political needs, and then left in place
without subsequent review.
Thirdly, the rules covering the automatic
release of prisoners have been altered on a number of occasions over the years,
thus changing
the proportion of a nominal prison sentence actually served
without any corresponding change in maximum penalties. Initially,
s 31(1) of
the Penal Institutions Act 1954 gave the Minister of Justice a discretion to
remit the determinate sentence of a person
on the grounds of “good
conduct and industry” by no more than one quarter of their sentence.
This changed with
the Criminal Justice Act 1985 when offenders became
eligible for remission (which was effectively automatic early release)
after
serving two-thirds of their sentence. In 1993, while remission remained at
two-thirds for
2 Australian Law Reform Commission Sentencing: Penalties (ALRC DP30, 1987) at [89].
3 District Courts Amendment Act 1980, s 16.
4 These include maxima of: a fine of $1,000 for assaulting an officer of a Tenancy Tribunal (Residential Tenancies Act 1986, s 112); a fine of
$5,000 for assaulting a member or officer of the Lawyers and Conveyancers
Disciplinary Tribunal ( Lawyers and Conveyancers Act 2006, s 251); a fine of
$50,000 for assaulting a wine officer (Wine Act 2003, s 101); 5 days'
imprisonment for assaulting a Supreme
Court Justice (Supreme Court Act 2003,
s 35); 10 days' imprisonment for assaulting a member or officer of the
Environment Court
(Resource Management Act 1991, s 282); three months'
imprisonment for assaulting a person exercising statutory powers (Civil
Defence Emergency Management Act 2002, s 98); six months' imprisonment for
assaulting a police, prison, or traffic officer (Summary
Offences Act 1981, s
10); and 12 months' imprisonment for assaulting a Customs Officer (Customs and
Excise Act 1996, s 176).
Maximum Penalties for Criminal Offences 3
CHAPTER 1: Introduction
long-term prisoners (those serving more than 12 months), it was reduced
to one half for short-term prisoners (those serving
12 months or less).
Under the Parole Act 2002, automatic release was abolished for long-term
prisoners (now defined as those
serving more than two years), but was
retained at one half for short-term prisoners (those serving two years or
less). The
Parole Amendment Act 2007, as yet unimplemented, redefined a
short-term prison sentence to mean a sentence of 12 months or less,
and would
require prisoners to serve the whole of that sentence.
1.12
Since maximum penalties remain the same despite these adjustments to the
rules governing early release, offenders have over time
been exposed to
different levels of punishment for a particular offence, even though there has
been no explicit legislative
intent to achieve that result. For example,
the worst class of case of conspiring to defeat the course of justice (s 116
of
the Crimes Act) would be deserving of the maximum penalty of seven years.
However, the actual length of sentence served
could depend on the
automatic release rules in place at the time. Under the Criminal Justice Act
1985 (as amended in 1993), an
offender sentenced to seven years had to be
released after two-thirds of that sentence. Conversely, following the
enactment
of the Sentencing Act an offender sentenced for seven years for
the same offence could be required to serve the full seven
years.5
For this reason, maximum penalties need to be reviewed in order to
take into account the present automatic release requirements.
This is
important because offenders should not be liable to maximum penalties that make
outdated assumptions about those requirements.
THE SCOPE OF THE REVIEW
1.13
1.14
1.15
There are in excess of 180 Acts in the New Zealand statute book that
contain imprisonable offences. To make the task more manageable,
this review
is restricted to those imprisonable offences contained in the main criminal
statutes, namely:
• Crimes Act 1961;
• Misuse of Drugs Act 1975;
• Land Transport Act 1998;
• Arms Act 1983; and
• Summary Offences Act 1981.
Limiting the review in the first
instance to imprisonable offences contained in these five Acts has been purely
pragmatic. A review
of the whole of the statute book would have been a
monumental task and would have encompassed a large number of offences that
are
only infrequently the subject of prosecution. Moreover, it would have required
consideration of regulatory and corporate offending
to which a range of
different criteria might need to have been applied.
However, the fact
that our review to this point has been confined to the five primary criminal
statutes does not mean that the
exercise should stop there. Indeed, if it did
so there would be a risk of creating, in effect, two maximum penalty regimes,
one
that used the penalty category system outlined in this paper, and the
other based on the traditional ad hoc approach to maximum
penalties. If the
penalty category system proposed here were to be implemented, therefore, we
suggest that:
• offences in other statutes obviously inconsistent with the resulting
maxima (such as the wide range of assault offences in
other statutes listed in
footnote 4 above) should be adjusted at the same time;
5 Of course, the offender may not have to serve the full seven years in
prison given the possibility of parole. This raises the
question as to whether
changes to parole rules constitute a further reason for reviewing maximum
penalties. The answer is that
they do not, for two reasons. First, parole
is discretionary. Automatic release, on the other hand, is mandatory, meaning
that maximum penalties can be set in the knowledge that an offender’s
sentence will be completed at a definite point that
is earlier than the
sentence imposed by the court. Second, even if an offender is paroled, he or
she is technically serving
his or her sentence, and is subject to recall to
prison to serve the remainder of his or her sentence if one or more of the
conditions
of parole are breached. By contrast, automatic release constitutes
the completion of the sentence, without the possibility of recall
to
prison.
4 Law Commission Study Paper
• maxima in other statutes should be reviewed on the basis of the
new methodology as amendments to them are being made
from time to time for
other reasons; and
• a separate exercise should be undertaken to determine whether
there are any offences (such as regulatory and
corporate offences) for
which a different methodology is required.
1.16
Although the review is confined to those offences currently subject to a
maximum term of imprisonment, there is no presumption that
any new recommended
maximum penalty must be one of imprisonment.
THE STRUCTURE OF THIS REPORT
1.17
This report is interim. It describes the methodology that we have
developed to determine what a maximum penalty should
be; the work that
we have undertaken to test and apply the methodology; the way in which
we have grouped offences
in the light of that work; and the offences
that we have consequently identified as most glaringly at odds with a coherent
maximum penalty structure. However, it does not attempt to assign maximum
penalties to each set of grouped offences. That
would require substantial
work and further public consultation that we have not been able to undertake to
date.
Maximum Penalties for Criminal Offences 5
CHAPTER 2: The nature and role of maximum penalties
Chapter 2
The nature and role of maximum penalties
2.1
2.2
2.3
2.4
2.5
Maximum penalties are a near-ubiquitous feature of New Zealand’s
criminal law. Very few offences do not have a specific
maximum penalty attached
to them.6
It is a long-standing common law principle (now
codified in s 8(c) of the Sentencing Act 2002) that the maximum penalty is to
be imposed for the offence that is within the most serious of cases for which
that penalty is prescribed, unless circumstances
relating to the offender,
such as the absence of a previous record, make that inappropriate.7
In setting a maximum penalty, Parliament is therefore stipulating the
sentence that it regards as appropriate in such cases.
Parliament does
not decree what the most serious case might be. Nor would it be practicable
for it to do so. This is, rather,
a matter for the courts to determine given
the circumstances of the cases that come before them. In doing so, the courts
have
repeatedly emphasised that the maximum sentence is not to be reserved for
the worst possible case imaginable. If that were the
test, no one would ever
be sentenced to the maximum penalty, since it is always possible to think
hypothetically of a more serious
case. Rather, the maximum penalty is to be
imposed where the case comes within the worst class of offending of its type
or
(as s 8(c) puts it) “within the most serious of cases for which that
penalty is prescribed”.8
Of course, most offending does
not fall within the bracket of the “worst class of case”. Offences
in New Zealand tend
to be broadly defined, with widely varying degrees of
seriousness encapsulated within one offence category. That is desirable
as a
means of ensuring that there are not unnecessary pleas of not guilty and
defended trials because of denials or disputes
about secondary matters that
do not bear on core culpability and ought to be addressed at sentencing. But
the result is that
statutory maximum penalties tend to be set far above the
sentences that would be appropriate for the ordinary run of offences of
each
type coming before the courts and provide a poor guide as to what the sentences
for those offences ought to be. There is thus
only an indirect and sometimes
marginal relationship between the maximum penalty for an offence and the bulk
of sentences imposed
for that offence.9 The extent of the
relationship will also vary from offence to offence, depending upon the
breadth of the offence definition and
the consequent spread of offending
relative to the worst class of case.
In our view, this is as it should
be. Parliament can and should give guidance as to the appropriate penalty for
offending at the top
end of the spectrum within a particular offence category,
but realistically it is not able to prescribe sentence levels for day
to day
sentencing practice. To reiterate the conclusion the Law Commission reached
in Sentencing Guidelines and Parole Reform, that can only sensibly be
done through
a system of sentencing guidelines developed in some other
way.
6 Those offences that do not carry a specific maximum penalty are still covered by s 107 of the Crimes Act 1961, which provides a maximum penalty of one year's imprisonment for wilfully performing a prohibited act or failing to perform a statutory duty.
7 See for example: R v Beri [1987] 1 NZLR 46 (CA); R v Donnelly and Fulcher [1987] NZCA 300; [1987] 2 NZLR 233 (CA); and R v Xie [2006] NZCA 201; [2007] 2 NZLR 240 (CA).
8 See for example: R v Chen [2009] NZCA 445, [2010] 2 NZLR 158; R v Rhodes and ORS [2009] NZCA 486.
9 For example, conversion of a motor vehicle carries a maximum penalty of seven years' imprisonment (Crimes Act 1961, s 226). However, in
2003, only 26 per cent of convicted offenders were given a custodial
sentence, and the average sentence length was at its highest
point in a decade
at 9.4 months, far below the maximum penalty. Even if the maximum penalty is
set at the correct level (and we
suggest below that it is not), the fact that
day-to-day sentences are out of line with it would not necessarily indicate any
problem
with sentencing practice.
6 Law Commission Study Paper
Offence seriousness as the basis for maximum
penalties
2.6
Because the current maximum penalties regime is based on the worst class of
case in a particular category, it is clearly based
on relative offence
seriousness. In general, the higher the maximum penalty that Parliament
allocates to an offence, the
more seriously it views the prohibited conduct.
This approach is made clear in the Sentencing Act which provides
that:
8 Principles of sentencing or otherwise dealing with offenders
In sentencing or otherwise dealing with an offender the court—
...
(b) must take into account the seriousness of the type of offence in
comparison with other types of offences, as indicated by the
maximum penalties
prescribed for the offences.
2.7
2.8
2.9
2.10
This constitutes a direction from the legislature to the courts not
only to take offence seriousness into account when
passing sentence,
but to determine offence seriousness by reference to the relevant maximum
penalty.
Caution needs to be exercised in applying this relativity
to less serious instances of offences, since one offence may encompass
a
much greater range of conduct than another. Nevertheless, the maximum
penalty will often provide some guide as to appropriate
differences between
sentence levels for different offences across the range of conduct covered
by them. For example, sentences
for supply of a Class A drug10 (a
maximum of life imprisonment) will almost invariably be much higher than those
for possession of a Class C drug11 (a maximum of either three
months’ imprisonment or a fine of $500). The difference in sentence
reflects the degree of seriousness
with which Parliament views supply of a
Class A drug as compared to possession of a Class C drug.
Again, we
agree with the approach that underpins the current legislation in this respect.
While s 7 of the Sentencing Act lists eight
purposes of sentencing and states
that nothing about the order in which the purposes appear in the section
implies that any
purpose is to be given any greater weight than any other
purpose, the need to hold the offender accountable (purpose (a)) and
denounce
the conduct (purpose (e)), and therefore to determine the quantum of punishment
by reference to the seriousness of the
offence and the culpability of the
offender, is almost invariably still the starting point in the calculation of
sentence.12
We have therefore based our review of maximum
penalties on a methodology that is designed to assess the relative
seriousness
of the worst class of case of each offence, moderated by any
reduced culpability inherent in that offence. In the next chapter,
we turn to
consider the details of that methodology and how we have applied
it.
10 Misuse of Drugs Act 1975, s 6(2)(a).
11 Misuse of Drugs Act 1975, s 7(2)(b).
12 See for example, R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).
Maximum Penalties for Criminal Offences 7
CHAPTER 3: Methodology
Chapter 3
Methodology
3.1
We began our undertaking by devising a process by which recommended
maximum penalties could be arrived at. This entailed nine
steps as
follows:
Step 1: The development of a quantitative tool to determine the
level of harm caused to one or more pre- defined interests by the
worst class of
case of an offence.
Step 2: The testing of the workability of that tool
on a sample of 30 offences.
Step 3: The application of the tool to all
imprisonable offences covered by the review, in order to give each offence a
total
harm score and arrive at a provisional ranked list of offences
according to seriousness.
Step 4: Where necessary, the modification of
the harm score of an offence to reflect particular culpability elements as
expressed
in statute.
Step 5: The identification of any discrepancies
between the seriousness of offences, as indicated by the provisional ranked
list,
and (1) existing maximum penalties and (2) judicial views of offence
seriousness using available sentencing data, with consequent
adjustments where
necessary to the provisional ranked list in order to produce an adjusted
ranked list of offences according to seriousness.
Step 6: The
assignment of all offences included in the review to draft penalty
categories based on the adjusted ranked list of offences.
Step
7: Targeted public consultation on the draft penalty categories (at this
stage without proposed maximum penalties),
with a consequent review of, and
where necessary adjustment to, those categories.
Step 8: The assignment
of proposed maximum penalties to each draft penalty category.
Step 9:
A second round of targeted public consultation on the proposed
penalties for each of the categories, in
order to produce recommended
maximum penalty categories and penalties.
ALTERNATIVE APPROACHES
3.2
3.3
3.4
3.5
Several alternative approaches to determining offence seriousness and setting
maxima were considered and rejected.
First, we considered the measure
of offence seriousness developed by the Ministry of Justice in
1991.13
Under this system, the seriousness of an
offence is measured by the average number of days of imprisonment imposed
on
each offender convicted for that offence over a five year period. The
average figure covers both imprisoned and non-imprisoned
offenders. For
example:14
Between 1995 and 1999 there were 100 cases of offenders convicted of a
particular offence. Of these cases, 50 resulted in
a custodial sentence, and
the average length of the custodial sentences imposed on these offenders was
30 days. The seriousness
score for this offence is (30 x 50/100), or
15.
This model is not suitable for this review. Not only does it limit
the determination of offence seriousness to sentencing data (thereby
accepting
the correctness of the status quo and ignoring other criteria), but it
produces an index of offence seriousness
based on average sentences of
imprisonment. By contrast,
13 Phillip Spier Conviction and Sentencing of Offenders in New Zealand 1991–2001 (Ministry of Justice, 2001) at 11–13.
14 At 11.
8 Law Commission Study Paper
this review will be based on the worst class of case for each offence. So the average number of days of imprisonment (30 days in the above example) includes the whole spectrum of custodial sentences handed
down for an offence, rather than focusing on sentences imposed at the top
end.
3.6
3.7
3.8
Secondly, we examined the 1978 United Kingdom Advisory Council review of
maximum penalties which proposed a more radical approach.15 The
Council recommended that maxima for each offence be set so as to capture 90 per
cent of the sentences currently imposed for
each offence. Put differently, the
maxima would be set lower than the highest 10 per cent of sentences handed
down.16 This still suffers from the problem that it is based on
current sentencing practice. In addition, it is subject to the major
criticism that, in recommending maxima that could not capture the worst
class of case, the Council effectively abandoned
the rationale underpinning
statutory maxima.17 Because we take the view that maximum
penalties should be based on the seriousness of the worst class of case, we
rejected
this model.
Nevertheless, we are conscious that our own model
has limitations. Inevitably, regardless of the method used, the ranking of
offences
according to seriousness inevitably involves a degree of
subjectivity and personal value judgement. Reasonable people using
the same
guiding principles will inevitably disagree about which offences are more
serious than others. For that reason,
we have not focused on the minor
discrepancies between the offence groupings that our methodology
produced and current
maximum penalties. Rather, we have highlighted and
discussed substantial discrepancies that in our view clearly indicate that
appropriate relativities between offences are not properly reflected in
current law.
In the remainder of this chapter we consider the first two
steps in our process (those directed towards the development of an appropriate
quantitative tool for measuring harm) in more detail.
STEP 1: A QUANTITATIVE TOOL FOR MEASURING HARM
3.9
The development of a quantitative tool for measuring the harm caused or
risked by an offence comprised four elements: (1) the
identification of the
interests harmed or put at risk; (2) the weighting of those interests in
terms of their relative
importance; (3) the development of a system for
quantifying the level of injury to an interest; and (4) the development of a
formula
for identifying the overall harm score of each offence.
The identification of interests harmed by an
offence
3.10
3.11
The first step in developing a quantitative tool to measure the level of
harm caused by the worst class of case of an offence
was to identify the
interests capable of being harmed by criminal offending.
Harm may be
defined as “the injury done or risked by the criminal
act”.18 But what is it that is being injured, or is at risk
of being injured? Based on the work of von Hirsch, Ashworth and Jareborg, we
began by identifying three broad interests that can be affected by criminal
offending:19
• physical integrity;
• material support and amenity; and
• privacy and freedom from humiliation or offensive
behavior.
15 Advisory Council on the Penal System Sentences of Imprisonment: A Review of Maximum Penalties (HMSO, London, 1978).
16 Judges would have been able to exceed the maximum in exceptional cases (ie the estimated 10 per cent of cases that warranted a sentence above the new maximum) and would in that event have not been subject to any maximum.
17 One critic suggested “...the Council’s proposal amounts to an abolition of maximum penalties altogether. The new maxima would not be maxima at all; rather, they would amount to an efficiency bar on an unlimited incremental scale”: DA Thomas “Report of Committees, Sentences of Imprisonment – a Review of Maximum Penalties” (1979) 42 MLR 309 at 311.
18 Andrew von Hirsch Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals (Manchester University Press, Manchester, 1985) at 64. See also Andrew Ashworth Sentencing and Criminal Justice (4th ed, Cambridge University Press, Cambridge, 2005) at
102–150.
19 Andrew von Hirsch, Andrew Ashworth and Nils Jareborg “Gauging Crime Seriousness: A ‘Living Standard’ Conception of Criminal Harm” in
Andrew von Hirsch and Andrew Ashworth Proportionate Sentencing: Exploring
the Principles (OUP, Oxford, 2005) 186 at 205–207.
Maximum Penalties for Criminal Offences 9
CHAPTER 3: Methodology
3.12
3.13
3.14
3.15
Physical integrity covers the physical health and safety of the
individual. This interest is harmed by offences such as
assault or murder, and
may be jeopardised by offences such as drunk driving or breaches of health and
safety laws. Material interests
can range from the necessities of life, ie
food, shelter, and clothing, through to luxuries, such as an MP3 player or
a sports
car. People also have an interest in avoiding breaches of
personal privacy, and from being subject to humiliation or offensive
behaviour by the actions of others.
Yet not all values that the criminal
law seeks to protect fit nicely into one of these three interests. It will not
always be the
case that the victim of an offence will be an identifiable
natural person. Gross, in his seminal work on the concept of harm,20
noted the need also to take into account offences against the state and
offences against the public interest. Offences against the
state include those
offences where the state’s interests are harmed or threatened, as for
example with treason, tax evasion,
and offences against the administration
of justice. Offences that harm the public interest cover those offences where
the collective
welfare is harmed or threatened, as with environmental offences,
bigamy, and offences against health and safety laws.
For the purposes
of this review, therefore, we added these two interests to the three
interests initially identified. This
gave a total of five interests capable of
being injured by an offence:
• physical integrity;
• material support and amenity;
• privacy and freedom from humiliation or offensive behavior;
• governmental interest; and
• collective welfare.
The omission of freedom from
psychological harm as a stand-alone interest was deliberate. All forms of
offending can generate
emotional responses that differ greatly in type and
intensity. Rather than trying to account for the various individual human
reactions
under a single generic concept of psychological harm, the emotional
damage that is likely to result in the worst class of case
was instead
taken into account when assessing the harm score for each interest.21
For example, the on-going security fear that can be evoked following a
domestic burglary was factored into the value ascribed
to the level of injury
caused to the privacy and freedom from humiliating or offensive behaviour
interest.
Weighting interests according to their relative
importance
3.16
3.17
3.18
The second step in developing a quantitative tool was to weight the
five interests according to their relative importance.22 This
weighting was designed to reflect the value which society generally
places on certain values over others. For example,
a person’s
physical integrity is generally considered more important than their
material interests. This balance
is reflected in existing maxima,
in current sentencing practice and in public concern regarding violent
crimes.
We originally attempted to weight the interests by simply
ranking them in order of importance and giving them a base value
from 1 to
5. However, we quickly realised that this did not reflect the relative
differences between them in terms of importance.
We therefore undertook a
more elaborate exercise to ascribe values to each interest.
First, we
devised three offence scenarios for each interest that in our judgement
substantially harmed or risked harm only
to that interest, and did so to a
high, medium or low degree respectively (a total of
15 scenarios in all,
which are attached as Appendix A). We did this because, as noted above,
offences
typically cover a broad spectrum of behaviour and can differ markedly in
their range of seriousness. It
20 Hyman Gross A Theory of Criminal Justice (Oxford University Press, New York, 1979) at 119–122.
21 Von Hirsch, Ashworth and Jareborg, above n 19, at 208.
22 Gross, above n 20, at 118.
10 Law Commission Study Paper
was therefore necessary to arrive at a weighting that properly reflected
the relative significance of an interest across the
full range of behaviour
to which it related.
3.19
3.20
3.21
3.22
Secondly, the three people undertaking the project within the Law Commission
ascribed numerical scores between one and 50 to each
offence scenario depending
upon the assessment of the harm caused or risked by the offence scenario by
comparison with the other
scenarios.
Thirdly, the offence scenarios were
given to two individuals as a pilot, and (after some modification) to
21 other members of the public that we identified through personal contact.
We asked those respondents to give each scenario a
score between one and 50 on
the same basis. Although the respondents were not a representative or random
sample of the population,
they did represent a fair cross-section of New Zealand
society: nine were from Wellington; four from the main cities and eight
from
provincial towns or rural areas; 13 were New Zealand Europeans and eight were
Maori, Pacific Islander or Asian; 13 were females
and eight were males; and the
ages ranged from 16 to 75.
Fourthly, four members of the "Sentencing
Establishment Unit" (a Unit within the Law Commission established to draft
sentencing
guidelines for the inaugural Sentencing Council) were then asked
to do the same exercise, giving a total of 25 respondents.
The combined
scores of all respondents for the three scenarios representing each
interest were then added, and averaged to
provide a single score between one
and 50. In the light of the findings from this exercise, the initial scores
of the three
people undertaking the project were modified and reduced to
a point on a scale from 1 to 7, representing the base value
(ie the
relative weighting) attached to that interest. These scores were as
follows:
• physical integrity: 7;
• material support and amenity: 4;
• privacy and freedom from humiliation or offensive behavior:
3.5;
• governmental interest: 5.5; and
• collective welfare: 1.5.
Quantifying the level of harm to each interest
3.23
3.24
Having determined the relevant interests and weighted their importance,
we needed to decide how the level of harm that an offence
caused or risked to
an interest would be quantified.
We decided that it was sufficient
simply to score the level of injury to an interest by a value from 1 to 10. A
score of 1 out of
10 constituted a nominal injury to the interest, while a
score of 10 out of 10 constituted the most serious harm possible.
Identifying the overall harm score
3.25
Finally, we selected the formula for identifying the overall harm score which
represented the harm caused to a single interest by
the offence. This formula
can be represented as follows:
base value x level of injury = harm score
If more
than one interest was harmed by an offence, each harm score was added
together to produce the
total harm score for that particular offence. An example of how the tool worked is provided in Appendix
B.
Maximum Penalties for Criminal Offences 11
CHAPTER 3: Methodology
STEP 2: TESTING THE TOOL ON SAMPLE OFFENCES
3.26
3.27
We recognised that, having developed the tool, we needed to develop rules
and principles to ensure that those applying it were
as consistent as possible
in the way in which they identified the interests harmed by an offence and
determined the extent of that
harm. In order to do so, we tested the tool on a
sample of imprisonable offences (30 offences) drawn from the five Acts included
in this review. We chose offences that covered all five interests; captured
varying levels of injury to those interests; and
ensured that the approach
of discounting the level of injury for inchoate offences was
satisfactory.
We formulated a hypothetical worst case scenario for each
offence. Each of the three people working on the project then applied
the
tool to derive a harm score for that scenario; discussed how they had arrived
at those scores; and agreed upon a set of protocols
to ensure a common
approach. The issues that required protocols fell into seven categories:
• The basis for formulating the worst case scenario.
• How to avoid double counting harm when more than one interest was
affected.
• The extent to which indirect harms ought to be taken into
account.
• The extent to which self-harm ought to be taken into
account.
• The level of injury to the material support and amenity interest
when loss of a particular dollar value was incurred.
• The approach to be taken to offences posing potential rather than
actual harm.
• The approach to be taken to inchoate offences.
Issue 1: Formulating the worst case scenario
3.28
3.29
3.30
3.31
Four difficulties were encountered in devising the worst case scenario. The
first difficulty concerned the extent to which secondary
interests that might
be harmed by the worst-case scenario should be identified in the description
of the case and taken into
account in arriving at the harm score.
For
example, take two instances of armed robbery of a bank. Both involve a
high degree of planning, multiple victims, weapons,
shots fired, injuries and
a large amount of money taken. In the first scenario, a police officer arrives
at the bank and is shot
at by the fleeing robbers. In the second scenario, the
officer arrives at the bank only after the robbers have left. The addition
of
the police officer in the first scenario not only increases the level of
injury to the physical integrity interest, but it
also introduces an injury
(and quite a significant one) to the governmental interest through the
threatened injury to a police
officer.
In the first scenario, it
clearly makes sense to include the presence of the police officer
within the depiction of
the case, thus raising the harm score to a greater
level than the second scenario where the officer arrives after the event.
Ultimately, however, there is inevitably a measure of arbitrariness as to
what secondary interests may be harmed by the worst
case scenario. We could do
no better than to review the cases that had resulted in the highest custodial
sentences for that offence
(where available – there had rarely been
convictions for some offences in the last decade), and to engage in "capped
imagination";
that is, to envisage the interests that could realistically
be harmed given the nature of the offence in question and the kinds of
circumstances in which it might be committed.
The second difficulty
concerned the extent to which an injury should be regarded as risked or
harmed when there is another
more serious offence covering the same or
similar behaviour. For example, a very serious assault on a person resulting
in lasting
injuries legally constitutes common assault (s 196 of the Crimes
Act 1961, maximum one year’s imprisonment), but it can also
be charged as
wounding with intent to cause grievous bodily harm (s 188 of the Crimes Act,
maximum 14 years’ imprisonment)
or another of the serious assault
offences. Another offence illustrating the same issue in a rather different way
is that of
12 Law Commission Study Paper
abduction of a young person under the age of 16 years for the purposes of
depriving a parent, guardian or caregiver of the possession
of that young
person (s 210 of the Crimes Act, maximum penalty seven years’
imprisonment). If the abduction is committed
for the purposes of marriage,
sexual connection, ransom or imprisonment, it can be charged as a more
serious offence under
s 208 or s 209, both with current maxima of 14
years’ imprisonment.
3.32
3.33
3.34
3.35
3.36
3.37
We took the view that, where such more serious offences existed, the
worst case of the lesser offence should be set at
the threshold point at
which the lesser offence tips over into the more serious offence. Otherwise
the offender is exposed to
a maximum penalty designed for conduct that is
essentially more serious than that with which he or she has been charged.
The level of harm value for the worst case of common assault was therefore
capped at the point below which an assault causes
injury (thus exposing the
offender to conviction on a more serious injuring charge). The level of harm
value for the worst case
of abduction under s 210 was similarly capped at the
point below which marriage, sexual connection, ransom or imprisonment
was
the motive.
The third difficulty concerned the extent to which we
should include in the worst-case scenario harm to an interest that
is not
caused directly by the offence in question but by more serious
concurrent offending. For example, in practice
disqualified driving is
generally accompanied by other offending such as driving with excess
blood alcohol or speeding;
although the disqualified driving, which
is fundamentally a challenge to a court order, does not in itself present a
threat to physical integrity, the offending accompanying it will generally do
so.
The approach we took was to exclude harm resulting from more serious
concurrent offending unless that concurrent offending is also
an ingredient of
the offence in question. In other words, our view is that the maximum penalty
for an offence should be set by reference
to a worst case scenario involving
that offence and any other less serious concurrent offending that will generally
be recognised
as an aggravating factor in sentencing for the lead offence.
Other more serious offences that are committed at the same
time should
be recognised by way of concurrent or cumulative sentencing for those offences
(according to the rules set out in
ss 84 and 85 of the Sentencing Act
2002).
For example, we included violence within the worst case
scenario for robbery and aggravated robbery because the actus
reus of
those offences (that is, the definition of the act constituting those
offences) includes violence. However, we
excluded any actual or potential
injury to physical integrity from the worst-case scenario for disqualified
driving, since
that is not part of the actus reus of that offence.
The
final difficulty concerned the extent to which specific offender
characteristics that aggravate the offence should be
included within the
worst case scenario. We decided that all such characteristics (such as a
substantial criminal record both
for the offence in question and other
offending, a breach of trust arising from the offender's occupation or
position, premeditation,
or the fact that the offender was on bail or
subject to a sentence at the time of the offence) should be assumed to be
part
of the worst case scenario. To the extent that the maximum penalty for
a particular offence excludes such characteristics, we
reduced the harm
score by taking into account the offender’s lesser culpability in
Step 4 of our methodology
(see below at paragraph
4.15).23
Our approach to this issue is essential to
understanding our harm scores and ranking. At first sight, an offence
description might
suggest that our ranking is wrong, and that the offence
does not belong with those placed alongside it. However, that is likely
to be
because the worst class of case devised under our approach excludes conduct
that is covered by a more serious
offence.
23 For example, the maximum penalty for a first or second offence of
driving while disqualified (Land Transport Act,
s32(3)) is three months'
imprisonment or a fine not exceeding $4500. Those who commit a third or
subsequent offence are liable
to two years' imprisonment or a fine not exceeding
$6000 (s 32(4)). We therefore reduced by 50 per cent the harm score for the
offence under s 32(3) to recognise the substantially lower culpability.
Maximum Penalties for Criminal Offences 13
CHAPTER 3: Methodology
Issue 2: Double counting
3.38
3.39
3.40
3.41
3.42
As outlined above, our methodology involved scoring the level of injury to
both the primary interest and the secondary interests
affected by the offence,
and aggregating them to produce the final harm score.
This is, of
course, unproblematic when the injuries to the various interests are independent
of each other. For example, in the
case of burglary one of the primary
interests affected is the material interest, but there will also be other
injuries to the
privacy and freedom from humiliation interest (through invasion
of the home, the accessing of personal items/documents etc) which
arise
independently of the material loss. There is therefore no difficulty in
simply aggregating the harm scores in relation
to each of the interests in
order to arrive at a total harm score.
However, sometimes different
interests are affected by the same sort of harm, so that a simple aggregation
would double count the
harm and result in an unjustifiably inflated harm
score.
For example, an offender who assaults a police officer
attempting to make an arrest substantially affects two interests: the physical
integrity interest and the governmental interest. However, the level of injury
to the governmental interest should not take into
account the violence
inflicted on the police officer, the violence is captured by the physical
integrity interest. Rather, the
level of injury to the governmental interest
should focus on the obstruction of a police officer acting in the execution of
his
or her duty and the attempt to defeat justice by evading arrest.
We
therefore decided that injuries to secondary interests ought to be added into
the total harm score only when they could be regarded
as independent (as
opposed to an integral component) of the harm caused to the primary
interest.
Issue 3: Indirect harms
3.43
3.44
3.45
In deciding what interests were affected, we also needed to determine
the approach to be taken to so- called “indirect
harms” that
can be consequential upon certain types of offending, notwithstanding that
those harms might be far removed
(in time or circumstance) from the prohibited
conduct. For example, the supply of Class A drugs presents a danger/harm to
those
that use the drugs (physical integrity), but can also have an adverse
effect on social relationships, cohesion and productivity.
In general,
we took the view that such indirect harms were relevant in assessing the
seriousness of an offence and ought to
be taken into account in measuring the
level of injury to the various interests. For example, we regarded the supply
of Class
A drugs as not only affecting the physical integrity interest but also
having an indirect but very high impact upon collective
welfare.
Sometimes, of course, the interest affected by the indirect
harm was the same as the interest affected by the direct harm. The overall
level of injury to the interest therefore needed to reflect both sorts of
harms.
Issue 4: Self-inflicted harm
3.46
We did not have regard to self-inflicted injury for the purposes of
determining the harm score for the physical integrity
interest. For example,
we did not regard possession of a Class A drug as causing or risking injury
to the physical integrity
interest, notwithstanding its potential to cause harm
to the person; the offence was scored as harming only the collective welfare
interest. That is because we do not think that the criminal law should be
used to protect one from oneself. In any event,
if self-harm had been
included, it would have required the creation of an entirely new
interest, since it would self-evidently
have required a much lower weighting
than harm to others.
14 Law Commission Study Paper
Issue 5: Level of injury for material support and amenity
interest
3.47
The following table provides the level of harm score for the material
support and amenity interest based on the dollar value
of the loss incurred.
This was the only such interest where it was possible to provide a table of
this sort because of the quantifiable
nature of the harm.
10 >$1M
9 >$750,000 but <$1M
8 >$500,000 but <$750,000
7 >$200,000 but <$500,000
6 >$100,000 but <$200,000
5 >$50,000 but <$100,000
4 >$10,000 but <$50,000
3 >$1,000 but <$10,000
2 >$500 but <$1,000
1 <$500
Issue 6: Offences posing potential rather than actual
harm
3.48
3.49
3.50
3.51
We needed to develop a protocol to score the level of injury to one or more
interests caused by offences that posed potential rather
than actual
harm.
In these cases, the level of injury was calculated by way of a
two-step process.24 The first step was to determine the level of
harm that would have resulted had the full offence been completed. The
second
step was to make an appropriate discount to the injury value to
recognise that the harm did not eventuate, but was risked.
The extent
of the discount to the injury value therefore depended on the nature of the
offence and the contingency of the risk
of harm. The following chart was used
to determine the harm score, depending on (a) the level of consequence from the
prohibited
conduct relating to the full offence (including type of consequence
and severity), and (b) the immediacy or remoteness of the
risk of that harm
arising.
Low risk of harm Medium risk of harm High risk of harm Harm is near
certain
Low consequence 1 1.5 2 2.5
Medium consequence 2 2.5 3 3.5
High consequence 3 3.5 4 4.5
For example, the offence
of possession of a knife under s 13A of the Summary Offences Act 1957 is
complete upon possession;
it does not require an intent to commit any other
offence and does not in itself cause any harm. It therefore poses only a risk
to
the physical integrity interest, and at a necessarily lower level than would an
attempted assault. We determined that it posed
a low risk to that interest, but
with a medium consequence, thus justifying a harm factor under the above
chart of 2.
24 A similar process is suggested by von Hirsch, Ashworth and Jareborg,
above n 19, at 214.
Maximum Penalties for Criminal Offences 15
CHAPTER 3: Methodology
Issue 7: Inchoate offences
3.52
3.53
3.54
3.55
3.56
As a related issue, we also needed to develop a protocol to score the level
of injury to one or more interests caused by inchoate
offences (that is,
offences that represent other uncompleted offences).
Attempts and
conspiracies are the two main categories of inchoate offences.
Attempts
are dealt with in s 311(1) of the Crimes Act, which provides that everyone
who attempts to commit an offence when
no punishment for the attempt is
expressly prescribed, is liable to imprisonment for not more than 10 years if
the maximum penalty
for the completed offence is life imprisonment, and in any
other case to not more than half the maximum penalty for the completed
offence.
Conspiracies are dealt with in s 310 of the Crimes Act, which
provides that everyone who conspires with any other person to commit
an
offence is liable to imprisonment for not more than seven years if the
maximum penalty for the offence itself exceeds
seven years, and in any other
case is liable to the same maximum penalty as that provided for the offence
itself.
A number of attempts or conspiracies are expressly provided for
as specific offences. These are as follows:
Crimes Act 1961
• Attempted treason (s 74(3)).
• Attempted piracy (s 95).
• Conspiring to commit piracy (s 96).
• Conspiring to bring false accusation (s 115).
• Conspiring to defeat justice (s 116).
• Attempt to obstruct, prevent, pervert, or defeat the course of
justice (s117(e)).
• Attempted sexual violation (s 129).
• Attempted sexual connection with dependent family member (s
131(2)).
• Attempted sexual connection with young person under 16 (s
134(2)).
• Attempted exploitative sexual connection with person with
significant impairment (s 138(2)).
• Attempted murder (s 173).
• Conspiracy to murder (s 175).
• Attempted conversion of the vehicle or other conveyance (s
226(2)).
• Attempted arson (s 268).
• Conspiring to prevent the collection of tax or rates through force
or intimidation (s 309).
Misuse of Drugs Act 1975
• Conspiring to deal with controlled drugs (s 6(2A)).
3.57
A number of the specific attempt offences exist because in the worst
class of case the attempt itself causes substantial
harm. For example, all of
the attempted sexual offences may cause harm that falls little short of the
completed offence, since
all that may be required to complete the offence is
the final act of penetration. A separate offence, with a higher maximum
penalty than that available under the generic attempt offence, is
therefore justified to recognise the gravity of the conduct.
There is a
similar need for a separate offence of attempted murder and attempted piracy,
since both may comprise very serious
injury accompanied by an intent to kill.
Moreover, the extent of the harm caused by these attempts arises partly from
the attempt
to commit the completed offence, so that the intent to do so is
captured by the harm
16 Law Commission Study Paper
score without the need to enhance culpability and without the need to adjust
for any additional element of risk. We therefore scored
and ranked these
offences simply by reference to the extent of harm to the relevant interests
in the usual way.
3.58
3.59
3.60
3.61
3.62
3.63
3.64
3.65
3.66
The reason for the existence of some of the other attempt and conspiracy
offences is also obvious: there is no completed offence
to which they precisely
relate. The offences in ss 115, 116, 117(e) and 309 of the Crimes Act fall into
this category. In this case,
the offences were scored and ranked by reference
to our approach to risk described above (paragraphs 3.48-3.51).
However,
it is difficult to discern the reason for the existence of the remaining
attempt and conspiracy offences, given the
generic regimes governing attempts
and conspiracies in ss 310 and 311 of the Crimes Act. None of them seem to
justify a different
approach from that taken in relation to attempts and
conspiracies more generally. For example, we do not know why attempted
treason
is explicitly addressed in s 74, nor why it has a maximum penalty that is the
same as that for the completed offence. Similarly,
we do not know why
attempted conversion of a vehicle or other conveyance is explicitly addressed
in s 226, nor why it has a
maximum penalty of only two years in comparison with
the maximum penalty of seven years for the completed offence.
We
therefore decided not to include these offences in our ranked list (see
further below at paragraph
4.40). We think that these offences ought to be repealed, but if they
remain they should have a maximum penalty that is in line
with the generic
approach taken in ss 310 and 311.
That gives rise to the question as to
what the maximum penalties under ss 310 and 311 ought to be. Attempts under s
311(1) can
be assumed to result in either the mere risk of harm or at the
most a level
of harm substantially below that caused by the completed
offence. When a harm score is developed on
this basis, it ends up placing the offence in a penalty category that is,
on current penalty levels, roughly half the penalty
category for the
completed offence. For example, the score for the offence of burglary
placed it in Category F, alongside
offences that predominantly have
current maximum penalties of 10 years’ imprisonment. Our scoring on the
risk rules
placed attempted burglary in Category K, alongside offences with
maximum penalties ranging from two to seven years’ imprisonment,
and an
average of a little under five years. We therefore do not think that any
change to the approach in s 311(1) is required.
The same cannot be
said for the approach to conspiracies under s 310. The maximum penalty
for conspiracies should
be set on the basis that the plan is not
carried through to fruition. An offender convicted of a conspiracy should
therefore
be subject to a maximum penalty that is substantially lower than
that available for the completed offence. It follows that in
our view the
maximum penalty in s 310 is inappropriate.
We wonder whether the
maximum penalty for conspiracies relating to offences punishable by seven
years or less was originally
set on the basis that a conspiracy might be
charged even when the offence to which the conspiracy relates is actually
carried out.
In our view, however, the appropriate charge in such circumstances
is the offence itself, with the fact of the conspiracy taken
into account as
an aggravating factor.
We are also mystified as to the rationale for the
approach to conspiracies relating to offences punishable by more than seven
years. A single maximum penalty for a conspiracy to commit sexual violation
and a conspiracy to commit, say, forgery, cannot be
justified.
Since a
conspiracy is further removed from the actual offence than an attempt, it
could be argued that it should have a lower score,
in accordance with the
overall approach we have taken to risk. However, the culpability associated
with a conspiracy is enhanced
by the fact that there is a common purpose to
commit a particular crime by two or more persons. On balance, these factors
more or
less weigh each other out. A conspiracy should therefore have the same
maximum penalty for a particular offence as an attempt
– that is, half
the maximum penalty that is prescribed for the completed
offence.
Maximum Penalties for Criminal Offences 17
CHAPTER 3: Methodology
3.67
3.68
3.69
In addition to attempts and conspiracies, there is a further category of
inchoate offence that is dealt with under s 311(2): inciting,
counselling or
attempting to procure any person to commit an offence, when that offence is
not in fact committed. This offence
is treated in the same way as an attempt,
with the same maximum penalty. Although the activity is further removed from
the completed
offence than an attempt, it has the added culpability arising
from the attempt to involve others in offending. In our view, it
should
therefore be treated in the same way as a conspiracy. We therefore do not think
that any change to the current approach
in s 311(2) is required.
We
note that inciting, counselling or attempting to procure murder is expressly
provided for as a separate offence in s 174 of
the Crimes Act, with a maximum
penalty of 10 years. We do not see any need for the existence of this
offence. It is adequately
covered by s 311(2), which provides for the
equivalent maximum penalty of 10 years when the completed offence carries life
imprisonment. We therefore think that s 174 should be repealed. We have not
scored or ranked it.
The remaining category of inchoate offence is
preparatory conduct that precedes an attempt and does not, in itself, cause any
of
the harms arising from the completed offence. In broad terms, we again scored
these offences simply by applying the risk rules (set
out above at paragraph
3.50). Our approach to s 55 of the Arms Act 1983 illustrates how this was
done. Under that section,
it is an offence to carry a firearm or other
weapon with intent to commit an offence punishable by three years’
imprisonment
or more. There is, of course, a risk associated with the mere
carriage or possession of firearms. Hence s 45(1) of the Arms Act
makes it an
offence to possess any firearm except for some lawful, proper and sufficient
purpose. We scored the latter offence
on the basis of a low risk, but high
consequence, to physical integrity. In relation to s 55, we took that as a
starting point.
However, we recognised that the intent to commit an
offence (which in the worst class of case would involve an intent to kill)
elevated the risk and introduced a risk to other interests as well (such as
material support), and we developed a harm score on
that basis. Thus, rather
than the intent to commit an offence being recognised by way of an enhancement
to culpability in Step
4 of our process, it was recognised by way of an
increase in the harm score under the risk rules set out
above.
18 Law Commission Study Paper
Chapter 4
Determining harm and culpability
OVERALL PROVISIONAL HARM SCORE
4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8
Steps 1 and 2 of our methodology provided us with a tool for
arriving at total harm scores for the imprisonable offences
contained in
the five Acts subject to the review. We achieved that by applying Step
3 of
our process in the following way:
• We constructed a worst case scenario for each offence, applying the principles discussed in paragraphs
3.28–3.37 above.
• We identified which interests were harmed under that
scenario.
• We then determined the extent of the harm to each interest in
order to arrive at a harm score for that interest, and added
the harm scores
together to provide a total harm score.
This exercise produced a
provisional ranked list of offences according to their respective total
harm scores, which represented
the harm caused by the worst class of case
of each offence relative to other offences.
There were a number of
offences that we put to one side and excluded from our provisional
ranking. These fell into three categories.
First, as noted above at
paragraph 3.60, we excluded a number of specific attempt and conspiracy
offences that in our view ought
to be repealed and dealt with instead under
the generic conspiracy and attempt provisions in ss 310 and 311 of the Crimes
Act
1961.
Secondly, again as noted above at paragraph 3.68, we excluded
the offence of counselling or attempting to procure murder under
s 174 of the
Crimes Act, since that is fully covered by the procurement offence in s 311(2),
and with the same maximum penalty.
Thirdly, we excluded the offence
under s 249(2) of the Crimes Act of dishonestly accessing a computer system
with intent to obtain an advantage or cause a loss that
carries a maximum penalty of five years’ imprisonment. The offence
under s
249(1) involves dishonestly accessing any computer system and
thereby obtaining an advantage or causing a loss, and carries a
maximum penalty of seven years’ imprisonment. The difference between
the two sections lies in the italicised wording. Section 249(2)
therefore appears to be an attempt to commit the offence
under s 249(1). We
can therefore see no reason why it should not be dealt with under the generic
attempt provision and suggest
that it should be repealed. However, if it were
to be retained as a separate offence, we think that it should have half the
maximum
penalty of the completed offence in accordance with the general
approach to attempts. Accordingly, the present maximum penalty
of five
years’ imprisonment is too high.
Finally, we excluded five other
offences that we found it difficult to score, either because they are fully
covered by another
offence on the statute book and therefore redundant, or
because they are outdated.
The Law Commission recommended the repeal of
two of these offences in the report Review of Part 8 of the Crimes Act 1961:
Crimes Against the Person:25 s 153(2) of the Crimes Act
(failure by an employer to provide necessaries to a servant or apprentice
under the age of 16 years),
and s 199 of the Crimes Act
(acid throwing
with intent to injure or disfigure).
25 Law Commission Review of Part 8 of the Crimes Act: Offences Against
the Person (NZLC R111, 2009).
Maximum Penalties for Criminal Offences 19
CHAPTER 4: Determining harm and culpability
4.9
4.10
4.11
4.12
4.13
4.14
The Law Commission recommended the repeal of the third offence in
the report Controlling and Regulating Drugs: A Review of the Misuse of
Drugs Act 1975:26 s 21 of the Misuse of Drugs Act 1975
(publishing information likely to lead to the identification of a drug in
contravention
of an order from the court or coroner prohibiting such
publication). We assume that the rationale of this provision, which dates
back
to the Narcotics Act 1961, was concern that publication of the name of a
controlled drug would encourage others to use or
deal in it and, by doing
so, cause harm to themselves or others. However, we are not aware of an
order being made under this
provision in recent times. It is also in conflict
with modern social attitudes and principles. This includes, for example, the
view that, wherever possible, it is preferable to make information available to
enable individuals to make their own assessment
about what is in their best
interests. In short, we do not think that it is in the public interest to
prohibit publication of
the name of a drug.
The other two offences
(blasphemous libel and administering an oath to commit an offence under ss 80
and 123 of the Crimes Act respectively)
have not been the subject of a
prosecution for many years and it is hard to imagine circumstances in modern
society when they would
be. They should also be repealed.
Finally, we
excluded three offences in the Summary Offences Act 1981 that have
direct counterparts (with a more severe
maximum penalty) in the Crimes Act:
common assault (s 9), wilful damage (s 11) and seeking donations by a false
pretense (s
15). It has always been difficult to justify these offences,
since they have enabled the prosecution, in respect of the
same conduct,
to lay different charges with essentially identical offence components but
different trial procedures and different
maximum penalties, depending upon
whether the charge is laid under the Summary Offences Act or the Crimes
Act.
The only possible benefit arising from this duplication lies in the
fact that the offences under the Crimes Act have been eligible
for jury trial,
but not the offences under the Summary Offences Act. In relation to common
assault, the raising of the jury
trial threshold in the Criminal Procedure Act
2011 to offences carrying a maximum penalty of two years or more will mean that
even
this possible benefit will disappear. In any event, we do not think that
such a benefit justifies the current offence structure.
It is difficult
to see why a charge under the Summary Offences Act should be available for a
trivial form of intentional damage,
while an equally trivial offence of
shoplifting or other petty theft or of unlawful interference with a motor
vehicle can only
be charged under the Crimes Act. More significantly, we think
that the offence structure leaves too much unguided discretion
in the
hands of the police, effectively allowing them to select the maximum penalty
to which the offender will be exposed.
If offences are to be laid on the
grounds of relative seriousness, the features that distinguish them on that
basis (for example,
the value of the property damage) ought to be incorporated
into the substantive offences themselves and not left to prosecutorial
discretion.
Accordingly we think that these three offences in the
Summary Offences Act ought to be repealed, and for that reason we have
not
ranked them. If they were to remain, they would have the same ranking as
the equivalent offences in the Crimes Act
and thus attract the same maximum
penalty, which would destroy the rationale for their existence.
ADJUSTING FOR CULPABILITY
4.15
4.16
Having done our provisional ranking, we then applied Step 4 of our process.
This involved consideration of the extent to which any
harm scores, and the
consequent ranking of the offence to which they related, needed to be adjusted
to reflect any particular
culpability features inherent in the offence
that either increased or reduced its seriousness in the worst class of
case.
A harm score on its own is not sufficient to provide an
appropriate ranking of offences according to seriousness. That
is because,
as noted above at paragraphs 2.6–2.10, there are two components to the
seriousness of an offence: the harm
it causes, and the culpability of the
offender in relation to it. The
26 Law Commission Controlling and Regulating Drugs: A Review of the
Misuse of Drugs Act 1975 (NZLC R122, 2011).
20 Law Commission Study Paper
harm score therefore required modification to reflect any differences in
culpability between one offence and another.
4.17
4.18
4.19
4.20
There is, of course, a wide range of aggravating and mitigating factors,
common to a number of offences that affect the culpability
of an offender in an
individual case, and will be taken into account by the court in determining
the appropriate sentence. However,
such factors are not our concern here,
since the worst class of case assumes the entry of a guilty verdict after a
defended trial,
the presence of aggravating factors at the highest level
possible for that offence and a corresponding absence of mitigating factors.
Rather, our concern is with any culpability element intrinsic in the offence
as expressed in the statute that increases or reduces
the culpability that
would otherwise be assumed to attach to the worst class of case.
How
then does intrinsic culpability vary from one offence to another? It does so
primarily by reference to differences in the
mental element required for the
offence. As noted by von Hirsch, “the gravity of conduct varies with
whether the actor’s
behaviour was purposeful, knowing, reckless, or
negligent”.27 On this basis, an offence that requires the
offender to have acted purposefully (that is, intentionally) indicates greater
culpability
than an offence committed negligently.
However, the fact
that the mental element (termed the mens rea) of a particular offence is
lower than intent (for example,
recklessness or negligence) does not in
itself mean that the harm score should be modified to reflect reduced
culpability.
That is because, even in relation to an offence that does
not require proof of intention or knowledge, such a mental
element will
generally be integral to the worst instance of that offence. For example,
the mens rea of the offence of
sexual violation by rape under s 128 of
the Crimes Act is negligence: an offender who has no reasonable grounds for
believing
that the victim consented to the sexual intercourse is guilty of the
offence. However, the most serious instance of the offence
clearly entails an
intent to have sexual intercourse in the knowledge that the victim is not
consenting, which is the reason why
the maximum penalty is currently set at 20
years’ imprisonment.
It follows that, regardless of the
express or implied mens rea of an offence, its intrinsic culpability is
therefore
generally equivalent to other offences. Notwithstanding this,
there were a number of adjustments that needed to be made
to harm scores
to recognise a particular level of culpability intrinsic
to an
offence.
Existence of two or more offences differentiated only by mental
element
4.21
Most of the offences requiring adjustment to reflect culpability have the
same actus reus (the physical element) and are differentiated
only by the
mens rea, so that they necessarily vary in culpability. The Victoria Crimes
Act 1958 demonstrates a gradation of offences on this basis well. The offences
of causing serious injury are categorised as follows (emphasis
added):
16. Causing serious injury intentionally
A person who,
without lawful excuse, intentionally causes serious injury to another
person is guilty of an indictable offence.
Penalty: Level 3 imprisonment (20
years maximum).
17. Causing serious injury recklessly
A person
who, without lawful excuse, recklessly causes serious injury to
another person is guilty of an indictable offence.
Penalty: Level 4
imprisonment (15 years maximum).
24. Negligently causing serious
injury
A person who by negligently doing or omitting to do an
act causes serious injury to another person is guilty of an indictable
offence.
Penalty: Level 6 imprisonment (five years
maximum).
27 Von Hirsch, above n 18, at 71.
Maximum Penalties for Criminal Offences 21
CHAPTER 4: Determining harm and culpability
4.22
4.23
This creates separate offences for the same prohibited conduct based
solely on different mental states. It is therefore culpability
rather than
harm that makes one offence more serious than another. While the harm
caused by each is the same, the harm
score for the offences of
recklessness and negligence would require adjustment downwards to reflect
their lower culpability.
In New Zealand, the offences requiring
adjustment because they differ from another more serious offence only in their
mental element
are categorised below.
Offences where there is an intent to cause a lesser consequence than
materialises
4.24
4.25
There are offences that involve an intent to cause a lesser consequence
than materialises. Where that lesser intent involves
a high level of
culpability, the approach we took was to make only a small
adjustment:
• Manslaughter and murder are both offences of culpable homicide. By
definition, manslaughter (s 171 of the Crimes Act) is culpable homicide
where the offender’s mens rea is below that required for murder (as
listed in ss 167 and 168
of the Crimes Act). In the worst class of case of
murder, there is an intent to kill. In the worst class of case of
manslaughter, there can be
no more than an intent to inflict grievous bodily
harm without appreciation of the risk of death. However, this represents a high
level of culpability, so that the harm score for manslaughter was reduced by
only 20 per cent.
• Similarly, the offence of wounding with intent to injure under s
188(2) of the Crimes Act entails an intent to cause a lesser consequence
(injury) than actually materialises; an intent to cause grievous bodily harm
is captured by the offence in s 188(1). The high level of culpability
again justified a reduction of only 20 per cent in
the harm
score.
There are some offences in this category that have an intent as
to a much lesser consequence. In these cases, the culpability
is small and the
adjustment required accordingly more substantial. For example, the offence of
poisoning with intent to cause
annoyance under s 200(2) of the Crimes Act
entails an intent to inflict a very low level of harm by comparison with the
potential consequences of the act itself (since an
intent to cause any injury
would amount to the offence of injuring with intent to injure). A reduction in
the harm score of 67 per
cent was therefore made.
Offences that involve an intent as to an unlawful act but a lesser
mental state as to consequence
4.26
4.27
4.28
4.29
There are a number of offences that involve an intent to engage in
unlawful conduct, but no intent to cause any harmful consequence
as a result of
that conduct.
Where there is recklessness as to the consequence, we
decided that a reduction of 25 per cent is appropriate. For example,
the
worst instance of an offence of driving with excess blood or breath alcohol,
under s 56 of the Land Transport Act 1998, or
of driving under the influence
of drink or drugs so as to be incapable of having proper control of the
vehicle under s 58,
will involve significant damage to property as a result
of an accident. However, if there were intention as to the damage,
it would
give rise to the offence of intentional damage under s 269(2) of the Crimes
Act. The harm score was therefore reduced by 25 per cent to recognise that the
most culpable mental element in relation to that harm
is recklessness.
A
similar, but less obvious, example in this category is the offence of
disorderly assembly under s 5A of the Summary Offences
Act. In the worst
class of case, the harm caused by that offence will be identical to that caused
by the offence of unlawful assembly
under s 86 of the Crimes Act. However, the
latter offence requires a “common purpose” between the
co-offenders (ie an intent to cause that harm).
The absence of such a purpose
by the co-offenders involved in an offence under s 5A again necessitated a
reduction of 25 per cent in the harm score to reflect the fact that the most
culpable mental element is recklessness.
Where there is only negligence
as to the consequence, we determined that a much greater reduction of 50 per
cent is required. For
example, the worst instance of the offence of injuring by
an unlawful act (s 190 of the Crimes Act) comprises a mens rea of negligence.
So too does the worst class of case of allowing a dangerous trap to remain in
place. That
is because in both cases intentionally or recklessly injuring falls
within s 189(2). Similarly, the worst class of case of importing
a precursor
substance under s 12AC(1) of
22 Law Commission Study Paper
the Misuse of Drugs Act is negligence as to illegal supply and the harm
resulting from it, since an intent in that respect would
engage the more serious
offence under s 12AB(1). In all cases, the harm score was reduced by 50 per
cent to reflect the lesser
culpability.
Offences that do not involve an intended unlawful act and have a
lesser mental state as to consequence
4.30
4.31
4.32
4.33
A number of offences have no intent as to unlawful conduct, and a lesser
mental state than intent as to the consequence that
ensues from that
conduct. In these cases, we took the view that culpability is relatively
low, that offenders carry
much less responsibility for the consequence, and
that a substantial adjustment to the harm score is therefore
required.
The offences of driving dangerously or recklessly causing
injury or death under s 36 of the Land Transport Act, and
of driving
with excess blood or breath alcohol causing injury or death under s 61, at
first sight do not appear to fall into
this category because, in the
worst class of case, there is an intent to engage in the unlawful conduct
(dangerous, reckless
or drunk driving) and a consequence of death or serious
injury. But a discount of only 25 per cent in the harm score
to reflect
the recklessness as to consequence (as in paragraph 4.27) would have placed
these offences alongside others with
current maximum penalties of 10-14
years. That seems to us inappropriate, because the most serious instances of
these cases
can (and should) be charged with manslaughter, or wounding or
injuring with reckless disregard. The Land Transport Act offences
exist
because of a perceived reluctance by juries to convict people on these more
serious charges in anything other than
the most egregious of cases. We
therefore adjusted ss 36 and 61 for culpability on the basis that the
mental element in the
worst class of case is recklessness as to both conduct
and consequence, and reduced the harm score by 50 per cent.
Where there
is negligence as to the consequence, an even greater adjustment of approximately
75 per cent is justified. For example,
in the worst class of case of the
offences of careless driving causing injury or death under s 38(2) of the
Land Transport
Act, the mental element is negligence rather than intent. The
same applies to the offence of causing bodily injury or death
through the
careless use of a firearm under s 53(1) of the Arms Act 1983. In both cases, a
reduction of about 75 per cent was made.
A range of offences under
the Misuse of Drugs Act fall into the same category. For example,
the offence under s
22(2) of failing to comply with a ministerial notice
regarding the importation or supply of a controlled drug comprises a
mens
rea of negligence. That is because other offences (such as the
intentional or reckless importation or supply of a
controlled drug in s 6
of the Act) are available for offences involving an intent to import or
supply unlawfully. Again, the
harm score was reduced by 75 per cent to recognise
the entirely different character of the conduct from intentional or reckless
importation or supply.
Offences that have an ulterior intent as to a consequence that does
not materialise
4.34
4.35
There are some offences with the same actus reus and basic mens rea, but one
of the offences additionally has an ulterior intent
that enhances culpability.
Generally, the increase in the harm score that is required to reflect the
additional culpability
is small. That is because the offence already
entails a harmful consequence, and the more serious intended consequence
that
does not materialise is a matter of degree rather than kind. For example,
the offence of injuring with intent to cause
grievous bodily harm under s
189(1) of the Crimes Act is distinguished from the offence of injuring
with intent to injure under s 189(2) only by the ulterior intent as to
grievous
bodily harm. However, the distinction in terms of intent is a
fine one and is often difficult to apply in practice. We therefore
determined
that an upwards adjustment of only 20 per cent in the initial harm score
for the former offence was justified
(ie the equivalent of a 10 per cent
reduction when culpability is reduced).
We took the same approach to
the offence of doing an indecent act with intent to insult or offend under s
126 of the Crimes Act. That can be distinguished from the related offence of
doing an indecent act in a public place under s 125 only by the ulterior
intent
to insult or offend, since the worst class of case under s 126 will also be in a
public place. An upwards adjustment of about
20 per cent in the initial harm
score was again made.
Maximum Penalties for Criminal Offences 23
CHAPTER 4: Determining harm and culpability
4.36
The offence of assault with intent to injure under s 193 of the
Crimes Act did not fit this general approach. Both that offence and a
common assault under s 196 of the Crimes Act require an assault (the
actus reus) and an intention to inflict force (the basic mens rea), but
the former offence
has an additional mens rea requirement of intending to
injure when committing the assault. The difference between the
culpability associated with the intentional application of force that does
not cause injury (and therefore inflicts only minor
harm) and the culpability
associated with an intent to inflict significant injury is substantial. We
therefore decided that it
required a different approach from other offences in
this category, and we doubled the harm score (ie the equivalent of a 50 per
cent
reduction when culpability is reduced).
Offences where the offender is only indirectly responsible for the
harm that is intended
4.37
4.38
There are some offences that require adjustment for culpability because
the offence is one or more steps removed from the direct
infliction of the
harm itself, so that the offender, while intending the harm caused, is
only indirectly responsible for
it. For example:
• An offender who commits an offence by impeding rescue under s
204 of the Crimes Act will, in the worst class of case, contribute to the death
of the person whose rescue is impeded. However, because he or she is
not
directly responsible for the injuries causing the death, some small reduction of
10 per cent in the harm score was made to recognise
the indirect nature of the
offender's involvement.
• An offender who abducts another for the purposes of marriage or
sexual connection and thus commits an offence under s 208
of the Crimes Act
does not actually commit sexual violation himself or herself, since he or she
would in that event be charged with it. While
sexual violation by a
third party will occur in the worst class of case, and harm arising from it
will be inflicted, a 10
per cent reduction in the harm score was again made for
the same reason.
In a few cases, the harm is even more remote from the
offence, with a number of intermediate steps by others being required before
it can materialise. For example, a person who commits the offence under s
12AB(1) of the Misuse of Drugs Act of importing any
precursor substance knowing
that it will be used to produce or manufacture any controlled drug, is only
indirectly responsible
for subsequent harmful drug use. The precursor substance
is not in itself harmful and must undergo a subsequent manufacturing process,
followed by distribution and use before that harm arises. A greater reduction
of 50 per cent to reflect that diminished culpability
was therefore
required.
Omissions
4.39
4.40
4.41
4.42
There are a few offences that, in the worst class of case, cause harm
through the offender's omission rather than a deliberate
act. This justifies
some small reduction in recognition of the fact that an omission to act carries
somewhat less culpability than
a deliberate act. These offences fall into two
categories.
First, there are those where, in the worst class of
case, the omission is deliberate and directly causes the harm. For
example, in the worst class of case of the offence of allowing a dangerous
trap to remain in place under s 202(2) of the Crimes Act, injury is
caused as a result of a negligent omission (since intentional or reckless
injury is covered by s 189(2)). The
harm score was reduced by 50 per
cent to reflect the negligence component (see paragraph 4.29 above). A further
reduction
of 25 per cent was then made to reflect the fact that the harm is
caused by an omission rather than an act.
Secondly, there are
offences where the offender’s role is purely passive and indirectly
contributes to a harm that
is inflicted by another. In such cases, a much
greater discount than 50 per cent is justified. For example, the worst
class
of case of being a party to treason under s 76 of the Crimes Act entails
an offender who, knowing that someone else is about to commit treason, fails
without reasonable excuse to use reasonable
efforts to prevent it when he or
she is in a position to do so. The harm score was reduced by a further
reduction of 50 per cent
to recognise that the offender's contribution to the
harm caused by the offence is purely passive.
Similarly, under the
recently created s 195A of the Crimes Act it is an offence if a person who
lives in the same household as a child or vulnerable person, or is the staff
member of an institution
in which such a
24 Law Commission Study Paper
person resides, knows that the victim is at risk of death, grievous bodily
harm or sexual assault and fails to take action to prevent
that. In the worst
class of such a case, the victim will have died and the offender will have known
that the harm was being inflicted
and have done nothing to prevent it, although
without being a party to it. While there can therefore be no reduction in the
harm
score on account of a lesser mens rea, the fact that the actual
violence is inflicted by another justifies a reduction of 50
per cent in
recognition of the offender's limited contribution to the harm.
Offences that incorporate some element of
mitigation
4.43
Finally, there are some offences that require adjustment on account of
culpability because their statutory definition, expressly
or by implication,
incorporates some elements of mitigation which will accordingly be present in
the worst class of case. These
did not lend themselves to a standard approach.
The extent of the adjustment depended upon an assessment of the degree of
mitigation
in each case. For example:
• The offence of infanticide under s 178(1) of the Crimes Act is
committed by a woman who causes the death of any child of hers under the
age of 10 years, where at the time of the offence
the balance of her mind was
disturbed by reason of giving birth, by reason of the effect of lactation or
by reason of a disorder
consequent upon childbirth or lactation. The harm
score was reduced by one third to recognise the mental impairment inherent
in
the offence.
• The offence of homicide as part of a suicide pact under s 180(1) of
the Crimes Act incorporates a factor that is, presumably, regarded by the
legislature as mitigating: the fact that the offender killed with
the
agreement of the victim and intended to commit suicide thereafter, indicating
the existence of some mental impairment. However,
in this case the reduced
culpability is arguably small; we determined that it justified only a 10 per
cent reduction in the
harm score.
• The offence under s 256(2) of the Crimes Act of forging a
document, knowing it to be false, with the intent that it be used or acted
upon as genuine, does not involve
any personal benefit to the offender,
since that is covered by the more serious offences in ss 256(1) and 257. The
harm score was accordingly reduced by 20 per cent.
• The offence of driving while disqualified as a first or second such
offence, under s 32(3) of the Land Transport Act,
includes the inherent
mitigation attaching to an offender with only a short relevant criminal
history and the harm score was
accordingly reduced by 50 per cent. Offenders
with a longer criminal history are captured by the offence of driving while
disqualified
as a third or subsequent such offence under s 32(4) of the Land
Transport Act, with a higher maximum penalty.
COMPARING THE PROVISIONAL RANKING WITH CURRENT MAXIMUM PENALTIES AND
SENTENCING PRACTICE
4.44
4.45
4.46
Our provisional ranking was only the starting point for determining where
offences should sit relative to each other. In recognition
of the necessarily
blunt nature of our scoring tool, we needed to consider the outcome of its
application in the light of existing
statutory maxima and recent sentencing
practice. We envisaged that these comparisons would require adjustments to be
made to
the provisional ranked list.
If one of the reasons for
undertaking a review of maximum penalties is because they may be outdated and
inconsistent, it may seem
incongruous to take into account existing maxima
and current sentencing practice that stems from those maxima, when
considering
offence seriousness. Such concerns are not without merit. To
rely too much on current maxima and sentencing practice would
risk repeating
some of the anomalies that already exist in the maximum penalties
regime.
However, current maximum penalties do represent, at least in
theory, the legislature's view of the relative seriousness of the prohibited
conduct at the time of their enactment. Any obvious discrepancies between those
penalties and our provisional ranking therefore
required review as a check on
the way in which we had scored those offences. Similarly, to the extent that
recent sentences reflect
the worst class of case and indicate judicial views of
relative seriousness, they provide an additional check on our
scoring.
Maximum Penalties for Criminal Offences 25
CHAPTER 4: Determining harm and culpability
4.47
4.48
4.49
4.50
4.51
4.52
4.53
4.54
4.55
It transpired that we were able to make relatively little use of data on
current sentencing practice. We had intended that, drawing
on data made
available to the Sentencing Establishment Unit within the Law Commission, two
forms of sentencing data would be collated:
• the highest individual sentence imposed on an offender for each offence during 2004, 2005 and 2006;
and
• the highest five per cent of sentences imposed for each
offence during 2004, 2005 and 2006. In the event, however, we identified
a
number of difficulties in making use of this data.
First and most obviously,
since the Sentencing Act 2002 requires that the maximum penalty be reserved
for the worst class of
case, it might be expected that sentencing
practice would reflect that penalty, whether or not it is correctly set.
The
fact that sentences close to the current maximum are sometimes imposed is
therefore not enough to conclude that it is appropriate.
Secondly,
because almost all sentences below the maximum either do not represent the
worst class of case in terms of offence
seriousness or have significant
mitigating factors relating to the offender, limited weight can be placed
upon them in determining
the harm score for maximum penalty purposes. The
absence of any sentences at or near the maximum may be a function of the low
frequency of worst class cases, since the frequency will vary from one offence
to another.
Thirdly, a proper assessment of current sentencing practice
against the maximum needs to take into account the deduction for
a guilty
plea (present in more than 80 per cent of sentencing decisions) which may
amount to as much as 25 per cent.28 Thus the fact that the worst
class of case does not receive the maximum does not necessarily indicate that
there is anything wrong
with the maximum, since the judge’s starting
point may well have been the maximum.
Fourthly, the worst class of
case of some serious offences (particularly sex offences) results in the
imposition of the
indeterminate sentence of preventive detention, so that the
use of finite sentences cannot readily be positioned against the
determinate
maximum sentence.
It follows that current judicial sentencing practice is
of limited utility in identifying anomalies in current maximum penalties.
It is
useful in that respect primarily when there is a substantial gap between the
most severe sentence recently imposed for an
offence and the maximum penalty
provided for it (potentially indicating a judicial view that the maximum is too
high), or there
is a clustering of sentences near to the maximum (potentially
indicating a judicial view that the maximum is too low). Some
examples of
the former can be identified, and we discuss those later (see below at
paragraphs 6.31-6.36).
However, the comparison between our provisional
ranking and current maximum penalties did lead to some adjustments in our
ranking.
First, we determined that our score for murder, which in the
worst class of case would involve multiple victims, under-weighted
the harm
to the relevant interests and did not sufficiently recognise the
overriding value of the sanctity of life.
We adjusted it to have the highest
ranking, consistent with the current maximum penalty. For the same reason, we
adjusted the
ranking of manslaughter (s 177 of the Crimes Act), killing an
unborn child (s 182), failure to protect a child or vulnerable adult (s 195A),
and homicide as part of a suicide pact (s
180(1)).
28 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
26 Law Commission Study Paper
4.56
Secondly, as noted above at paragraph 3.57, the offences of attempted sexual
violation and assault with intent to commit sexual
violation did not lend
themselves to scoring on the usual attempt rules because, in the worst class
of case, they may well inflict
on the victim almost all of the harm that
results from a completed offence of sexual violation. Even though we took
this into
account in scoring these offences, we found that our scores did
not adequately reflect the reality of the conduct and
instead ranked
the offences as equivalent to, for example, injuring with intent to cause
grievous bodily harm. We adjusted
the ranking so that the offences were
placed alongside offences such as robbery and dealing in Class A
drugs.
Maximum Penalties for Criminal Offences 27
CHAPTER 5: Devising and consulting on draft penalty
categories
Chapter 5
Devising and consulting on draft penalty
categories
DETERMINING PENALTY CATEGORIES
5.1
5.2
Having finalised our ranking, we then turned to Step 6 of our
methodology: the development of draft penalty categories. The
adjusted
ranked list from Step 5 was divided into a number of categories using
natural breaks that appeared between
clusters of offences. The result
grouped offences of similar seriousness together in the same penalty
category. The categories
that we developed for this purpose (after the
adjustments described in this chapter) are set out in Appendix D.
We
found that our scoring tool was not always sensitive enough to make
the necessary distinctions between one offence
and another and that there
was a need to shift some offences to a higher or lower penalty category in
order to adequately distinguish
them from other cognate offences. For
example:
• Under s 267(3) of the Crimes Act 1961, it is an offence
punishable by five years’ imprisonment intentionally
to damage any
property by fire or explosive, with reckless disregard for the safety of any
other property. Because damage to property
belonging to others is covered by
the offences in s 267(1) and (2), the actual damage under this offence is
limited to the
offender's own property; there is no more than a risk of
damage to the property of others. Although the harm score placed
the
offence in Category I, we moved it to the bottom of Category J, in order to
distinguish it from, for example, the offence
of intentionally or recklessly
destroying the property of others (by means other than fire) under s
269(2).
• The offence of supplying a Class C controlled drug to a person
under 18 under s 6(2)(d) of the Misuse of Drugs Act 1975,
or selling it to
an adult under s 6(2)(e), was moved down one category (from Category G
to Category H) so that it was less
far removed from the cognate offence of
supplying a Class C drug under s 7(2)(b). While the former offence is clearly
more serious,
in that it is characterised by supply to a young person and/or
for profit, that difference did not seem to justify a separation
of five
penalty categories.
• The offence of aggravated careless use of a motor vehicle
causing injury or death under s 39(1) of the Land
Transport 1998 –
that is, careless use combined with some other traffic infringement
– was moved down one category
(from Category K to Category L) in order
to ensure that it was only one penalty category above careless use causing
injury
or death, since in practice there is very little difference between
aggravated careless use and careless use.
• Under s 14 of the Summary Offences Act 1981 it is an
offence to possess burglary tools in circumstances
that show a prima
facie intent to use them for burglary, punishable by three months’
imprisonment. This is to be distinguished
from the offence of possession of
burglary tools with intent to use them under s 233 of the Crimes Act,
currently punishable
by three years’ imprisonment. On our scoring, they
were ranked only one penalty category apart. However, since
the latter
offence requires proof of intent while the former requires no more than
proof of possession in suspicious
circumstances, we thought that this did not
adequately differentiate between the two. We therefore shifted s 14 down one
penalty
category (from Category M to N).
28 Law Commission Study Paper
5.3
We also found that some offences that were close to the cusp between
penalty categories needed to be shifted to a higher
or lower category in
order to ensure that cognate offences that on their face belong together
were not being placed in
different categories. For example:
• Sections 188(1), 200(1) and 201 of the Crimes Act were shifted to
Category C from Category D; and
• Sections 39(1) and 62 of the Land Transport Act were shifted to
Category K from Category L.
PUBLIC CONSULTATION ON PENALTY CATEGORIES
5.4
5.5
5.6
5.7
5.8
5.9
5.10
Once the draft penalty categories from Step 6 had been finalised, we
engaged the market research firm Colmar Brunton to undertake
some targeted
public consultation. Our aim was to ascertain whether the approach taken by
members of the public in assessing
offence seriousness and offender culpability
was in line with our methodology, and, if not, the nature of any
discrepancies.
In order to do this, we gave Colmar Brunton 28 scenarios
that we considered fell within the worst class of case for a range of
selected offence categories. Colmar Brunton then circulated those scenarios
to 62 people who had agreed to participate in eight
focus groups. They were
asked to rank the scenarios in order of seriousness and return the results
to Colmar Brunton before
the focus groups were held.
The composition and
location of the focus groups are set out on page 7 of the Colmar Brunton
report, which is attached as Appendix
C. Although discussions amongst the
participants were lengthy and wide ranging, they were essentially taken
through the following
steps:
• They were asked a set of general questions about the extent
to which they had found the exercise difficult and
the sorts of factors
that they had taken into account in ranking the scenarios.
• They received a spreadsheet setting out the overall rankings of all
group participants.
• Where there were large discrepancies in the way in which
individual scenarios were ranked, the facilitator probed
for the reasons
underlying the individual rankings and generated group discussion about the
validity of those reasons.
• Individual participants were then given the opportunity to change
their initial ranking in the light of the discussion.
The results of
the exercise are set out in full in the report. Of most relevance to us is
the dispersal in rankings that
is demonstrated by the diagram on page 49 of
the report, and the discrepancies between our ranking and the group
post-discussion
ranking that is set out in the table on page 47.
Perhaps
the most significant finding was that, even after the group discussion,
there was a very wide dispersal of views
around the median ranking in
respect of all of the offences in the middle range of seriousness. In
respect of a couple
of offences (scenarios 16 (Nikolas) and 18 (Angela)), there
was very little agreement at all. Moreover, in this middle range,
focus
group participants not only frequently disagreed with each other, but also
often ended up with a median ranking substantially
at odds with our
own.
This is perhaps not surprising. Views about the seriousness of
offending are heavily value-laden and significantly influenced
by a
person’s upbringing, culture and individual experience. It
demonstrates, if nothing else, the need for a systematic
methodology in
assessing what maximum penalty should attach to particular offences. There
may end up being little common
agreement about the basis for that methodology,
but at the least it would mean that all offences were being approached in the
same
way.
However, there were some systematic differences
between the approach taken by the focus group participants and
our own
approach. We reviewed our scoring in the light of those
differences.
Maximum Penalties for Criminal Offences 29
CHAPTER 5: Devising and consulting on draft penalty
categories
Physical integrity
5.11
5.12
5.13
5.14
In line with our methodology, participants generally saw physical
integrity as the most important factor in assessing seriousness.
However, there
were two respects in which their approach to physical integrity somewhat
differed from our own. In neither
case did we think that they
justified a change in our approach.
First, participants sometimes
had a natural emotional response when confronted with scenarios that
involved victims with
whom they could identify, perhaps because the harm
was immediate and obvious or because they felt that “it might be
them
one day”. They were therefore likely to rank the crimes in those
scenarios as more serious than others that inflicted
as much or even greater
harm. However, in our view this is not an appropriate basis for determining
relative seriousness. We assessed
the level of harm on a more objective basis,
which accounted for some of the discrepancies between our ranking and
theirs.
An example of this can be found in the comparative rankings of
scenarios 11 (Ted) and 12 (Tony). We ranked the former 11th and
the latter
12th, while the focus group participants ranked them 22nd and 3rd respectively.
The former was a scenario comprising
the offence of making threats of
widespread harm to people or property under s 307A of the Crimes Act, and
entailed a hoax that
animals on a particular farm had been deliberately
infected with foot and mouth disease and that other farms would be similarly
infected. The harm, though diffused, was widespread and substantially
affected the livelihood of a large number of farmers
and the economy as a
whole. The latter was a scenario comprising the offence of ill-treatment
or neglect of a child or
vulnerable adult under s 195 of the Crimes Act, which
entailed on- going low level violence against the offender’s eight
year
old son combined with other forms of abuse and serious neglect. Clearly the
focus group participants more readily related to
the harm caused by the latter
than the former. However, our scoring of the former took into account the
substantial actual or
potential aggregate harm to the variety of interests
affected by it and hence placed the two offences at an equivalent level. We
note
that this is more or less consistent with their current maximum penalties. We
therefore saw no need to change our scoring
in the light of the focus group
results.
Secondly, participants tended to attach a great deal of weight
to the vulnerability of a victim (which is often an aggravating
feature
underlying the worst class of case), and therefore regarded cases with young or
elderly victims as more serious because
of this than we did. Perhaps the most
obvious example of this was scenario 25 (Dominik), which involved an assault
on an elderly
person in a rest home that did not cause any significant
injury. While we ranked it 25th, their median ranking was 13, putting
it
ahead of an offence involving the presentation of a loaded sawn-off shotgun at
police officers in order to evade arrest.
Material support and amenity interest
5.15
5.16
In relation to the material support and amenity interest, focus group
participants regarded financial loss as serious, and at
least in that
respect were in agreement with our own approach. However, they again differed
from us in two significant ways,
and again we saw no need to change our
approach after a review of it.
First, at least by comparison with
physical integrity, most participants tended to give it a somewhat lower
weighting than we did.
Indeed, they tended to regard physical harm as
more serious than any kind of financial harm, regardless of the amount
of financial loss incurred. For example, we gave scenario 6 (Peter), that
comprised both blackmail involving the payment
of $1 million in cash and
the threat of physical harm to the victim's son, a ranking of six out of
28, whereas focus group
participants ranked it 18th. Their ranking meant
the offence was regarded as less serious than scenario 25 mentioned
above (assault on an elderly patient in a rest home involving some slapping
and punching, but without any significant injury).
While these differences
between the median ranking and our ranking might suggest the weight we
attached to the material
support and amenity interest was too high, we
think our approach to that interest is not significantly at odds with
either the current legislative approach to offences involving property
loss or damage, or current sentencing practice.
None of the glaring
anomalies in current maximum penalties we draw attention to in the next
chapter can be attributed
to our methodology placing insufficient weight
on the material support and amenity interest. After consideration,
therefore,
we did not make any change to our approach in this
respect.
30 Law Commission Study Paper
5.17
5.18
5.19
Secondly, as with physical integrity, participants tended to take into
account not only the dollar value involved in offences
involving property
loss or damage but also the nature of the victim and the extent to which they
could relate to him or her.
They were likely to see a crime against a
corporation or business entity as less serious than a crime against an
individual victim.
For example, they gave scenario 9 (Tevita) a ranking of 21.
This was presumably on the basis that, although it involved an
arson
causing $1.2 million in loss and damage, it involved containers in a
shipping yard. In contrast, we gave it a ranking
of nine because of the dollar
value of the loss and the large number of victims potentially
affected.
They were also likely to see a crime as less serious when
the harm it caused was diffused. For example, we ranked scenario
1 (John),
that involved contamination of food products causing widespread and serious
food poisoning amongst the population
and $300 million in lost exports, at
the top of the scale of seriousness. In contrast, participants ranked it ninth,
at least in
part because the economic harm was less individualised and more
diffused than more moderate harm perpetrated against one individual,
so
they could more easily “gloss over” the aggregate effects.
Actual versus intended consequence
5.20
5.21
5.22
5.23
5.24
Participants took much the same approach to culpability as we did. In
particular, they saw offences committed with intention,
malice and
premeditation as much more serious than those that constitute dangerous or
negligent behaviour with unintended
consequences. In general terms,
therefore, our adjustments to the harm score on account of culpability seemed
to be supported.
However, they viewed much more seriously than we
did conduct where there was an intention to cause more serious harm
than
eventuated. For example, they gave scenario 20 (Roger), which comprised conduct
causing relatively minor injury where
there was an intent to cause
grievous bodily harm, a ranking of 10 by comparison with our ranking of
20.
Similarly, they viewed preparatory conduct and conduct that only
indirectly contributed to the eventual harm as somewhat more serious
than we
did. For example, in scenario 16 (Nikolas) the offender had put together a
highly detailed document explaining how
to make a bomb, which he placed on
the Internet in the knowledge that it would probably be used by a terrorist
group. That
document was subsequently used to make a bomb that killed 120
people. Although the offender had no idea which group might use
the document
and no intent to kill anyone, the focus group participants nevertheless ranked
it 10th, six places above us.
In light of these findings, we reviewed our
scoring for preparatory conduct and conduct indirectly causing harm. While we
did not
change our protocol for scoring risk, we decided that in some
cases we had underestimated the intensity of the risk and
changed the scoring
accordingly.
We should note that, as discussed below at paragraph
6.41, a number of the anomalies we identified in current maximum penalties
appear to derive from the fact they understate the seriousness of the harm the
preparatory conduct would cause if carried through
to fruition. In that
respect, the findings from the focus group discussions show, in the view of
participants, the anomalies are
even greater than we have
suggested.
Maximum Penalties for Criminal Offences 31
CHAPTER 6: Conclusion: anomalies in the maximum penalty
structure
Chapter 6
Conclusion: anomalies in the maximum penalty
structure
6.1
6.2
6.3
6.4
6.5
6.6
6.7
6.8
Following revisions at Step 6, we arrived a final ranking of the offences
in the five main criminal statutes that were the subject
of the review, and the
penalty categories into which they have been placed. This is set out in detail
in Appendix D.
The ranking can be no more than a rough guide to
anomalies in current maximum penalties. There are several reasons for
that.
In the first place, when we were ranking and grouping offences, it
became apparent that our methodology did not work particularly
well in
differentiating between offences at the bottom end of the spectrum of
seriousness or, to put it another way, did not provide
what we intuitively
regarded as correct rankings. That is undoubtedly because the scores on
various interests affected by those
offences were all low, the overall scores
were accordingly also low, and the differences between the scores were
therefore
a poor guide to the relative seriousness of the offences to which they
related. The methodology we employed did serve to show whether
the offences
rightly belonged in the bottom two penalty categories – and, as we
shall see, did point to one or two obvious
anomalies – but was not
sufficiently sensitive to determine into which of those categories the offences
should be placed.
Secondly, our methodology, and in particular the
relative weighting we gave to particular interests, was inevitably somewhat
crude.
It was not precise enough to reflect public views of relative
seriousness at the margins, and may not have made sufficient
adjustment
for the overlapping nature of a number of offences.
Thirdly, our worst
case scenarios, which were generally hypothetical, may not always have captured
the most serious conduct to which
the particular offences are
directed.
It would therefore be premature simply to conclude all of the
offences we have grouped together should have the same maximum penalty
ascribed to them. Much more work is required before firm conclusions can be
drawn about the appropriate placement of offences
within the hierarchy
of seriousness. In particular, it would be desirable to have more detailed
data on: recent sentencing
patterns in relation to each offence; the types
of cases in which the most severe sentence has been imposed, and whether
this equates to, or approaches, the seriousness of the worst case
scenario upon which our penalty categorisation has
been based; and the
extent to which sentences near to the maximum have been
imposed.
Of course, as discussed above at paragraphs
4.48–4.53, current sentencing data would not in itself determine
whether
change is required. Nevertheless, as we have said, at a minimum current
sentencing data may directly demonstrate a potential problem
in two ways. If
sentences close to the maximum are never being imposed for offences that
appear to be amongst the worst
of their kind, or if there is a very
large gap between the most severe sentence recently imposed and the maximum
penalty,
that is a strong indicator judges find the current maximum, in
relativity terms, too high. Conversely, if there is a clustering
of
sentences near to the maximum, that is a strong indicator judges do not
think that the current maximum allows sufficient
room to differentiate
between one offence and another, and therefore find it too low. In either
case, this would point to the
need for reform.
Until this type of
analysis is done, any conclusions drawn from our analysis to date must
necessarily be tentative.
32 Law Commission Study Paper
6.9
6.10
6.11
Nevertheless, at a general level our findings do strongly suggest the
likelihood there are substantial anomalies in current
maximum penalties:
some, relative to others, are too high or too low; like cases are not being
treated alike; and cases differing
significantly in terms of seriousness are
not being sufficiently differentiated. In our view, this demonstrates more work
is needed,
and a wholesale revision of maximum penalties to ensure fairness
in sentencing practice is required.
In addition to this general
conclusion, a number of maximum penalties for specific offences in our list in
Appendix D are so far
out of line with the penalty category in which our
methodology has placed them that, even at this stage, it is safe to conclude
that they need to be changed.
These maximum penalties fall into a number
of discrete categories. We discuss some of them below, but emphasise that
they are
merely illustrative. Many other offences in the list are clearly
out of line with those around them, and some categories (such
as Categories J
and K) have such a wide dispersal of current maximum penalties they clearly
demonstrate the need for a fundamental
overhaul.
MAXIMA THAT ARE OUT OF LINE WITH THOSE FOR OTHER COGNATE
OFFENCES
6.12
6.13
Some offences have maximum penalties so inconsistent with those
attaching to other cognate offences that the rationale for
the maximum is
difficult to comprehend.
First, there are a number of similar and
overlapping offences under the broad umbrella of perverting the course of
justice in
ss 108-117 of the Crimes Act 1961 and s 24 of the Summary Offences
Act 1981. While in most instances the maximum penalties seem
to be aligned
well, there are a couple of glaring exceptions:
• Section 115 comprises the offence of conspiring to prosecute
any person for an alleged offence, knowing the
person to be innocent of
that offence. A person commits the offence if he or she conspires with another
person or persons to
accuse a third person of an offence, with
knowledge that the accusation is false: Conteh v Police.29
If the alleged offence is punishable by imprisonment for three years or
more, the maximum penalty for the s 115 offence is 14 years’
imprisonment;
if it is punishable by imprisonment for less than three years, the maximum
penalty is seven years’ imprisonment.
This is difficult to reconcile
with the maximum penalty of three months’ imprisonment for the offence
of making a false
allegation to the police under s 24 of the Summary
Offences Act, which in the worst class of case involves making a false
complaint of an offence punishable by more than three years in the knowledge
that the alleged offender is innocent. While the
s 115 offence has the added
culpability of a common purpose amongst conspirators, that justifies only a
small increase in the
maximum; it cannot explain a difference between 14
years and three months. Moreover, s 24 would seem to cover all of the conduct
to which the conspiracy under s 115 relates; our approach to conspiracy,
discussed above at paragraph 3.63, would therefore
confine the latter to
situations in which the offence is not completed. Accordingly, the maximum
penalty for the offence under
s 24 ought to be greatly increased (and
relocated), and the maximum penalty for the conspiracy offence should be
greatly reduced.
• The offences of fabricating evidence under s 113 of the
Crimes Act (by any means other than perjury), and
of conspiring to
obstruct, prevent, pervert or defeat the course of justice under s 116, are
closely aligned. In both cases,
they would in the worst class of
case involve the conviction of an innocent person for an offence
punishable by three
years’ imprisonment or more. The only substantive
difference in seriousness between the two is that the latter
requires some small enhancement to recognise the additional culpability
arising from the conspiracy. Currently, both
offences have the same maximum
penalty of seven years. This can be contrasted with the maximum penalty of 14
years’ imprisonment
for the offence of perjury that is committed in
order to procure the conviction of a person for an offence punishable by three
years’ imprisonment or more. While there may be some small additional harm
arising from the fact that the perjured evidence
is given under oath (and
therefore in the worst class of case by way of oral evidence in court), it is
difficult to see why
this justifies a maximum penalty that is double that
available under ss 113 and 116. We suggest
29 Conteh v Police [1956] AC 158 (PC).
Maximum Penalties for Criminal Offences 33
CHAPTER 6: Conclusion: anomalies in the maximum penalty
structure
that there should be little difference between the two. In the light of
our penalty categorisation, we think that, relatively
speaking, the penalty
under s 109(2) is too high, and the penalties under ss 113 and 116 too
low.
6.14
6.15
6.16
6.17
Secondly, the offences of attempted sexual exploitation of a person with
a significant impairment in s 138(2) of the Crimes
Act, and of attempted sexual
connection with a young person under 16 in s 134(2), carry maximum penalties
of 10 years, the same
as that available for the completed offence under s
138(1). Similarly, the offence of attempting to have sexual connection with
a
dependent family member under the age of 18 years under s 131(2) of the Crimes
Act carries a maximum penalty of seven years,
the same as that for the
completed offence under s 131(1). For the reasons outlined above at
paragraph 3.57, we do not think
that these offences should be treated in
accordance with the usual attempt rules. As with attempted sexual violation,
the
maximum penalty should recognise that much of the harm that would be
inflicted by the completed offence will also arise in
the course of an
attempt. Nevertheless, we cannot discern any rationale for setting a maximum
penalty at the same level. Our
scoring placed the completed offence in s 138(1)
in Category G in our ranking; the completed offence in s 134(1) in Category F;
and the completed offence under s 131(2) in Category H. In contrast, the
attempts were placed in Categories J, H and K respectively.
Given the other
offences that appear in each category on the ranking, the maximum penalties
for these attempt offences are, relatively
speaking, currently set too
high.
Thirdly, the offences of intentionally damaging one’s own
property with reckless disregard for the safety of other
property under
ss 267(3) and 269(3) of the Crimes Act are punishable by five
years’ imprisonment and seven years’
imprisonment respectively. Both
of these maximum penalties seem to be substantially too high, since it is not
an offence to damage
one’s own property and the worst class of case
accordingly involves either recklessness without damage to other property
or
the negligent damage of other property. We placed the offences in
categories N and M respectively, alongside offences
that (with the
exception of the Arms Act 1983 offences) largely have maximum penalties
between three years and three
months. More significantly, the only difference
between the two offences is that s 267(3) involves damage by fire, while s
269(3)
involves damage by other means. Given that damage by fire is an
inherently more dangerous activity than damage by other
means, the fact
that s 276(3) has a lower maximum penalty is mystifying; the converse ought
to apply.
Fourthly, the offence under s 242 of the Crimes Act
involves knowingly or recklessly making a false statement (for example,
in
a prospectus) with an intent to deceive or to induce any person to make an
investment. If the deception or inducement causes
loss to another person, that
will amount to the offence of obtaining by deception or causing loss by
deception under s 241,
which would seem to be a more appropriate charge
in such a circumstance. Section 242 should arguably therefore be confined
to cases where the full statement is made but no other person has yet
suffered loss. Yet s 242 carries a maximum penalty of
10 years’
imprisonment, while s 241 carries a maximum penalty of only seven years. Even
if s 242 were appropriate to deal
with cases of actual loss, it is difficult to
see why a deception by means of a false statement is more culpable than a
deception
by other means. If the loss caused by the deception is the same,
then the penalty ought to be the same. The relativities between
s 241 and s
242 do not make sense.
Fifthly, the offence under s 20A of the
Summary Offences Act involves the communication of official information
knowing that
there is no proper authority to do so and that the
communication is likely (among other things) to endanger safety, prejudice
law
enforcement or seriously damage the economy of New Zealand. It is punishable
by a maximum of three months’ imprisonment.
There is a corresponding
offence under s 78A of the Crimes Act that involves the communication of
official information, knowing
that there is no proper authority to do so and
that the communication is likely to prejudice the security or defence of New
Zealand. It is punishable by a maximum of three years’ imprisonment. The
difference between the two offences is that the
former requires a risk to
personal safety, law enforcement or the economy of New Zealand, while the
latter requires a risk
to security and defence. Otherwise the offences are in
essence identical. While an attack on security and defence may be regarded
as a little more serious than an attack on the national economy, it must
be doubted whether this could possibly justify
the
34 Law Commission Study Paper
difference between the two maximum penalties. Relatively speaking, we
think that the former is too low and the latter is too high.
6.18
Finally, the offence of doing an act in a public place that is
likely to cause injury under s 12 of the Summary Offences
Act, and of doing
anything with a thing in a public place that is likely to cause injury under s
13, both carry a maximum penalty
of three months’ imprisonment.
However, the maximum culpability associated with the former offence is
negligence, while
the worst instance of the latter offence comprises
recklessness (ie knowledge of the risk and an unreasonable decision to
take the risk). The substantial difference in culpability ought obviously
to be reflected in a different maximum penalty.
MAXIMA THAT DO NOT APPROPRIATELY REFLECT THE RANGE OF INTERESTS HARMED
OR PUT AT RISK BY THE OFFENCE
6.19
6.20
6.21
6.22
6.23
A number of offences have current maximum penalties that are so
substantially at odds with the maximum penalties provided
for the other
offences with which they have been placed in our ranking that it seems apparent
that they do not properly reflect
the extent to which the interests affected
by them are harmed or put at risk.
First, the offences of driving with
excess breath or blood alcohol, and of driving under the influence of
alcohol or drugs so
as to be incapable of having proper control of the
vehicle, under ss 56 and 58 of the Land Transport Act 1998 respectively,
carry
a maximum penalty of two years’ imprisonment when the offender has two
or more previous convictions for the offence.
In the worst class of case,
the offence will involve a very high level of intoxication, a very high risk to
other motorists
and substantial damage to other property, committed by an
offender with a very long record of similar offending. When the
harms
caused or risked were properly weighed up, their scores under our
methodology placed them in Category J, alongside
other offences with maximum
penalties that are generally substantially higher than two
years.
Secondly, the offence of unauthorised disclosure of official
information under s 20A of the Summary Offences Act carries
a maximum
penalty of three months’ imprisonment. It is committed in
circumstances where the offender not
only knows that he or she does not have
authority to pass on the information but also knows that it is likely to
endanger safety;
prejudice the prevention, investigation, or detection of
offences; prejudice the safe custody of offenders or defendants; or
seriously
damage the national economy. In the worst class of case, it may indirectly
result in serious physical harm to
an individual or widespread and
significant financial loss. Our scoring placed it in Category K alongside
offences that
as a group should, in our view, (and currently generally
do) attract maximum penalties substantially in excess of three
months.
Thirdly, the offence of contaminating food, crops, water or
other products under s 298B of the Crimes Act carries a maximum penalty
of
10 years, the same as that provided for the offence of causing disease or
sickness in animals under s 298A. The former offence
requires that the
offender either intend to harm a person or cause major economic loss or major
damage to the national economy,
or at least be reckless as to one of those
consequences. The latter, in contrast, requires that the offender intends
only to
pose a serious risk to the health or safety of an animal population
that is likely to cause major damage to the national economy,
or at least be
reckless as to that consequence. In the worst class of case, therefore, the
offence under s 298B will not only cause
major economic harm to the community
as a whole but will also pose a significant and widespread risk to public
health and safety.
While the maximum penalty should not be set on the basis that
serious harm to public health actually materialises (since that would
then
comprise the offence of wounding with intent or with reckless disregard under
s 188), it nevertheless needs to take into
account the risk of such harm. The
fact that it has the same maximum penalty as s 298A strongly suggests that it
has not done
so. The combination of both harm to the economy and widespread
risk to public health led to a score under our methodology that
placed this in
the highest category of seriousness.
Fourthly, the offence of dealing in
a Class A drug under s 6(2)(a) of the Misuse of Drugs Act 1975 carries a
maximum penalty of
life imprisonment. We think that the harm to collective
welfare arising from such an offence is at the highest level, and that there
is
also an extremely high risk of serious harm to physical
Maximum Penalties for Criminal Offences 35
CHAPTER 6: Conclusion: anomalies in the maximum penalty
structure
integrity. However, in our view it does not warrant the maximum penalty that
is otherwise reserved only for murder, manslaughter,
treason and piracy
involving murder (and, as we note below in paragraph 6.26, should in any case be
removed from manslaughter as
well). On our methodology, it was placed
alongside offences with current maxima of 14 years’ imprisonment.
6.24
Finally, the offence of sabotage under s 79 of the Crimes Act carries
a maximum penalty of 10 years’ imprisonment.
However, in the worst class
of case the offender will have caused enormous destruction of, or damage to,
property that is necessary
for the safety or health of the public or for the
safety or security of New Zealand, with enormous consequences for the national
interest. In terms of relativity, therefore, it does not make sense that the
maximum penalty for such an offence places it alongside
burglary and
forgery. Our scoring placed it alongside offences with current maxima of 14
years’ imprisonment.
MAXIMA THAT DO NOT REFLECT THE APPROPRIATE BALANCE BETWEEN CONSEQUENCE
AND CULPABILITY
6.25
6.26
6.27
6.28
6.29
A few offences seem to place undue weight upon the serious consequence
arising from the offence, and fail adequately to take into
account the reduced
culpability inherent in the definition of the offence.
Perhaps the
most glaring example is manslaughter, which currently carries a maximum
penalty of life imprisonment. Since the
repeal in 2009 of the partial defence
of provocation under s 169 of the Crimes Act, the offence of manslaughter never
involves
an intent to kill. Given the extended definition of murder in s
167(b)–(d), it also excludes cases where the offender means
to cause
bodily injury, or does any act with an unlawful object that is known to be
likely to cause death and is reckless whether
death ensues or not. Accordingly,
it ought not to carry the same maximum penalty as murder. Our methodology
placed it in Category
C, alongside offences such as attempted murder, aggravated
wounding and wounding with intent to cause grievous bodily harm.
In
contrast, some other offences seem to place too much emphasis upon the
culpability inherent in the offence, and give insufficient
recognition to
the fact that little or no harm actually materialises. An example can
be found in s 131B of the Crimes
Act (meeting a young person under the age
of 16 years following sexual grooming with the intent of committing a
sexual offence),
which carries a maximum penalty of seven years’
imprisonment. The offender does not get to the stage of an attempt, and
the harm
score is derived solely from the risk that he or she presents. The resulting
ranking placed the offence in Category K,
alongside offences that, while varying
widely, are mostly in the three to five year range.
A second example of
this undue emphasis on culpability appears in s 198A of the Crimes Act.
Subsection (1) comprises an offence
of using a firearm against a police officer
or prison officer, acting in the course of his or her duty, knowing that the
person is
a police officer or traffic officer; it carries a maximum penalty of
14 years’ imprisonment. Subsection (2) comprises an
offence of using a
firearm with intent to resist lawful arrest or detention; it carries a
maximum penalty of 10 years’
imprisonment. In both cases, the worst
class of case must assume that no injury, or at least no serious injury,
results,
since that should more appropriately be charged as wounding with
intent to injure or cause grievous bodily harm. The harm
caused by the s
198A offences, while serious, should therefore be based primarily on risk. On
this basis, the maximum penalties
are, relatively speaking, much too high.
We placed them in Category H, alongside offences with current maxima primarily
in
the five to seven year range.
In some instances, the comparative
weight placed on consequence and culpability between one offence and another
is anomalous. For
example, the offence of wounding with intent to injure under
s 188(2) of the Crimes Act carries a maximum penalty of seven years’
imprisonment, while the offence of injuring with intent to cause grievous
bodily harm under s 189(1) carries a maximum
penalty of 10 years’
imprisonment. The reduced culpability inherent in the former offence has
therefore been given greater
weight than the reduced consequence inherent in
the latter offence. In the worst class of case, we think that the marginal
effect
of a reduction in consequence and culpability should be the same. The
difference in maximum penalties between the two offences
therefore does not
seem intuitively right.
36 Law Commission Study Paper
6.30
We note, however, it is often difficult on the evidence to draw a clear
dividing line between "intent to cause grievous bodily
harm" and "intent to
injure". It is for that reason, following judicial feedback, the Law Commission
recommended in Review of Part 8 of the Crimes Act 1961: Crimes Against the
Person,30 the level of intended injury should be treated as a
sentencing factor, rather than as a substantive element of the offences. If
that were done, there would be two offences: wounding (or, as we would prefer to
term it, causing serious injury) with intent to
injure; and injuring with
intent to injure. We support the Law
Commission recommendation.
MAXIMA FOR OFFENCES THAT OVERLAP WITH OTHER OFFENCES
6.31
6.32
6.33
6.34
6.35
A number of offences are framed in such a way that they encompass
conduct captured by other more serious offences. As noted
above at
paragraph 3.32, our approach in these cases has been to exclude conduct
covered by the more serious offence, so
the worst case scenario for the lesser
offence is set at the threshold point at which the lesser offence tips over into
the more
serious offence.
However, it seems likely that many maximum
penalties for these offences have been set at a high enough level to capture
the more
serious conduct, even if it has not been charged as such. In our
view, this is inappropriate. If the prosecution wishes to
allege more serious
conduct, it should charge the offender with that conduct. The offender should
not effectively be tried and
sentenced for conduct covered by a more serious
charge than that alleged against him or her.
Perhaps the most obvious
offence falling into this category is conversion of a vehicle or other
conveyance under s 226 of the
Crimes Act. The offence applies only when
there is no intention to permanently deprive the owner, but instead the
vehicle
or conveyance is taken for a period with an intent to later return
or abandon it. If there is an intention to permanently deprive
the owner, the
offence of theft is available as the appropriate charge. Yet the conversion
offence carries a maximum penalty of
seven years’ imprisonment, the same
as that available for theft. It therefore appears to have been set at a level
enabling
an offender to be punished as if he or she were guilty of theft,
even though the intent to permanently deprive has not been
proved at trial. In
our view, this is inappropriate. If the prosecution wishes to allege an intent
to permanently deprive the
owner of the vehicle, it should lay the charge
that reflects that intent. If not, it should proceed on the basis there was
no
such intent and the offender should be liable to a maximum penalty commensurate
with that. If there is doubt about whether such
an intent can be proved, charges
can be laid in the alternative. There is accordingly no justification for the
seven year maximum
penalty.
There is a similar problem with the offence
of disabling (stupefying or rendering unconscious) any other person in s 197 of
the Crimes
Act, which carries a maximum penalty of five years’
imprisonment. As the Law Commission noted in the report Review of Part 8 of
the Crimes Act 1961: Crimes Against the Person,31 where
stupefying facilitates more serious offending – sexual violation or
wounding or injuring with reckless disregard,
for example – the more
serious offending ought to be charged, with the stupefaction element an
aggravating factor
to be taken into account on sentence. This offence
ought therefore to apply only to cases that do not cause any injury
and fall
short of an attempt to commit some other more serious offence. For that
reason, the Law Commission recommended the
maximum penalty be reduced from
five years’ to two years’ imprisonment. The ranking produced by
our methodology
placed it in Category K, alongside offences with
substantially varying maxima but an average of a little under four
years’
imprisonment.
The offences of bestiality and indecency
with animals in ss 143 and 144 of the Crimes Act, carrying maximum
penalties
of seven years’ imprisonment and three years’
imprisonment respectively, also appear to have been set on
the implicit
basis that they cause harm to animals. But if there is manifest harm, the
appropriate charge is one of the
various offences involving ill treatment
of animals in the Animal Welfare Act 1999. Looked at in this light, the
maximum
penalties for bestiality and indecency
30 Law Commission , above n 25.
31 Law Commission , above n 25.
Maximum Penalties for Criminal Offences 37
CHAPTER 6: Conclusion: anomalies in the maximum penalty
structure
with animals are, relatively speaking, simply too high. By comparison, the
offence of wilful ill-treatment of an animal causing
death, serious injury
or permanent disability under s 28 of that Act carries a maximum penalty
of only five years’
imprisonment, while reckless treatment causing
one of those consequences carries a maximum of three years. Our ranking in
fact
placed bestiality and indecency with animals in the lowest penalty
category.
6.36
Finally, there are also a number of sex offences in the Crimes Act that
appear to have been set so as to capture conduct that
properly falls into
a more serious offence category involving lack of consent. The offences in
s 129A(1) of having sexual
connection with another person, and in s 129A(2)
of doing an indecent act on another person, knowing that the other person
has been induced to consent by threat, carry maximum penalties of 14
years’ imprisonment and five years’ imprisonment
respectively.
These offences do not involve force or threats that are sufficient to
negate consent, since that would
then constitute sexual violation or
indecent assault. Yet they appear to have been set on the basis that they do.
That can
be the only explanation for the fact that the difference in maximum
penalties – 14 years compared with 20 years and five
years compared
with seven years – is not greater than it is. When we approached the
offences in s 129A(1) and (2) on the
basis that consent was not negated, our
methodology placed them in Categories I and L, alongside offences with
current maximum
penalties of five to seven years and two to three years
respectively.
MAXIMA THAT ARE BASED ON SOCIAL CONDITIONS AND MORES OF
ANOTHER ERA
6.37
6.38
The maximum penalties for several offences are arguably based on the
social conditions and mores of another era. While the
offences can still
be justified by the actual or potential harm they pose, their maximum
penalties exaggerate the importance
of the interests being protected in modern
society. In our view, two offences clearly fall into this category:
• The offence of bigamy in s 206 of the Crimes Act normally
carries a maximum penalty of seven years. We ranked
the offence in the second
to lowest penalty category on our methodology, alongside offences in the three
month to two year range.
• If the person with whom the offender went through the form of
marriage, or with whom the offender entered into the civil
union, knew at
the time of the commission of the bigamy that the marriage or civil union
would be void, the maximum penalty
is two years. We ranked the offence
in this case in the lowest penalty category, alongside penalties that are
generally
in the three to six month range (although we doubt that it should
be imprisonable at all).
The maximum penalty of two years’
imprisonment for the offence of concealing the dead body of a child in s
181 of
the Crimes Act, with intent to conceal the fact of its birth, is
arguably also outdated, particularly given that the offence
almost always
involves either significant mental impairment at the time of its commission
or other substantial mitigation.
Our ranking placed it in Category O, the
lowest penalty category.
MAXIMA THAT ARE BASED ON AN INCONSISTENT APPROACH TO
PREPARATORY CONDUCT
6.39
6.40
We have already noted, at paragraphs 3.59–3.60 above, that a number of
attempt and conspiracy offences specifically provided
for ought to be
repealed and dealt with under the generic attempt and conspiracy provisions
contained in ss 310 and 311 of
the Crimes Act. We have also argued, at
paragraph 6.13–6.18 above, some that do need to remain as specific
offences have
maximum penalties that are out of alignment with the harm they
cause or risk. For example, the maximum penalties for attempted
sexual
exploitation of a person with a significant impairment under s 138(2) of
the Crimes Act, and of attempted sexual connection
with a dependent family
member under the age of 18 years under s 131(2) of the Crimes Act, are too
high because they draw no distinction
between the attempt and the completed
offence.
In addition, there are other offences that are
essentially preparatory in nature. As noted above at paragraph 3.69, we
ranked these on the basis of their potential to cause harm rather than their
infliction
38 Law Commission Study Paper
of actual harm, and in doing so, identified a number of glaring
anomalies in the maximum penalties attaching to some of them.
6.41
6.42
6.43
6.44
Some of these appear to place undue emphasis upon the diminution in
culpability arising from the fact the offending conduct is
at an early stage
and give insufficient recognition to the seriousness of the intended conduct
and its consequences. Three offences
fall into this category:
• The offence under s 28 of the Summary Offences Act of being
found in a public place preparing to commit a crime
carries a maximum
penalty of only three months’ imprisonment. Yet the worst class of
case would involve a person,
acting alone, who is planning to commit mass
murder or an offence causing catastrophic economic consequences to the country,
but has not yet reached the stage of an attempt. This offence was scored on
our methodology so as to place it in Category G,
but we placed it in
Category I alongside offences with current maximum penalties of five to
seven years’ imprisonment,
in order to properly distinguish it from s
272 of the Crimes Act and s 55 of the Arms Act (see below).
• The offence under s 272 of the Crimes Act of possessing or making
an explosive device with intent to commit a crime carries
a maximum penalty
of two years’ imprisonment, notwithstanding the fact that in the worst
class of case the person committing
the offence will possess an explosive,
again with the intent of committing mass murder or an offence causing
catastrophic economic
consequences, although not having reached the stage of
an attempt. We placed this offence in Category G, alongside offences that
predominantly have current maximum penalties of seven to 10 years’
imprisonment. We note in passing that this puts it
alongside the almost
identical offence in s 55 of the Arms Act of possessing a firearm or explosive
device with intent to commit
an offence punishable by imprisonment for three
years or more. This offence has a current maximum of five years. The
difference
between the two has no possible justification.
• The offence under s 8 of the Summary Offences Act of
publishing a document explaining the manufacture of
explosives for the
purposes of sale or distribution to the public carries a maximum penalty of
three months’ imprisonment.
Yet again the worst class of case would
appear to involve conduct with significantly more serious potential
consequences
and higher culpability than this maximum penalty suggests.
In the worst class of case, for example, it may involve a detailed
guide on how
to build a suicide bomb or how to remotely detonate a powerful explosive device
in a public place. We again placed
it in Category I, alongside offences with
current maximum penalties of five to seven years’ imprisonment.
In
contrast, the offence under s 264 of the Crimes Act (possessing an instrument
that is capable of being used to forge a document,
without lawful authority or
reasonable excuse and with intent to use it for such a purpose) appears to
place undue weight
upon the intended conduct, without having sufficient
regard to the fact that it will not have reached the stage of an attempt.
It is
punishable by up to 10 years’ imprisonment, the same maximum penalty as
that available for forgery itself. This takes
no account of the fact that, even
in the worst class of case, no forgery will actually have taken place. We
placed the offence
in Category J, alongside offences predominantly carrying a
current maximum of between five and seven years’ imprisonment.
The
same may be said of counterfeiting public seals under s 261 of the
Crimes Act. This offence is currently punishable
by up to 10 years’
imprisonment. It does not in itself cause significant harm; instead, it is
conduct preparatory to the
use of those seals for an unlawful purpose. We
accordingly scored it on a risk basis and placed it together with the s 264
offence.
As with that offence, its current maximum, in relativity terms, is
therefore substantially too high.
The equivalent offences in relation to
documents created for private purposes in ss 262 and 265 of the Crimes Act
have similar
problems. The s 262 offence (counterfeiting corporate seals) is
committed by a person who unlawfully makes or counterfeits any
seal or stamp
used by a company or other corporate body (other than a public body), or
uses any such seal or stamp
knowing it to be counterfeit. It is
punishable by a maximum penalty of five years’ imprisonment. In an age
of electronic
registers and electronically authenticated documents, we are
unsure of the circumstances in which this offence would
Maximum Penalties for Criminal Offences 39
CHAPTER 6: Conclusion: anomalies in the maximum penalty
structure
now be used and think that, if it were committed, the harm caused by it
would be minimal unless it tipped over into a more serious
offence such as
forgery of a document for advantage under s 256(1) or altering a document with
intent to deceive under s 258.
The same may be said of the offence of imitating
customary marks under s 265, also punishable a maximum of five years’
imprisonment.
For this reason, we have placed them in Category M, alongside
offences that (with the exception of the Arms Act offences) largely
have
current maximum penalties between three months and three years.
6.45
6.46
6.47
6.48
Leaving aside whether the maximum penalties are too high or too low, the
relativities between some of these offences are also inexplicable.
For example,
while the maximum penalties for the offences in s 55 of the Arms Act and s 272
of the Crimes Act are five years’
and two years’ imprisonment
respectively, the offences of being armed with a weapon with intent to commit
burglary under
s 232(2) of the Crimes Act, and of possessing an instrument
with intent to use it to commit burglary under s 233, carry maxima
of five
years’ imprisonment and three years’ imprisonment respectively.
Given that, in the worst class of case under
ss 55 and 272 the intended offence
will be murder, it is obvious that the maximum penalties under both ss 232(2)
and 233 should
be substantially lower. They are not.
Finally, we should
draw attention to the offence in s 12AB(2) of the Misuse of Drugs Act of
importing a precursor substance
knowing that it will be used to produce
or manufacture a controlled drug. Essentially this too is preparatory
conduct.
The Law Commission noted in its report Controlling and
Regulating Drugs,32 precursor substances also have
legitimate industrial or medical purposes. Where they are themselves a
psychoactive substance,
they should be classified as a controlled drug and
treated accordingly. Otherwise the maximum penalty attached to offences
relating
to them should be set on the basis that the harm they cause is
indirect and contingent on the use to which they are put. In
order to give
effect to that, the Law Commission recommended that each precursor substance
should be separately scheduled as an
A, B or C precursor, depending upon the
classification of the most harmful drug it is potentially used to produce,
and the
maximum penalty should be set at approximately half the maximum for the
offences relating to the appropriate class of the controlled
drug
itself.
In relation to Class A and Class B precursors, the current
maximum penalty of seven years’ imprisonment for the offence in s
12AB(1)
is more or less consistent with this. Furthermore, our methodology, which used
Class A precursors as the worst class of
case, placed the offence at the bottom
of Category J, alongside offences predominantly in the three to seven year
range.
However, the current maximum penalty is, relatively speaking,
clearly too high for precursors of Class C drugs and does not take
sufficient
account of the fact that it is merely preparatory conduct. We reiterate the
view that, if the statute is to draw a
distinction between Class A, B and C
drugs themselves, it should also draw a distinction between the precursors to
those substances
and set different maximum penalties for offences relating to
each.
MAXIMA ATTACHING TO OFFENCES IN THE ARMS ACT 1983
6.49
6.50
On our methodology, many of the offences in the Arms Act were given a
ranking at odds with the current maximum penalty.
Some have a maximum
penalty that seems to be directed towards much more serious conduct than
that covered by the scope of the
offence as drafted, primarily because they
overlap with a more serious offence. For example, the offence of unlawful
possession
of a pistol or restricted weapon under s 50(1) carries a maximum
penalty of three years’ imprisonment. It is difficult
to understand how
a maximum penalty at that level can be justified, given that there are a
range of other offences covering
unlawful carriage or use. It is also
difficult to reconcile the maximum penalty with that provided for the offence
under s 36
of carrying a pistol or restricted weapon in any place beyond the
curtilage of a dwelling except in accordance with the conditions
of a firearms
licence, which is punishable by only three months’ imprisonment. Given
that the former offence entails only
unlawful possession while the latter
entails unlawful carriage, the difference between the two does not make
sense.
32 Law Commission , above n 26.
40 Law Commission Study Paper
6.51
6.52
6.53
6.54
The maximum penalty of two years’ imprisonment for the offence of
unlawful carriage of an imitation firearm under s 46(1)
is equally anomalous.
If the imitation firearm is used to commit some other offence, it will be an
aggravating feature of that
offence and taken into account in the
sentence imposed. The maximum penalty for this offence should therefore be
based
on a worst class of case that involves unlawful carriage alone.
Since an imitation firearm is capable only of frightening,
the harm inflicted
by the offence is relatively small. We accordingly placed the offence in the
lowest penalty category.
In contrast, other offences have a maximum
penalty much lower than the seriousness of the conduct covered by the
worst class
of case. For example, the offence under s 48 of discharging a
firearm in or near a public place or dwelling house without reasonable
cause, so as to endanger property or to endanger, annoy or frighten any
person, carries a maximum penalty of only three months’
imprisonment.
Yet the very similar offence under s 53(3) of discharging a firearm without
reasonable cause, in a manner likely
to injure or endanger the safety of any
person or with reckless disregard for the safety of others, carries a maximum
penalty
of three years’ imprisonment. In the worst class of case, the only
substantive difference between the two offences is that
the s 48 offence must
occur in or near a public place or dwelling house, while the s 53(3) offence
may occur, for example, on privately
owned farmland. That would suggest that,
if anything, the s 48 offence is the more serious of the two. Given that the
endangerment
to public safety will, in the worst class of case, involve
recklessness (ie knowledge of the risk), a maximum penalty of only three
months’ imprisonment seems, relatively speaking, much too low. We gave
both offences the same harm score and placed them
in Category J, alongside
offences carrying maximum penalties predominantly in the three to seven year
bracket.
These examples demonstrate a more fundamental problem with
the Arms Act: there is no coherent offence structure with systematically
graduated levels of seriousness, but instead overlapping offences with
seemingly arbitrary maximum penalties attaching to them.
This conclusion was
also reached by the Sentencing Establishment Unit within the Law Commission
when it was attempting to draft
sentencing guidelines for offences under the
Arms Act. It found the task extremely difficult simply because the
nature
of the conduct that each offence was directed towards, by comparison
with other offences in the Act and indeed with parallel
offences in the Crimes
Act, was difficult to discern.
We therefore think the anomalies in the
maximum penalties we have identified in the Arms Act cannot be addressed
simply by a
review of penalty levels. A fundamental overhaul of the Arms
Act is long overdue.
CONCLUSION
6.55
6.56
6.57
The particular examples of anomalies in the current maximum penalty
structure we have highlighted in this chapter are merely
an illustration of
what is clearly a more general problem. The way in which maximum penalties
have been developed has resulted
in a large number of manifestly
irrational and unjustified penalties that are, relatively speaking, both
too high and
too low. They provide very poor guidance to the courts as
to the appropriate level of punishment in the worst class of case
and, to
the extent they guide day to day sentencing practice, may well be resulting in
injustice.
However, as we said at the beginning of this chapter, while
we have done enough to enable us to draw the clear conclusion major
reform is
required, we have not done enough work to recommend the appropriate placement
of offences within the hierarchy of seriousness.
Among other things, that
requires much more detailed analysis of recent sentencing patterns than we
have been able to undertake.
In order for appropriate penalty values to be
attached to each penalty category, there is also a need for much wider
public
consultation.
Once that work has been done, there are at least
three options for incorporating proposed maxima into
statute.
Maximum Penalties for Criminal Offences 41
CHAPTER 6: Conclusion: anomalies in the maximum penalty
structure
6.58
6.59
6.60
First, the maximum penalty value for each offence could be placed within
the offence statute and also within a separate penalty
statute.33
This would allow for greater accessibility, since the penalty for
an offence could be ascertained either by referring to the
penalty statute, or
by looking at the relevant clause in the principal statute. The drawback to
this approach is that any future
amendments to the maximum penalty for an
offence will require amendment to two separate statutes.
Secondly, an
alternative approach would be to have penalty values set out solely in a
separate penalty statute. The advantage
of this approach is that
legislative change to maximum penalties would become easier. In addition,
debate would be less
focussed only on the individual offences under
consideration. However, accessibility of the law would be compromised in so
far
as reference to two statutes would be required in order to ascertain the
maximum penalty for an offence.
The third option would be to retain the
status quo, ie to forgo a separate penalty statute and simply list the maximum
penalty alongside
the offence in the principal statute. The pros and cons of
all three approaches would need to be weighed, together with a review
of
relevant overseas
experiences.
33 For something similar, see the Victorian legislation: Crimes Act 1958
(Vic) and Sentencing Act 1991 (Vic).
42 Law Commission Study Paper
Appendix A
Sample offences for determining base values
Physical integrity
Range Section & Act Description Max Worst class of case
Top 172 CA Murder Life Act of terrorism causing multiple deaths, eg placing
a suitcase bomb on board a domestic flight killing 40
crew and
passengers.
Middle 189(2) CA Injuring with intent to injure
5 yrs The offender had been drinking for a sustained period at a bar and
was asked to leave by the duty manager. The offender refused
and had to be
forcibly removed from the premises. The offender then hid outside and waited
for the manager to lock up. The offender
grabbed the victim from behind and
subjected him to a sustained physical attack, inflicting serious injuries to
his right leg.
Victim unable to work for three months.
Low 48 AA Discharging firearm in public place
3 mths The offender was a licensed gun owner who took part in a street protest. The offender took a rifle with him to the protest and kept it inside his jacket. Once the protestors were assembled outside Parliament, and during a particularly noisy point in the protest, he withdrew and discharged his rifle three times into the air. No one was injured as a result of the shots, although the shots did cause panic amongst some protestors.
Violation of a governmental interest
Range Section & Act Description Max Worst class of case
Top 74 CA Treason Life Coup in which the New Zealand government is overthrown through violent means.
Several members of the cabinet, including the Prime Minister, and a number
of government officials detained at gunpoint. Coup causes
civil unrest and
lawlessness. Overseas governments refuse to recognise the new administration.
New Zealand becomes isolated in the
international community.
Middle 109(2) CA Perjury 14 yrs The offender gave evidence at his
brother’s trial on two counts of the rape and murder of
two children. The
offender gave evidence that the accused had spent two days tramping in dense
bush at the time the murders took
place. The evidence was crucial in the
accused’s acquittal. CCTV evidence subsequently revealed that the accused
was guilty,
whereupon the offender was convicted of perjury.
Low 23 SOA Resisting constable acting in duty
3 mths The offender, a newspaper photographer, took photos of a vehicle
accident in which a male celebrity was injured. The offender
was asked to move
from scene by the emergency services. The offender refused and was arrested
by police. He vigorously resisted
the arrest, necessitating the involvement of 3
officers.
Maximum Penalties for Criminal Offences 43
APPENDIX A: Sample offences for determining base values
Privacy and freedom from humiliation or offensive
behaviour
Range Section & Act Description Max Worst class of
case
Top 98 CA Dealing in slaves
14 yrs The offender arranged for the victim to be bought to New Zealand from Thailand to work as a prostitute. For three years the offender used the victim as a physical and sexual slave. She was regularly subject to physical assaults and degrading acts by the offender and a number of his associates. The offender attempted to sell the victim
to an undercover police officer for $35,000, telling the officer that he
would acquire full property rights over the victim.
Middle 216J(1) CA Publishing an intimate visual recording
3 yrs The victim voluntarily engaged in full sexual intercourse with the offender.
Unbeknown to the victim, the offender had set up multiple video cameras in
his bedroom. The offender used footage from the cameras
to put together a two
minute video clip of the intercourse which he then uploaded to several
internet websites. He then made postings
on a variety of websites directing
people to the sites hosting the video footage.
Low 27 SOA Indecent exposure
3 mths Offender was part of a street parade promoting a new strip club and was situated on top of a moving float. She and others on the float were topless, but on several occasions the offender indecently exposed herself. Many in the crowd were school children under 16 years of age.
Material support and amenity
Range Section & Act Description Max Worst class of
case
Top 260 CA False accounting
10 yrs The offender was the Managing Director of an investment company.
Over the course of three years she arranged for the company
to draw down loans
from a United States lender to the value of $6.3M. None of the loans were
included in the annual company accounts.
This allowed the company to show a
healthy annual profit. In fact the company was running at a large loss and
remained solvent
only because of the unaccounted loans. Investors in the
company collectively lost $11M.
Middle 271CA Diversion of water
5 yrs Two neighbouring farmers opposed each other over the construction of a
new milking facility on one of the farmer’s land.
As a result of this
dispute the two farmers took a serious dislike of one another. In retaliation
for a perceived slight, the offender
illegally dammed and then diverted a
stream which passed through both properties. The victim’s farm was wholly
reliant on
the stream for water supply for irrigation and animal water supplies.
Despite continued requests from the victim to release the
water, the offender
refused to do so. As a result the victim’s farm suffered vast crop damage
and caused distress and the
death of large numbers of cattle. The total
financial loss to the victim was $118,000.
Low 11 SOA Wilful damage 3 mths The offender is a member of a religious
affiliation. He and his associate approached a house in
order to interact with
the occupants and provide books advocating their beliefs. At the scene of the
offence, the offender became
involved in a heated discussion with a male
occupant. The discussion soon became a rowdy argument, and culminated with the
offender
kicking the occupant’s door as it was being closed, causing
significant damage. The offender then threw his bag at the
window of the house
causing a crack in the window which had to be replaced. The repair bills for
the damage was
$487.
44 Law Commission Study Paper
Impairment of collective welfare
Range Section & Act Description Max Worst class of case
Top 143 CA Bestiality 7 yrs The offender had sexual intercourse with sheep
and goats over the course of two years. Evidence that
many of the animals were
physically assaulted and were distressed during the intercourse.
Middle 206 CA Bigamy 7 yrs The offender was convicted of five counts of
bigamy. Over four years he married a total of six women.
Only the first
marriage was legally undertaken. The offender believes in a right to practice
polygamy irrespective of the law. All
women married to the offender (excluding
the first) did so knowing that the offender was already married.
Low 123 CA Blasphemous libel
1 yr The offender wrote statements that were highly critical of the
Christian faith. Some of the comments were of a derogatory nature
directed at
core Christian beliefs. The offender distributed flyers upon which he had
written his comments to those assembled
for the funeral of a Catholic Bishop.
The police arrested the offender. In their view, the leaflets were likely to
lead to a breach
of the
peace.
Maximum Penalties for Criminal Offences 45
APPENDIX B: Calculation of harm caused by an offence
Appendix B
Calculation of harm caused by an offence
The following example provides an illustration of the way in which the harm
caused by an offence (step 3) will be calculated based
on the worst class of
case. The formula for the quantitative tool is as follows:
base value x level of injury = harm score
Note that the base values do not yet have a numerical value allocated. These
will be confirmed following external consultation:
Offence: Arson: s 267(1) Crimes Act 1961
Current maximum penalty: 14 years’ imprisonment
Aggravating factors
• High value of property damaged or destroyed
• Offender knew that life would be endangered
• Offence was well planned and organised
• Deliberate intention to destroy rather than mere
recklessness
• Previous convictions for offences involving damage to
property
• Use of explosives or incendiary devices
Worst class of case
The offender was a former employee of a manufacturing business who had been
fired by the owner for theft two weeks earlier. The
offender returned to the
plant at night and deliberately started a fire. The fire destroyed the
plant. Four people inside were
hospitalised for smoke inhalation. One suffered
minor burns.
The fire also spread to a neighbouring rest-home, causing the mass
evacuation of the home’s residents. Three units were
destroyed and all
contents lost. Seven other units suffered damage. Two elderly residents
were fortunate to escape the
fire that engulfed the unit. A total of 30
residents had to be treated for smoke inhalation.
The offender acted out of malice. He was upset at being fired and had told
the owner that he would regret firing him. The offender
planned the fire in
advance, securing accelerants from a number of stores in order to evade
detection. He used a key still in
his possession to enter a shed on the
premises to secure a further accelerant. Being a former employee, the offender
was also
aware that it was likely that several people would be inside the
factory when he started the fire.
The offender has seven convictions, three of which are for offences
involving damage to property. He also has one conviction for
arson, relating
to a fire the offender deliberately set to his neighbour’s woodshed
following a dispute.
The financial cost of the fire was significant. The loss of the factory and business was totalled at $1,600,000. The destruction of the three rest-home units, their contents, and the damage done to the seven other units totalled
$420,000.
46 Law Commission Study Paper
Level of harm
Interests affected
Interest
Value Affected
physical integrity a ✓ material support and amenity b ✓ privacy and freedom from humiliation or offensive behaviour c ✗ governmental interest d ✗
collective welfare
e ✗
Harm scale
Interest Affected Base value Harm factor
(out of 10)
Harm
physical integrity
• serious threat to life
• one victim suffered
burns
• significant number of victims suffered smoke
inhalation
a 7 a(BV)
x 7(HF)
= y
material support
• destruction of plant and stock
• business set back, causing inconvenience, loss of profits, and loss
of wages for employees
• destruction of rest-home units and
contents
• damage to seven other rest-home units
b 10 b(BV)
x 10 (HF)
= z
TOTAL HARM = y +
z
Maximum Penalties for Criminal Offences 47
APPENDIX C: Colmar and Brunton - Maximum Penalties Report
Appendix C Colmar Brunton – Maximum Penalties
Report
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APPENDIX D: Final ranking of offences in penalty categories
Appendix D
Final ranking of offences in penalty
categories
Ctgy Rank Section Act
Offence
Current max
A 1 172 Crimes
Murder
Life A 2 74(1) Crimes
Treason
Life A 3 92(1)(a) Crimes
Piracy (with murder, attempted murder, or endangering life)
Life A 4 94(1)(a)
Crimes
Piratical act (with murder, attempted murder, or endangering life)
Life
B 1 98D Crimes
Trafficking people by means of coercion or deception
20 years
B 2 298B Crimes
Contaminating food, crops, water
10 years
14 years
B 4 98 Crimes
Dealing in slaves
14 years B 5 128B Crimes
Sexual violation
20 years B 6 235 Crimes
Aggravated robbery
14 years
C 1 98C Crimes
Smuggling migrants
20 years
C 2 177 Crimes
Manslaughter
Life
C 3 180(1) Crimes Homicide as part of suicide pact Life
C 4 173 Crimes
Attempted murder
14 years C 5 182 Crimes
Killing unborn child
14 years C 6 79 Crimes
Sabotage
10 years C 7 191(1)
Crimes
Aggravated wounding
14 years C
8 188(1) Crimes
Wounding with intent to cause grievous bodily harm
14 years C 9 200(1) Crimes
Poisoning with intent to cause
grievous bodily harm
14 years C 10 201 Crimes
Infecting with disease
14 years C 11 208
Crimes
Abducting for purposes of marriage or sexual connection
14 years C
12 209 Crimes
Kidnapping
14 years C 13 92(1)(b) Crimes
Piracy (without murder, attempted
murder, or endangering life)
14 years
118 Law Commission Study Paper
C 14 94(1)(b) Crimes Piratical act (without murder, attempted murder, or
endangering life) 14 years
D 1 232(1) Crimes Aggravated burglary 14 years
D 2 6(2)(a) Misuse of Drugs Import, export, manufacture, supply etc of
Class A drug Life
D 3 132(1) Crimes Sexual connection with child under 12 14
years
Crimes Sexual connection with child under 12
outside New Zealand 14 years
D 5 129(1) Crimes Attempted sexual violation 10 years D 6 129(2) Crimes Assault with intent to commit sexual violation 10 years D 7 234 Crimes Robbery 10 years D 8 236(1) Crimes Causing gbh with intent to rob 14 years D 9 238 Crimes Blackmail 14 years D 10 142A Crimes Compelling indecent act with animal 14 years D 11 109(2) Crimes Perjury for offence three years 14 years
D 12 183 Crimes
Procuring abortion by any means
14 years
14 years
E 2 269(1) Crimes Destroying property knowing danger to life 10 years E 3 250(1) Crimes Destruction or interfering with computer system resulting in danger to life 10 years E 4 116 Crimes Conspiring to defeat justice 7 years
E 5 100(1) Crimes
Judicial corruption in judicial capacity
14 years
E 6 113 Crimes
Fabricating evidence
7 years
E 7 239(1) Crimes Using force or threats to execute documents 14 years E 8 298A Crimes Causing disease or sickness in animals 10 years E 9 188(2) Crimes Wounding with intent to injure, or with reckless disregard 7 years
E 10 199 Crimes Acid throwing with intent to injure 14 years E 11 189(1) Crimes Injuring with intent to cause grievous bodily harm 10 years E 12 6(2)(b) Misuse of Drugs Import, export, manufacture, supply etc of Class B drug 14 years
E 13 132(3) Crimes
Indecent act on child under 12
10 years
Crimes Indecent act on child under 12 outside
New Zealand 10 years
E 15 179 Crimes Aiding and abetting suicide 14 years
E 16 78 Crimes Espionage 14 years
E 17 77 Crimes Inciting mutiny 10 years
Maximum Penalties for Criminal Offences 119
APPENDIX D: Final ranking of offences in penalty categories
E 18 76 Crimes
Party to treason
7 years
F 1 256(1) Crimes
Forgery of document for advantage
10 years
F 2 267(2) Crimes
Arson (property other than s267(1))
7 years
F 3 191(2) Crimes Aggravated injury 7 years
F 4 130 Crimes
Incest
10 years F 5 10(2)(a) Misuse of Drugs
Aiding offence against
corresponding law in another country (section 6)
14 years F 6 132(2) Crimes
Attempt to have sexual connection with child under 12
10 years
Crimes Attempted sexual connection with child
under 12 outside New Zealand 10 years
F 8 134(1) Crimes Sexual connection with young person under 16 10
years
Crimes Sexual connection with young person under
16 outside New Zealand 10 years
F 10 144C Crimes
Organising or promoting child sex tours
7 years
F 11 204A Crimes
Female genital mutilation
7 years
F 12 231 Crimes
Burglary
10 years
F 13 195A Crimes
Failure to protect child or vulnerable adult
10 years
G 1 95 Crimes
Attempted Piracy
14 years
G 2 307A Crimes
Threats of widespread harm to people or property
7 years
G 3 117 Crimes
Corrupting juries and witnesses
7 years
G 4 98A Crimes Participation in organised criminal group 10 years G 5 102(1) Crimes Corruption by Minister 14 years G 6 104(1) Crimes Corruption by law enforcement officer 7 years
G 7 119 Crimes
Prison break
7 years
G 8 195 Crimes
Ill treatment/neglect of child or vulnerable adult
10 years
G 9 236(2) Crimes
Assault with intent to rob
7 years
G 10 257 Crimes Knowingly using a forged document 10 years G 11 258 Crimes Altering documents with intent to deceive 10 years G 12 100(2) Crimes Judicial corruption in official capacity 7 years
G 13 101(1) Crimes
Bribery of judicial official in judicial capacity
7 years
G 14 134(3) Crimes
Indecent act on young person under 16
7 years
Crimes Indecent act on young person under 16
outside New Zealand 7 years
G 16 272 Crimes Possessing or making an explosive to commit crime 2
years
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G 17 55 Arms Carrying of firearm etc with criminal intent 5 years G 18 109(1) Crimes Perjury 7 years G 19 11 Mse Drugs Stealing/receiving controlled drugs 7 years
G 20 223(a) Crimes Theft by person in special relationship 7 years
(s223(a)) G 21 229 Crimes Criminal breach of trust 7 years
G 22 260 Crimes False accounting 10 years G 23 266(3) Crimes Making counterfeit coins 10 years G 24 138(1) Crimes Sexual exploitation of a person with significant impairment 10 years G 25 198B Crimes Commission of crime with possession of firearm showing prima facie intent 10 years G 26 186 Crimes Supplying means of procuring abortion 7 years
G 27 189(2) Crimes
Injuring with intent to injure, or with reckless disregard
5 years G 28 204B(1) Crimes
Sending child overseas for
genital mutilation
7 years G 29 204B(2) Crimes
Aiding overseas act of genital mutilation
7 years G 30 204B(3)
Crimes
Inducing person to submit to genital mutilation outside New Zealand
7 years
H 1 105(1) Crimes
Corruption by official
7 years
7 years
H 3 198A(1) Crimes Use of firearm against law enforcement officer 14
years
H 4 134(2) Crimes Attempt to have sexual connection with young
person under 16 10 years
Crimes Attempted sexual connection with young person under 16 outside New
Zealand
10 years
H 6 131(1) Crimes Sexual connection with dependent family member under 18
years 7 years
H 7 6(2)(c) Misuse of Drugs Import, export, manufacture, supply etc of
other controlled drug 8 years
10 years
H 9 36A(3) Land Transport Unauthorised street or drag racing causing
death 10 years
5 years
H 11 178(1) Crimes
Infanticide
3 years
H 12 259 Crimes Using altered document to deceive 10 years
H 13 90 Crimes
Riotous damage
7 years H 14 78A Crimes
Wrongful communication,
retention, or copying of official information
3 years H 15 118 Crimes
Assisting escape of POWs or Internees
7 years
Maximum Penalties for Criminal Offences 121
APPENDIX D: Final ranking of offences in penalty categories
H 16 198A(2) Crimes Use of firearm to evade lawful arrest 10
years
5 years
H 18 263 Crimes Possessing forged bank notes 7 years
7 years
H 20 102(2) Crimes
Bribery of Minister
7 years
I 1 8 Summary Publishing document or thing explaining manufacture of explosives 3 months
I 2 101(2) Crimes
Bribery of judicial official in official capacity
7 years I 3 103(1) Crimes
Corruption by Member
of Parliament
7 years I 4 105A Crimes
Corrupt use of official information by an official
7 years I 5
223(b) Crimes
Theft exceeding $1,000
7 years
I 6 228 Crimes
Dishonestly taking or using document
7 years I 7 230 Crimes
Taking, obtaining, or
copying trade secrets
5 years I 8 239(2) Crimes
Use of menace or threats to steal property
7 years I 9
241(a) Crimes
Obtaining by deception exceeding $1,000
7 years
I 10 247(a) Crimes
Receiving more than $1,000
7 years
7 years
I 12 250(2) Crimes Damaging a computer system 7 years
I 13 269(2) Crimes Destroying property 7 years
I 14 232(2) Crimes Armed with weapon with intent to commit burglary
5 years
3 months
I 16 129A(1) Crimes
Sexual connection induced by threat
14 years
I 17 135 Crimes
Indecent assault
7 years I 18 121(2) Crimes
Law enforcement officer
permitting escape
7 years I 19 122 Crimes
Assisting escape of mentally impaired person detained for offence
5 years
J 1 154 Crimes Abandoning child under 6 7 years J 2 192(1) Crimes Aggravated assault 3 years J 3 192(2) Crimes Assault obstructing discharge of duty 3 years J 4 16 Arms Import firearms without permit 1 year
J 5 138(2) Crimes
Attempted sexual exploitation of a person with significant
impairment
10 years
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J 6 138(4) Crimes Indecent assault on of a person with significant impairment 5 years J 7 105(2) Crimes Bribery of official 7 years J 8 105C(2) Crimes Bribery of foreign public official 7 years
J 10 120 Crimes
Escaping from lawful custody
5 years
7 years
J 12 12A(3)(b) Misuse of Drugs Possession of equipment or material for
offence against s 6(1)(b) or s 9 5 years
3 years
J 14 48 Arms
Discharging firearm in or near a public place or dwelling
3 months
J 15 115(a) Crimes
Conspiracy to false accusation for offence three years
14 years
J 16 24 Summary
False allegation or report to police
3 months
J 17 264 Crimes Possession of instruments for forgery 10 years J 18 261 Crimes Counterfeiting public seals 10 years J 19 176 Crimes Accessory after the fact to murder 7 years
J 20 97 Crimes
Accessory after the fact to piracy
7 years
J 21 256(2) Crimes
Forgery of document to be acted upon
3 years
J 22 110 Crimes
False oaths
5 years
7 years
K 1 308 Crimes Damage with intent to intimidate or annoy 3 years
2003
K 3 131B Crimes Meeting young person under 16 following sexual
grooming 7 years
K 4 131(2) Crimes Attempt to have sexual connection with dependent family member under
18 years
7 years
K 5 131(3) Crimes Indecent act on a dependent family member under 18 years 3 years K 6 193 Crimes Assault with intent to injure 3 years K 7 202C Crimes Assault with a weapon 5 years K 8 210 Crimes Abduction of young person under 16 7 years
K 9 197 Crimes
Stupefying
5 years
Maximum Penalties for Criminal Offences 123
APPENDIX D: Final ranking of offences in penalty categories
K 10 216J Crimes Exporting, importing, selling intimate visual recording 3 years K 11 216F Crimes Unlawful disclosure 2 years K 12 87 Crimes Riot 2 years
K 13 9(2) Misuse of Drugs
Cultivation of prohibited plants
7 years
K 14 12(2)(a) Misuse of Drugs Use of premises or vehicle for the commission of any offence involving
Class A drug
10 years
K 15 105B Crimes Use or disclosure of personal information disclosed
under s 105A 7 years
3 months
K 17 52(1) Arms Presenting a firearm at another person 3
months
7 years
K 19 266(5) Crimes Using or attempting to use counterfeit coins 3
years
K 20 43(1) Arms Sells a firearm (of limited capacity) to an unlicensed
person 3 months
K 21 190 Crimes Injuring by unlawful act 3 years
K 22 202(1) Crimes Setting trap with intent to injure 5 years
K 23 204 Crimes Impeding rescue 10 years
K 24 306 Crimes Threatening to kill or cause grievous bodily harm 7
years
3 months
K 26 309 Crimes Conspiracy to prevent collection of rates or tax by force or intimidation 2 years K 27 51(1) Arms Unlawful possession in public place of pistol, firearm, explosive etc 3 years K 28 202A(4) Crimes Possession of offensive weapon or disabling substances 3 years
K 29 103(2) Crimes
Bribery of Member of Parliament
7 years
L 1 7(2)(b)
part two
Misuse of Drugs Supply of Class C drug 3 months
L 2 39(1) Land Transport Aggravated careless use of vehicle causing
injury or death 3 years
L 3 62 Land Transport Causing injury or death in situation where s61 does
not apply. 3 years
L 4 129A(2) Crimes Indecent act induced by threat 5
years
3 months
L 6 15 Misuse of Drugs Making false statement in furtherance of licence 1
year
L 7 21 Summary Intimidation 3 months
L 8 145 Crimes Criminal nuisance 1 year
L 9 216I(1) Crimes Possessing an intimate visual recording to publish,
export, or sell 3 years
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L 10 56(4) Land Transport Driving with excess breath or blood
alcohol (third or subsequent) 2 years
2 years
L 12 60(3) Land Transport Failure etc (third or subsequent offence) L 13 57A(3) Land Transport Driving etc (third or subseqent offence)
L 14 45(1) Arms Unlawfully carry firearm or explosive 4 years
L 15 242 Crimes False statement by promoter 10 years
L 16 233 Crimes Possession of burglary instrument or disguised with
intent to commit crime 3 years
L 17 401 Crimes Contempt of Court 3 months
L 18 32(4) Land Transport Driving while disqualified (third or
subsequent) 2 years
L 19 150 Crimes Misconduct in respect of human remains 2
years
L 20 12(2)(b) Misuse of Drugs Use of premises or vehicle for the commission of any offence involving
Class B drug
7 years
L 21 194(a) Crimes Assault on a child under 14 2 years L 22 12B(3) Misuse of Drugs Being in possession of property that is the proceeds of drug offences 5 years L 23 180(2) Crimes Party to a death from a suicide pact 5 years L 24 216C Crimes Disclosure of private communication intercepted with device 2 years L 25 243(3) Crimes Possession of property for money laundering or proceeds of crime 5 years L 26 251(1) Crimes Sale of software for improperly accessing computer system 2 years
L 27 251(2) Crimes
Possession of software for improperly accessing computer
system
2 years
3 months
M 2 36A(4) Land Transport Unauthorised street or drag racing - no injury or death caused 3 months M 3 57(3) Land Transport Person younger than 20 driving with excess breath or blood alcohol 3 months M 4 86 Crimes Unlawful assembly 1 year
M 5 38(2) Land Transport Careless driving causing injury/death 3
months
M 6 53(1) Arms Causing bodily injury or death through careless use of a firearm 3 years M 7 12AC(5) Misuse of Drugs Importing or exporting precursor substance without reasonable excuse 1 year M 8 202(2) Crimes Allowing dangerous trap to remain in place 3 years M 9 226(1) Crimes Conversion of vehicle or other conveyance 7 years M 10 271 Crimes Waste or diversion of electricity, gas, or water 5 years M 11 267(3) Crimes Arson causing damage with disregard for safety of other property 5 years
M 12 15 Arms Licenced gun dealer continuing business after revocation
of licence 3 months
Maximum Penalties for Criminal Offences 125
APPENDIX D: Final ranking of offences in penalty categories
3 months
M 14 114 Crimes Signing/Use of purported affidavit or declaration 3 years M 15 216H Crimes Making intimate visual recording 3 years M 16 200(2) Crimes Poisoning with intent to cause annoyance 3 years
M 17 36 Arms
Carrying pistol or weapon without authority
3 months
M 18 262 Crimes
Counterfeiting corporate seals
5 years
M 19 265 Crimes
Dishonestly imitating authorised or customary mark
5 years
M 20 42(1) Arms Offences in respect of licences 3 months
M 21 49A Arms Unlawful possession of firearm or airgun when licence has
been revoked 1 year M 22 111 Crimes False statements
or declaration 3 years
M 23 143 Crimes Bestiality 7 years
3 months
M 25 5A Summary Disorderly assembly 3 months
3
months
M 27 307 Crimes Threatening to destroy property or injure animal 3
years
M 28 50(1) Arms Unlawful possession of pistol or restricted weapon 3
years
M 29 13A Summary Possession of knives 3 months
3 years
M 31 20 Arms Possession of firearm without licence 3 months M 32 10 Summary Assault on police, prison, or traffic officer 6 months M 33 194(b) Crimes Assault of female by male 2 years
M 34 196 Crimes
Common assault
1
year
126 Law Commission Study Paper
N 1 22(2) Misuse of Drugs Failure to comply with ministerial notice regarding controlled drug 3 months
(s27)
N 2 23(6)(a) Misuse of Drugs Prescribing Class A or B drug in breach of ministerial notice 6 months
(not s27)
N 3 23(7) Misuse of Drugs Midwife prescribing pethidine in breach of ministerial notice 6 months
(not s27)
3 months
(s27)
N 5 24(1) Misuse of Drugs Medical Practicitioner prescribing
controlled drugs to dependent person 3 months
3 months
N 7 22(4) Misuse of Drugs Failure to comply with ministerial notice regarding utensil or pipe 3 months
(not s27)
N 8 22(5) Misuse of Drugs Failure to comply with ministerial notice regarding controlled drug
(Managing director of body corporate) (not s 27)
3 months
N 9 23(6)(b) Misuse of Drugs Prescribing controlled drug in breach of ministerial notice 3 months
(not s27) N 10 33(2) Land Transport Applying for or obtaining a drivers license while disqualified 3 months N 11 91 Crimes Forcible entry and detainer 1 year
N 12 126 Crimes Indecent act with intent to insult or offend 2 years N 13 269(3) Crimes Destroying property with disregard for other property 7 years N 14 53(2) Arms Leaving loaded firearm in circumstances so as to endanger life 3 years
N 15 13 Summary
Things endangering safety
3 months
N 16 21 Arms
Illegal possession of airgun
3 months
N 17 56(3) Land Transport
Driving with excess breath or blood alcohol (first or second
offence)
3 months
3 months
N 19 14 Summary Possession of burglary tools 3 months
N 22 206
Part 1
Crimes Bigamy 7 years
N 23 207 Crimes Feigned marriage or civil union 7 years N 24 223(c) Crimes Theft exceeding $500 but less than $1,000 1 year N 25 241(b) Crimes Obtaining by deception exceeding $500 but less than $1,000 1 year
N 26 247(b) Crimes Receiving exceeding $500 but less than $1,000 1
year
Maximum Penalties for Criminal Offences 127
APPENDIX D: Final ranking of offences in penalty categories
N 27 216D Crimes Prohibition on dealing in interception devices 2 years
N 28 58 Arms
Failing to report bodily injuries or death by person
responsible for shooting
3 months N 29 56 Arms
Obstruction of police
officer exercising duties in Act
3 months N 30 16 Misuse of Drugs
Obstruction of officers
3 months N 31 23
Summary
Resisting police, prison, or traffic officer
3 months
N 32 32(3) Land Transport
Driving while disqualified (first or second offence)
3 months
3 months
(s27)
N 34 124 Crimes Distribution or exhibition of indecent matter 2 years N 35 125 Crimes Indecent act in a public place 2 years N 36 216B Crimes Using interception device to intercept private communication 2 years N 37 216I(2) Crimes Possessing an intimate visual recording 1 year N 38 252 Crimes Accessing computer system without authorisation 2 years N 39 13(1)(b) Misuse of Drugs Possession of unauthorised seed or fruit 1 years N 40 227 Crimes Being in possession of an instrument for conversion 1 year
N 41 52(2) Arms Presenting anything that causes a person to believe that it is a firearm etc 3 months N 42 12 Summary Acts endangering safety 3 months N 43 46(1) Arms Unlawfully in possession of imitation firearm 2 years
N 44 223(d) Crimes
Theft not exceeding $500
3 months N 45 241(c) Crimes
Obtaining by deception
not exceeding $500
3 months N 46 247(c) Crimes
Receiving not exceeding $500
3 months
O 1 3 Summary Disorderly behaviour 3 months
O 2 121(3) Crimes Failure to perform legal duty resulting in escape 1
year O 3 181 Crimes Concealing dead body of a child
2 years O 4 144 Crimes
Indecency with animal 3 years
O 5 206
Part 2
Crimes Bigamy (person knew marriage/civil union would be void) 2
years
2 years
O 7 27 Summary Indecent exposure 3 months
O 8 40 Arms Person in possession of firearm etc fails to provide
details to police 3 months
O 9 7(2)(a)
part one
Misuse of Drugs Possession or use of Class A drug 6 months
O 10 6A Summary Associating with violent offenders 3
months
128 Law Commission Study Paper
O 11 6B Summary Associating with serious drug offenders 3 months
O 12 29 Summary Being found on property, etc, without reasonable
excuse 3 months
O 13 7(2)(b)
part one
Misuse of Drugs Possession or use of controlled drug (other than Class A) 3
months
O 14 13(1)(a) Misuse of Drugs Possession of utensil 1 year
O 15 13(1)(aa) Misuse of Drugs Possession of needle or syringe 1
year
O 16 6 Summary Associating with convicted thieves 3
months
Maximum Penalties for Criminal Offences 129
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