Speaking about cultural background at sentencing. Section 16 of the Criminal Justice Act 1985. Alison Chetwin; Tony Waldegrave; Kiri Simonsen [2000] NZPenalPP 1 (1 November 2000)

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Executive Summary.................................................................................................6

Bibliography............................................................................................................138

reparation, 1989 to 1998 41
Table 3: Court-imposed fines and reparation imposed,

1989 to 1998 ($ millions) 43
Table 4: The number of cases resulting in monetary penalties and

imposed, by offence type, 1998 44
Table 5: The total number of cases resulting in a fine, 1989

reparation in 1998, by type of offence 46
Table 7: Percentage of convicted property charges resulting in a

1989 to 1998 46
Table 8: Most serious sentence imposed in conjunction with

reparation for property offences, 1995 to 1998 47
Table 9: Number of previous convicted cases for offenders

sentenced to a fine as the primary sentence in 1995 50
Table 10: Most recent previous sentence for offenders sentenced
to a fine as the primary sentence in 1995 51
Table 11: Most serious sentence imposed in conjunction with a

monetary penalty in 1998 51
Table 12: The percentage of cases resulting in a fine as the

gender of offender, 1998 52
Table 13: The percentage of cases resulting in a fine as the

offender, 1998 53
Table 14: Number and percentage of fines where there was an

compensation according to offence type, 1989 to 1998 54
Table 16: Number of fines where there was an order of

1992/93 to 1998/99 56
Table 18: One year and two year reconviction rates for people

sentenced in 1995 57
Table 19: Number of infringements lodged with the courts,

1992/93 to 1998/99 ($ millions) 59
Table 21: Amounts of monetary penalties imposed/lodged and

($ millions) 60
Table 22: Amounts of lodged infringements and amounts collected

and unpaid during year, 1995/96 to 1998/99 ($ millions) 61
Table 23: Amounts of court-imposed fines imposed and collected

and amounts unpaid, 1995/96 to 1998/99 ($ millions) 61
Table 24: Amounts of reparation imposed and collected and

The infringement notice system provides for punishment without formal prosecution. Instead of a sentence being imposed by a judge, a notice or ticket (sometimes described as an instant fine) is issued on the spot or through the post by the prosecuting authority (informant). Most people who come in contact with this system are those receiving tickets for motor vehicle offences.

The state or local government benefits from the infringement system by being able to enforce routine minor offences which are usually correctly detected by way of a less complex, protracted, and expensive process than having the matter determined by the courts. The citizen forgoes a court hearing (unless they elect to take the matter to court) for a swift disposal of the case, no court costs, no inconvenience or public embarrassment involved in a court appearance, a fixed penalty (irrespective of wealth and previous offending), and, most importantly, no criminal record.

There is no discretion for the enforcement authority to vary the fee according to degrees of offence seriousness or according to the financial circumstances of the offender.

The penalty of a fine is the most commonly imposed sanction in the courts. The advantages of fines include their flexibility, as the amount can be adjusted within the maximum to fit the gravity of the offence and the means of the offender. Unlike imprisonment and community-based sentences, fines produce revenue for the state that exceeds their administrative costs.

They are a humane penalty and do not involve the same degree of disruption in the lives of offenders or the same potentially harmful consequences as imprisonment or even a community-based sentence.

Fines are criticised for the inequitable way that they can operate between offenders of the same culpability. More affluent offenders will always find it easier to pay fines than poorer offenders. It will sometimes be virtually impossible to fine an indigent offender and so an alternative penalty will have to be imposed.

The penalty of reparation in the Criminal Justice Act 1985 was introduced following a recommendation by the 1981 Penal Policy Review Committee to bring together the various reparative and compensatory orders into one provision that would situate reparation in a more central place within the sentencing process and increase its use.

The 1985 provisions limited reparation to loss of or damage to property. In 1987 the legislation was amended to provide also for reparation to be imposed to compensate victims of offences for emotional harm suffered through or by means of the offence.

There are a number of Acts which provide for the issue of infringement notices. Infringement notices generally specify the amount of the fee, details of the alleged offence, that the fee is payable within 28 days from service of the notice, and procedures for payment. A summary of rights is attached.

Where the fee is not paid within 28 days, and no hearing has been requested by the defendant, a reminder notice is served (unless a time to pay arrangement has been made). The defendant then has a further 28 days in which to pay or request a hearing. If at the end of those 28 days no action has been taken by the defendant, a copy of the reminder notice may be filed in court. At that stage a court order is deemed to have been made for payment of a fine equal to the amount of the infringement fee, together with prescribed costs.

If the defendant files a notice requesting a hearing it is over to the informant to choose whether or not to commence court proceedings in respect of the offence. If the informant does, then the copy of the notice served on the defendant operates like a summons. Where the defendant is found or pleads guilty to the offence, the court will order the defendant to pay costs in addition to the fine.

The general principles governing the imposition of fines by sentencing judges are contained in the Criminal Justice Act 1985. The court has a general discretion to impose a fine up to the maximum amount prescribed in legislation. In the case of an imprisonable offence for which no fine is prescribed, the court may impose a fine of any amount in addition to or instead of imprisonment, except where this is expressly disallowed.

In fixing the amount of a fine the court is required to take into account the means and responsibilities of the offender so far as it is aware of them and any amount payable under a sentence of reparation. In practice this involves the court treating the ability to pay as if it were a mitigating factor, reducing the amount of a fine that might otherwise be imposed on the basis of the gravity of the offence. It has not been viewed as appropriate to increase a fine on account of the offender’s wealth beyond the level normally associated with the seriousness of the offence.

Where an offence has resulted in bodily injury or emotional harm to any other person which was unprovoked, the court may order that part or all of the fine imposed be paid to the victim by way of compensation for the harm.

A fine can be imposed in combination with a disqualification from driving, with any one kind of community-based sentence, a combined sentence of periodic detention and supervision, or a full or suspended custodial sentence.

The use of fines following conviction under the Misuse of Drugs Act 1975 is subject to a number of special rules.

Fines are payable within 28 days of imposition unless an order is made for:

Sections 11 and 22(1) of the Criminal Justice Act 1985 create a statutory presumption in favour of reparation in all cases where the court is satisfied, irrespective of the type of offence, that any other person has suffered any emotional harm or loss of or damage to property through or by means of the offence.

This presumption can be rebutted where the liability of the offender or the amount that should be paid cannot be resolved or where the offender does not have a reasonable prospect of being able to make payment of reparation in the foreseeable future in any of the ways prescribed.

The court may call for a reparation report unless the amount to be paid for property loss or damage is less than $500. Where the court is already satisfied of the value of any loss of or damage to property, then no report is required.

Section 22(6) provides that where the offender has insufficient means to pay the full amount of reparation initially assessed by the court as appropriate, the court may order partial reparation. Section 22(7) makes it clear that if reparation and a fine are both being considered as sentences and the offender has insufficient means to pay both, then reparation is to be given priority. Similarly, section 22(8) states that when an offender has been sentenced to both a fine and reparation then payments made shall be applied first towards the due amount of reparation.

As with a fine, reparation can be combined with any one kind of community-based sentence, a combined sentence of periodic detention and supervision, or a full or suspended custodial sentence.

The enforcement of fines and reparation is set out in Part III of the Summary Proceedings Act 1957. Enforcement actions include:

Where these enforcement actions have been tried and the fine remains unpaid, the court has a number of options including waiving all or part of the fine, or substituting a sentence of corrective training, community service, or periodic detention, or a term of imprisonment (section 88). An offender will be discharged from any of the alternative sentences upon payment of the fine in full (section 91). There is a right of appeal in respect of the substituted sentences and of any period of imprisonment imposed for non-payment of a fine (section 89).

The Summary Proceedings Amendment Act (No 3) came into force on 1 November 1998. It increased the powers of the court to collect overdue fines and reparation. The new measures included powers to make attachment orders on benefits and other sources of income additional to those previously covered by the Summary Proceedings Act (principally salaries and wages), powers to make deductions from bank accounts, empowering court bailiffs to execute warrants to bring defaulters before the court (warrants to arrest), and information matching programmes between the Department for Courts and the Department of Work and Income, and with the Inland Revenue Department, to assist in locating defaulters.

Related developments include a number of new initiatives by the Department for Courts Collections Business Unit. These include the use of wheel clamps as an enforcement tool, use of private debt collection agencies to assist in the collection of unpaid monetary penalties, the publication of the names of defaulters in local newspapers, redesigned in-court processes such as payment areas for monetary penalties, an expert means assessment system, improved follow-up procedures, a centralised call centre, and promotion and publicity campaigns.

The offence types most likely to result in fines are traffic offences, offences against good order, and drug offences. In 1998 63% of all cases in which a fine was the primary sentence involved traffic offences. For many of the minor traffic offences that result in conviction, the maximum penalty that can be imposed is a fine (i.e. they cannot result in a community-based sentence or imprisonment).

Property offences accounted for 85% of the reparation sentences imposed in 1998 and 78% of the total amount of reparation imposed ($9.7 million out of a total of $12.4 million). There were small increases in the use of reparation for property offences following the changes to the Criminal Justice Act in late 1993, but in 1996 it dropped back to the 1993 level.

Fines are more often imposed as the primary sentence on offenders with fewer than 6 previous convictions and over a third of fines that are the primary sentence are imposed on offenders with no previous convictions.

Most court-imposed monetary penalties are combined with other sentences or court orders (as well as court costs). In 1998, 33% were in combination with a driving disqualification, and 8% with a community-based sentence. In 3% of cases resulting in a monetary penalty both reparation and a fine were imposed.

In 1998, 41% of cases involving New Zealand European offenders resulted in a fine as the primary sentence. This compares to 25% of cases involving Mäori offenders where the fine was the principal sentence. This pattern was repeated for all types of offences. For offences involving Pacific peoples the proportion given a monetary penalty was higher than for Mäori offenders but not as high as for New Zealand European offenders. Offenders who were aged 40 years or more were more likely to receive a monetary penalty than offenders of other ages.

In the last 10 years 1% of fines or fewer also involved an order of compensation from all or part of the fine to a victim who suffered physical or emotional harm.

There has been a decline over the last 7 years in the number of fine defaulters re-sentenced to imprisonment or to community service but an increase in those re-sentenced to periodic detention.

Offenders who receive a fine are less likely to be reconvicted than offenders who receive other sentences. This is predictable on the basis of the characteristics of offenders receiving fines (i.e. characteristics, such as having fewer previous convictions, that are associated with a lower risk of re-offending).

The number of unpaid infringement notice fees lodged with the courts has tripled since 1992/93. The increase has been partly due to the large increase in traffic infringement notices issued (particularly since the introduction of speed cameras). Collection rates for unpaid infringements and reparation have been consistently below those for court-imposed fines.

There is likely to be a rise in volumes of monetary penalties impositions during the next five years driven by:

The use of reparation is unlikely to change significantly in the short term if the nature of the sentence remains the same.

England and Wales have summary offences punishable by levels of fines (1 to 5) which relate to prescribed maxima. These maximum amounts can be adjusted by the Home Secretary in order to retain their real value. The Magistrates’ Association has produced sentencing guides for fines according to types of cases when the offence is of average seriousness. The Criminal Justice Act 1991 specifically provides for fines to be both increased and reduced according to the financial circumstances of the offender. There are a range of enforcement options with imprisonment as a last resort. The period of imprisonment relates to the amount of the fine in accordance with a schedule, as does the number of hours of community service if that becomes the penalty for fine default. There is legal provision for an offender to be ordered to pay compensation to a victim who has suffered personal injury, or property loss or damage as a result of the offence. There is also a Criminal Injuries Compensation Board which considers claims for compensation for bodily injury resulting from a violent crime, whether or not an offender is prosecuted. There is a fixed penalty notice scheme like New Zealand’s infringement notice procedure.

Scotland also has a standard scale of fines relating to levels of offending. There is a relatively high use of imprisonment for fine defaulters. For outstanding fine amounts of less than £500 the sole penalty is a supervised attendance order. The courts can order compensation as a sanction, although it is infrequently used for offences of violence. A further sanction is the caution in which the offender pays the court a sum of money as security for good behaviour. There exists a fixed penalty procedure administered by the police and traffic wardens for minor vehicle offences and fiscal fines which can be offered by the procurator fiscal (independent prosecutor) as an alternative to prosecution in the case of any offence which can be tried by the district court, except those covered by the fixed penalty scheme.

In Australia the courts of some states have the discretion not to record a conviction when fining an offender. In Victoria, Queensland, and at federal level monetary penalties are stated as so many penalty units which are then multiplied by the current per unit value. Imprisonment is becoming the sentence of last resort for fine default. All the states provide for compensation orders. Some have maximum levels of compensation; Victoria requires the victim to apply; and in Tasmania the court must order compensation when the offence is burglary, stealing or “unlawfully injuring property” and may order it in other cases. Victoria also has a state fund for compensating three categories of victims of acts of violence. Fixed infringement penalties are now available for a wide range of minor summary offences.

In the United States there is an emphasis on consistency of sentencing. Fine amounts are generally low and therefore only considered appropriate for less serious offences. All jurisdictions must examine the offender’s ability to pay before punishing him or her for non-payment. The United States Supreme Court ruled in 1983 that to revoke automatically a defaulter’s probation and imprison him due to his or her inability to pay a fine or restitution was unconstitutional. This does not include situations in which a defaulter is wilfully making no efforts to pay. Most state laws limit restitution to “specific”, “actual”, “liquidated”, or “easily ascertainable” losses. Several states limit restitution to property damage, some add medical costs, but most simply refer to “economic” loss. Pain and suffering and punitive damages recoverable in civil actions are generally not compensated. There are various methods used by the courts to determine the amount of restitution including reliance on plea agreements or pre-sentence reports, or the victim’s insurance claim or bills, or the use of victim/offender meetings to work out an agreed amount which is then ratified by the judge. There are many variations in current US law in respect of parking and moving vehicle offences. Some jurisdictions still regard all traffic offences as crimes to be prosecuted before a criminal court. Some have made them civil matters and some have removed them entirely from the courts to an administrative agency such as the New York Department of Transportation’s Parking Violations Bureau.

In Canada when a fine is ordered the judge also sets a term of imprisonment that the offender could serve if the fine is not paid. A number of provinces have made it an option to discharge the fine by undertaking community work. The Canadian Criminal Code provides for a surcharge of up to 15% on any fine, or a sum up to $1,000 in the case of other penalties, which must be imposed in all cases unless the offender can show that undue hardship would result. The money goes into a provincial fund to pay for victim services. The courts may order restitution in cases involving stolen or damaged property or bodily harm. There are also criminal injuries compensation boards that make payments to victims who suffer personal injury as a result of a violent offence. There is a Contraventions Act 1992 which provides for a ticketing system for minor regulatory offences with payment of the amount on the ticket not resulting in a criminal record.

Germany operates a day fine system and the Criminal Code requires that day fines have priority over terms of imprisonment of less than 6 months. For misdemeanours (which include traffic offences, petty property offences, some white collar crime, assaults, fraud, extortion, and environmental offences) the public prosecutor can give the suspect the option of making a payment to either the state, the victim, or a charitable organisation in exchange for a dismissal. For the more serious charges in this range the prosecutor must obtain approval from the court for these dismissals. Payments by the offender can also be imposed as part of a suspended custodial sentence.

• an extension of the infringement system to include some minor offences currently involving a formal prosecution and a criminal record

The development of the infringement notice system which avoids formal prosecutions in the courts has proved an expedient and cost-effective way of dealing with less serious offending. In New Zealand, as is the case overseas, the issuing of infringement notices (tickets) for minor offences continues to increase, particularly with the growth of motor vehicle ownership, increased road traffic regulations, and improvements in technology which enable more automatic detection of offending and the rapid processing of notices. The use of such notices has also been spreading beyond motoring and parking offences into quite different areas of the law.

The reclassification of a greater range of summary offences as infringement offences has proceeded on an ad hoc basis and this is likely to be a continuing trend. The question arises whether it is fair and appropriate to have flat-rate penalties (irrespective of prior records) for more and more offences, particularly in the cases of first offenders who can receive no concession and those who continue to re-offend and incur no additional penalty. The example of first offenders is an argument for not setting the levels of infringement fees for individuals at too high a level. Greater use of warnings or diversion, if necessary on a formal basis with procedural protections, could address some concerns about prosecuting authorities being heavy-handed in their use of infringement notices in a manner that seems more related to raising revenue than encouraging people to obey the law.

In New Zealand the fine is still the dominant sentence of the courts, although there has been a drastic decline in the use of the fine in the last 10 years (the number has dropped by more than half). Factors contributing to this trend have been the conversion of offences into infringements (which result in another type of monetary penalty) and the use of the police adult diversion scheme. However, another reason has been the availability of a wide range of community-based penalties as alternatives to imprisonment, and an increasing use of them by the courts, which has included greater use of them where previously a monetary penalty would have been imposed. The result is that punishment has been pushed up the scale — away from the fine and into other sentences and imprisonment. Some of this change in sentencing practice may have been due to changes in the financial circumstances of offenders coming before the courts.

There are probably two essential pre-conditions for the fine to continue to be the core sanction. There must be principled means for adjusting the amount of a fine to take account of both the offender’s culpability and his or her resources and there must be efficient and reliable systems of collection and enforcement to ensure that most fines that are imposed will be paid in full and on time.

There are arguments for imposing fines in a larger number of cases and increasing the monetary amounts of fines. The fine could become the presumed/preferred punishment for all but a few offenders and other punishments could be alternatives to fines. This would mean that only to a limited extent, at the high end of severity of crime, would the fine be an insufficient and inappropriate sentence. The fine (provided it could be properly sized and effectively enforced) could well be the principal sentence of choice for a wide range of moderately serious offences, including a lot of street crime. This is subject to the proviso that the offender does not represent a continuing danger to the physical safety of any members of the public, or is not in need of control or treatment to lessen the likelihood of re-offending.

There is a perception that fines cannot be applied to impecunious offenders because either they have such limited ability to meet additional financial obligations that little or nothing will be paid or they will commit more crime to obtain illicit income to pay the fine. The alternative view is that a punitive fine imposing significant financial hardship or inconvenience on the offender (so that re-mortgaging or selling assets results) is still preferable to the oppressive nature of imprisonment.

The other perceived limitation of the fine in respect of offenders’ means, representing the obverse of the above, is that the level of the fines that are normally awarded can seem derisory when applied to the, admittedly small, number of well-off offenders who receive sentences of a fine.

Fining systems (called “day fines” or “unit fines”) in Germany, Sweden, Finland, Denmark, France, Portugal, and Greece (and at various times in Austria, Hungary, and England) separate the sentencing decision into two distinct steps. First, the judge makes an independent assessment of the gravity of the offence (translating it into unit terms) and secondly he or she considers the means of the offender to determine the monetary value of each unit (generally some portion of an offender’s income is the basis of the valuation). When these two separate decisions are brought together, the judge can sentence offenders convicted of the same offence to an equal economic burden even if they have very different financial resources. When this process is applied, fines become more widely used as a stand-alone sanction across a broad array of offences of varying levels of severity.

Another approach to encouraging greater use of fines is to have sentencing guidance that creates a presumption in favour of fines for a wide range of offences and specifies that the offender’s financial circumstances should be taken into account when setting the amount of a fine (after determining the level of fine that represents the seriousness of the offence). It would be made clear that an adjustment should take place whether it has the effect of increasing or reducing the amount of the fine. This is the approach of the UK Criminal Justice Act 1991 as amended in 1993.

Reparation has been given a central place in New Zealand’s sentencing options, which is not consistently the case in overseas jurisdictions. There have been criticisms that the greater emphasis on reparation in our legislation has not gone far enough. It is, however, difficult to see how reparation could be given more prominence as a sentencing option bearing in mind that it is unlikely to be seen as sufficient punishment on its own in many cases (as it only involves the offender returning the benefits of the crime) and that there are limitations relating to offenders’ financial situations that make it unrealistic to impose reparation in all cases involving financial loss to victims.

If there is to be an emphasis on guaranteeing compensation for victims it is probable that the state will have to assist though advance payments of reparation to victims, or through the establishment of a state-funded compensation scheme for victims of crime, and for offenders to pay back the state all or part of the sums involved. This is the route some overseas jurisdictions have gone down. Such changes have significant cost and administrative implications.

This review follows reports covering the use of imprisonment in New Zealand and the use of community-based sentences that were produced by the Ministry of Justice in 1998 and 1999.^[1] This study (along with the annual reports of conviction and sentencing of offenders^[2] and research into the effects of various statistical factors on sentencing practice^[3]) therefore completes a comprehensive review of the principal sentences in the criminal justice system during the 1990s.

This report covers infringement fees, fines, and reparation. It does not consider the imposition of court costs on a convicted offender. Nor are the confiscation of assets or the seizure of the proceeds of crime viewed as monetary penalties. All three types of monetary penalty are enforced under the Summary Proceedings Act 1957.

Infringement fees developed out of the fines system. As the volume of offences resulting in fines increased (particularly for road traffic offences) there was a need for a streamlined procedure for imposing fines, and the new fixed penalty system using infringement notices was developed. As noted by one commentator, the emergence of the infringement notice system was a response to the incapacity of the ordinary apparatus of prosecution and hearing to handle the myriad of minor offences that arise from the regulation of modern society. Of all these varied offences, those relating to the use of the motor vehicle place most pressure on the legal system.^[4]

The infringement notice system provides for punishment without formal prosecution. Instead of a sentence being imposed by a judge, a notice or ticket (sometimes described as an instant fine) is issued on the spot or through the post by the prosecuting authority (informant). Most people who come in contact with this system are those receiving tickets for parking or speeding offences or other road safety offences such as breach of licensing and registration requirements. Citizens have been successfully encouraged to accept this regime as a matter of expediency that benefits them as much as the state. The state or local government benefits by being able to enforce routine minor offences, which are usually correctly detected, by way of a less complex, protracted, and expensive process than having the matter dealt with by the courts (which would find it difficult to deal with the volume of such cases).^[5] The citizen forgoes the right to a court hearing (unless they elect to take the matter to court) for a swift disposal of the case, no court costs, no inconvenience or public embarrassment involved in a court appearance, a fixed penalty (irrespective of wealth and previous offending), and no criminal record.

In New Zealand the infringement notice system was introduced in the Transport Amendment Act 1968 (amending the Transport Act 1962) for parking offences (parking in breach of local authority by-laws) and overloading offences (by heavy motor vehicles). This followed a similar development in the United Kingdom (introduced in 1960). Local authorities fixed the parking infringement fees specified in the notices within maxima prescribed by the Minister of Transport (issued in the Gazette). Overloading infringement fees were set by the Minister of Transport. Parking-infringement and overloading-infringements notices were to be served by traffic officers either personally or by registered letter. A parking or overloading infringement was not a criminal offence but it was an offence to fail, without reasonable cause, to pay the infringement fee. Parking infringement fees were payable to the local authority. Overloading infringement fees were payable to the Ministry of Transport or local authority, depending on the employment of the traffic officer who detected the offence. In 1971 speeding infringements and fees came into force.

The system has since been extended into areas other than those involving traffic offences, such as littering, the registration of dogs, pollution and noise control, and underage drinking.

The overall advantages of the infringement notice system are:

Even since the introduction and extension of infringement offences the penalty of a fine is still the most commonly imposed sanction in the courts. A major reason is that there are a sizeable number of offences where the maximum penalty that can be imposed is a fine (that is they cannot result in a custodial or community-based sentence). Fines have a number of advantages and disadvantages, some of which, for obvious reasons, are similar to those that apply to infringement fees. The advantages include:

In an effort to address the issue of fines involving unequal financial hardship for persons with different financial circumstances a number of European countries have a unit or day fines system. These systems involve placing a unit value on the gravity of the offence which is then multiplied by some proportion of the offender’s income. England and Wales had a short-lived experience with the system in 1992/93 (which is discussed in chapter 5).

The Criminal Justice Act 1985 significantly altered the law dealing with monetary compensation, with the introduction of the new penalty of reparation. This was aimed at ensuring that victims of property offences could be adequately compensated for loss of or damage to that property. Prior to this the main provisions through which a victim could get compensation were section 403 of the Crimes Act 1961 (which stated that the court could order the offender to pay such sum as it thought fit by way of compensation to the victim for any loss of or damage to property suffered through or by means of the offence), and section 45A of the Criminal Justice Act 1954 (which enabled the court to award up to half of the amount of a fine to a victim if he or she had suffered bodily injury and the offence was unprovoked). The new penalty followed the recommendation by the 1981 Penal Policy Review Committee to bring together the various reparative and compensatory orders into one provision that would situate reparation in a more central place within the sentencing process and increase its use.^[10]

The 1985 provisions limited reparation to loss of or damage to property. In 1987 the legislation was amended to provide also for reparation to be imposed to compensate victims of offences for emotional harm suffered through or by means of the offence.

The sentence of reparation is based on the assumption that a crime is not only a wrong against society but may also be a wrong against a specific victim. Hence provision is made for compensation to identifiable victims to be imposed on an offender — as well as, or instead of, traditional punishments.

When introducing the Criminal Justice Bill in Parliament in December 1983, the Minister of Justice, the Hon J K McLay, stressed that reparation had a number of salient features, which were that it:

individualises criminal justice from the point of view of both victim and offender, and gives the former a realistic and enforceable right to compensation from the offender. It is widely accepted by the community. It is expected to be more cost-efficient than alternative community-based sanctions. The rationale behind the sentence, if there is a need to add to its primary purpose, is consistent with both the reformative and deterrent theories of the purpose of punishment.^[11]

It has been argued that while reparation could be said to be consistent with the traditional aims of sentencing and can also take into account some of the interests of victims of crime, reparation is not of itself an aim of sentencing and reparation orders should be merely ancillary to the sentencing process.^[12] This argument is that reparation is really the equivalent of civil damages rather than a punishment in the strict sense of the word.^[13] There is also sometimes a practical conflict between reparation and deterrence or retribution, particularly when the latter considerations require a custodial sentence. The Department of Justice 1992 report, Sentencing to Reparation, noted that there was considerable uncertainty among judges and probation officers as to whether the reparation sentence was primarily an offender penalty, a victim service, or whether it could reasonably accomplish aims in both areas.^[14]

The following chapters will detail the legislative provisions relating to infringement fees, fines, and reparation; examine the application of these penalties during the last decade; discuss monetary penalties in other jurisdictions; and summarise some of the issues and possible options for reform in the area of monetary penalties.

An infringement offence is defined in section 2 of the Summary Proceedings Act 1957 as:

Any offence under any Act in respect of which a person may be issued with an infringement notice.

There are a number of Acts which provide for the issue of infringement notices. These include the:

Infringement fees payable in respect of infringement offences are fixed penalties either stated by the Act or by regulations issued under the Act. At present infringement fees range up to $2,000 for individuals under the Land Transport Act 1998 (and up to $10,000 for bodies corporate).

The traffic offences that are designated as infringement offences in the Land Transport Act 1998 include speeding (where the penalties go up to $630), parking offences (up to $60), driving without a current licence ($400), failing to produce a licence ($55), using an unlicensed vehicle ($200), not obeying traffic signals, overloading of heavy vehicles, and certain other driving and equipment offences. Some of the offences and fees are set out in Schedule 4 of the Act. Others are included in regulations.

Most recently there have been infringement offences established under the Sale of Liquor Amendment Act 1999 and the Resource Management Act 1991.

With the passing of the Sale of Liquor Amendment Act 1999, the offences in the Sale of Liquor Act 1989 of purchasing liquor on or from licensed premises by those under the minimum drinking age (section 162) and being on licensed premises under age (section 163) became infringement offences. With these two offences the infringement fee is set by regulation but cannot exceed $500. The offence of under-aged drinking in a public place in the Summary Offences Act 1981 (section 38(3)) also became an infringement offence with an infringement fee of $200. As with other infringement offences the amending legislation allows the police to proceed by way of prosecution or by issuing an infringement notice for all of these offences.

Regulations made under the Resource Management Act 1991 also created a number of infringement offences that can be either prosecuted or dealt with by an infringement notice (Resource Management (Infringement Offences) Regulations 1999 which came into force on 1 February 2000). The infringement fees range from $300 to $1,000.

Proceedings for an infringement offence under any of the above Acts may be commenced in two ways:

(a) with the leave of a District Court judge or registrar, by the laying of an information or the filing of a notice under section 20A (minor offence procedure), or

(b) in any case, by the issue of an infringement notice in respect of the offence (section 21(1) Summary Proceedings Act 1957).

The leave of the court to proceed by the first way is required in respect of infringement offences because the presumption is that if the infringement notice procedure is available it should be used wherever possible.

If the infringement notice procedure is used by the prosecuting authority they must follow the provisions of section 21 of the Summary Proceedings Act 1957.

Infringement notices vary in their form according to the statute under which they are issued. They generally specify the amount of the fee, details of the alleged offence, that the fee is payable within 28 days from service of the notice, and procedures for payment. A summary of rights is attached which includes defences available to the defendant in respect of the alleged offence. The defendant may either:

Since 1 November 1998 there has been provision for defendants to enter into arrangements to pay by instalments (to be completed within 12 months of the date of the offence) provided the informant has instituted the necessary management and accounting systems to allow this to happen (Summary Proceedings Amendment Act (No 3) 1998).

Where an infringement notice is issued and after 28 days from service of the notice the infringement fee is not paid, no arrangements to pay have been made, and no hearing in respect of the offence has been requested by the defendant, a reminder notice is served. The defendant then has a further 28 days in which to pay or request a hearing. If at the end of 28 days from the date of service of the reminder notice no action has been taken by the defendant, a copy of the reminder notice may be filed in court. Once the reminder notice has been filed in court within six months of the offence, an order is deemed to have been made by the court for payment of a fine equal to the amount of the infringement fee, together with prescribed costs (currently $30). The court will then issue a notice of fine.

If the defendant files a notice requesting a hearing to defend the charges, that notice may, amongst other things, admit liability and make submissions only as to the level of the penalty. Once a notice requesting a hearing has been filed by the defendant it is over to the informant to choose whether or not to commence court proceedings in respect of the offence. If they do then they must file in court a notice of hearing in the prescribed form. From that point on, the hearing proceeds as if an information has been laid under the Summary Proceedings Act, and the copy of the notice served on the defendant operates like a summons. Where the defendant is found or pleads guilty to the offence, the court shall order the defendant to pay costs of the prescribed amount in addition to the fine and any other costs ordered to be paid by the court (section 21(9)).

Section 78A stipulates that no conviction is to be recorded for an infringement offence, even if the offender is convicted in court (and whether or not an infringement notice was issued).

In general, discrepancies can arise between the relevant infringement fee for a particular infringement offence and the amount of a judge-imposed fine for that offence if it is brought before the court under section 21 of the Summary Proceedings Act 1957. The reason for this is that the judge can have regard to the individual circumstances of an offender, including his or her financial means, and any other mitigating circumstances such as the offender’s lack of criminal history. However, there are some limits on judicial discretion in imposing fines less than the infringement fee for certain infringement offences if the matter comes before the court (e.g. in respect of overloading offences under the Land Transport Act 1998).

Some infringement offences (e.g. speeding offences) under the transport legislation involve the user of the vehicle automatically receiving demerit points which are indicated on the infringement notice and which are recorded against the person upon payment of the infringement fee. The accumulation of a 100 or more demerit points in any 2 year period results in suspension of the person’s driving licence or disqualification from holding or obtaining a driver’s licence.

The fine is the most common sanction in legislation available to the courts. For many minor offences, and in particular traffic offences, it is often the only available sanction. For the majority of offences a maximum amount that may be imposed as a fine is prescribed in legislation.

The general principles governing the imposition of fines by sentencing judges are contained in sections 26 to 28 of the Criminal Justice Act 1985. The court has a general discretion to impose a fine up to the maximum amount prescribed in legislation for the particular offence. In the case of an imprisonable offence for which no fine is prescribed, the court may impose a fine of any amount in addition to or instead of imprisonment, except where this is expressly disallowed (e.g. the mandatory sentence of life imprisonment for murder in section 172 of the Crimes Act 1961). Where no maximum fine is prescribed the fine imposed should not exceed $4,000 if imposed by a District Court judge, and $400 if imposed by a justice of the peace or a community magistrate.^[15] There is no limit in the High Court.

In fixing the amount of a fine the court is required to take into account the means and responsibilities of the offender, so far as it is aware of them, and any amount payable under a sentence of reparation (section 27). The courts have interpreted this to mean that the fine must be within the limits of an offender’s ability to pay. This principle has been repeatedly stated in a significant body of case law.^[16] In practice this involves the court treating the ability to pay as if it were a mitigating factor, reducing the amount of a fine that might otherwise be imposed on the basis of the gravity of the offence. It has not been considered appropriate to increase a fine on account of the offender’s means beyond the level normally associated with the seriousness of the offence.^[17]

The need for the fine to be within the limits of the capacity of the offender to pay is reinforced by Part III of the Summary Proceedings Act 1957 which enables remission of a fine which an offender is unable to pay (section 88). A probable reason behind this is that otherwise the fine may encourage further offending in an endeavour to obtain the means to pay.^[18]

Tied in closely with the sentencing requirement under section 27 to take the offender’s means into account when imposing a fine is section 82 of the Summary Proceedings Act which provides that the sentencing court is obliged to obtain a statement of the offender’s means before imposing a fine, unless it is satisfied on the basis of information before it that the offender has sufficient means to pay a fine and that the information is accurate. Such a statement may be oral or in writing.^[19] The offender can be detained in the custody of the court for up to 2 hours to complete a statement of means (section 82(3)).

Where an offence has resulted in bodily injury or emotional harm to any other person which was unprovoked, the court may order that part or all of the fine imposed be paid to the victim by way of compensation for the harm (section 28). In Heenan v Ministry of Transport [1989] NZHC 920; (1989) 5 CRNZ 229 it was noted that the provision was designed for victims of assault and deliberate acts causing physical harm, and reservations were expressed about whether it should be extended to victims of negligent acts such as careless driving.^[20]

A fine can be imposed in combination with a disqualification from driving, with any one kind of community-based sentence, a combined sentence of periodic detention and supervision, or a full or suspended custodial sentence.

The use of fines following conviction under the Misuse of Drugs Act 1975 is subject to a number of special rules. Under section 6(4A) of the 1975 Act, where any person is convicted of certain offences relating to the importation, export, manufacture, supply, or possession for supply of Class A or Class B controlled drugs, the court, if it decides to impose a full-time custodial sentence, must consider whether to also impose a fine. Under section 38 of the Misuse of Drugs Amendment Act 1978, where a person is convicted of dealing in Class A or Class B drugs, the court can impose a greater fine than it would otherwise have imposed (within the prescribed maximum) if it is satisfied on the balance of probabilities that money or assets owned by the offender were derived from the offending.

A common way of imposing a fine is through the minor offence procedure which can be used for any summary offence that does not attract a sentence of imprisonment or a fine of more than $500 (section 20A Summary Proceedings Act 1957). A notice, rather than a summons to appear in court, is issued to the defendant detailing the offence with which he or she is charged and of his or her rights. A defendant is not required to appear in court unless he or she wishes to do so, either to deny the charge or for some other reason such as to apply for a discharge without conviction. If the defendant denies the charge a summons is issued and the summons procedure is then followed. If the defendant elects to plead guilty he or she may make a written submission on an appropriate penalty. This procedure has similarities with the infringement procedure with the principal differences being the court’s discretion to determine the actual sentence within the maximum limits and the conviction (with record) that can result.

Fines are payable within 28 days of imposition unless an order is made for:

A defendant may apply for an extension of time to pay any fine not subject to an order for immediate payment. Extension of time to pay or payment by instalment may only be considered if application is made within 28 days after the fine is imposed. The extended time must not exceed 18 months from the granting of the extension (sections 86, 86A). If the fine has not been dealt with by the due date (and the defendant will also have been sent a final notice prior to the expiry of the 28 days) then enforcement action can be taken and an enforcement fee of $100 is added to the fine.

Reparation was introduced in the Criminal Justice Act 1985. Prior to this Act there were a number of discrete provisions in four different statutes allowing the court to order compensation or restitution. These were the Criminal Justice Act 1954, Crimes Act 1961, Police Offences Act 1927, and the Children and Young Persons Act 1974.

It was a recommendation of the 1981 Penal Policy Review Committee that existing legislation be consolidated and amended to provide for a general power to order reparation in respect of property loss, covering all direct or indirect loss or damage suffered by the victim of the offence, and that reparation should have priority over fines, costs, and expenses ordered against the offender.^[21]

Section 11 originally required the courts to impose reparation in every case where it could be imposed unless they were satisfied that it would be inappropriate to do so. Section 22 established in what circumstances it could be imposed (where “any act or omission that constituted the offence caused any loss of or damage to any property”).^[22]

There were some early difficulties with interpretation of the reparation provisions and a lower use of the sentence than anticipated. In 1986 section 22 was revised so that reparation could be a sentence where there was loss of or damage to property suffered “through or by means of the offence” and in 1987 the scope of reparation was extended so that it could also be applied to offences where the victim suffered emotional harm.

In general section 11 makes reparation a sentence of first resort in all appropriate cases. Section 22(1) sets out when the court may sentence an offender to make reparation (where any other person has suffered any emotional harm or any loss of or damage to property through or by means of the offence). When read together, sections 11 and 22(1) create a statutory presumption in favour of reparation in all cases where the court is satisfied, irrespective of the type of offence, that any other person has suffered any emotional harm or loss of or damage to property through or by means of the offence.

The effect of section 22(3) and section 23 is that this presumption can be rebutted where the liability of the offender or the quantum of the amount that should be paid cannot be resolved or where the offender does not have a reasonable prospect of being able to make payment of reparation in the foreseeable future in any of the ways prescribed in sections 24 and 25 (in a lump sum or instalments, forthwith or at some specified future date).^[23]

Section 22(3) provides that the court may call for a reparation report, but in respect of reparation for loss of or damage to property it is not a pre-condition (subsection 2). No report is to be obtained where the amount to be paid for property loss or damage is less than $500 (section 22(4)). In the absence of a report the court is not expressly required to take the offender’s means and responsibilities into account. However, section 22(6) implies that the offender’s means are to be taken into account when the court is determining the amount of reparation and whether or not the offender is to make periodic payments. Where a court is contemplating reparation with respect to emotional harm, obtaining a reparation report is indirectly envisaged, although not expressly required, by the legislation, since offences involving emotional harm, irrespective of the amount involved, are not excluded in section 22(2) or section 22(4) from the requirement of a report.

The Criminal Justice Amendment Act 1993 contained a number of provisions (in addition to the revision to section 11) to encourage the use and collection of reparation. As a result section 22(6) provides that where the offender has insufficient means to pay the full amount of reparation initially assessed by the court as appropriate, the court may order partial reparation. Section 22(7) makes it clear that if reparation and a fine are both being considered as sentences and the offender has insufficient means to pay both, then reparation is to be given priority. Similarly, section 22(8) states that when an offender has been sentenced to both a fine and reparation then payments made shall be applied first towards the due amount of reparation.

As mentioned above, section 28 provides that the court may award the victim of an offence, by way of compensation, the whole or part of a fine imposed on the offender if the offence caused physical or emotional harm to the victim and was unprovoked. This is one way for a judge to award the equivalent of reparation for emotional harm without seeking a reparation report.

In 1987 the Criminal Justice Act was amended to provide that reparation may also be imposed where the court is satisfied that any other person suffered emotional harm through or by means of the offence. If a reparation report is requested, a probation officer is, as with cases where there is property loss or damage, to seek agreement between the victim and the offender regarding the amount of reparation to be made for emotional harm. If agreement is not reached the probation officer is not empowered to determine the value of the emotional harm (in contrast to being able to determine the value of loss of or damage to property) and must report back to the court that the matter is unresolved.

As with a fine, reparation can be combined with any one kind of community-based sentence, a combined sentence of periodic detention and supervision, or a full or suspended custodial sentence (section 13)^[24].

It is clear that the existence of reparation as a sentence in the Criminal Justice Act rather than as an order implies that Parliament intended that it could serve as a punishment in its own right. Thus reparation can be viewed as similar to a fine, with the difference being that the money is paid to the victim rather than the state (and a fine is mainly punitive in nature, not compensatory). The imposition of reparation is likely to be perceived by offenders as a form of punishment, especially where the sum involved is large.

The fact that reparation can be combined with other sentences implies that Parliament considered that reparation on its own might not always be sufficient punishment. In 1989 the majority of judges tended to view reparation primarily as a service to victims.^[25] This meant that it tended to be used as an adjunct to other sentences rather than as the sole sentence. Generally, reparation was perceived as an appropriate sole sentence for an offender with a relatively short or no prior criminal history who had committed a property or dishonesty offence.^[26] This appears to be still the case. In 1998 reparation was imposed as the sole sentence in only 21% of property cases where reparation was imposed. Fifty-nine per cent of property offences resulting in a reparation sentence also had a community-based sentence imposed, with 35% imposed in conjunction with periodic detention.^[27]

The reason for this is still likely to be that some judges consider that if reparation is used widely as a sentence on its own it will soon become obvious to dishonest property offenders that there are no great risks in offending. The only risk would be that if they are unfortunate enough to be apprehended the courts will merely order them to pay the money back or make good the damage, and then probably at a rate spread over a substantial period of time. There must therefore, in the vast majority of cases, be a penalty in addition to reparation as some sanction or discouragement for the defendant.^[28]

Part III of the Summary Proceedings Act sets out the principles governing the enforcement of court-imposed fines. This part of the Act also applies in respect of the enforcement of reparation, and fines imposed by way of the infringement notice procedure.

The courts have available numerous enforcement measures where a fine is not paid. Under sections 86 and 87 the options for the court registrar include:

The registrar can take this action without the offender appearing in court. Where these enforcement actions have been tried and the fine remains unpaid or these actions are not considered likely to be effective, the case is referred to the court. The court has a number of options including waiving all or part of the fine, or substituting a sentence of corrective training, community service, or periodic detention, or a term of imprisonment (section 88). An offender will be discharged from any of the alternative sentences upon payment of the fine in full (section 91). There is a right of appeal in respect of the substituted sentences and of the period of imprisonment (section 89).

The Summary Proceedings Amendment Act (No 3) 1998 came into force on 1 November 1998. It increased the powers of the court to collect overdue fines and reparation, and to improve administrative arrangements for collecting fines and reparation. The new measures included powers to make attachment orders on benefits and other sources of income additional to those previously covered by the Summary Proceedings Act (principally salaries and wages), powers to make deductions from bank accounts, empowering court bailiffs to execute warrants to bring defaulters before the court (warrants to arrest), and Department of Courts information matching programmes with the Department of Social Welfare (now Department of Work and Income) and with the Inland Revenue Department to assist in locating defaulters.

There is now provision (where more than one monetary penalty is involved and the sums owing total $10,000 or more) for charging orders to be placed on houses, land, and other property (e.g. shares, partnerships) owned by the offender in order to obtain payments. The matter is presented in court and the judge can serve a writ of sale giving the Department for Courts the right to sell the property to recover the amount due plus costs. Charging orders (made in accordance with the District Courts Act 1947) can cover a wide range of property, including property in trust (sections 88(3)(fa) and 88(A) of Summary Proceedings Act 1957).

Related developments include a number of new procedures initiated by the Department for Courts Collections Business Unit. There is the use of wheel clamps as an enforcement tool, use of private debt collection agencies to assist in the collection of unpaid monetary penalties, the publication of the names of defaulters in local newspapers, redesigned in-court processes such as payment areas for monetary penalties, an expert means assessment system, improved follow-up procedures (e.g. collection officers — formerly bailiffs — became responsible for collecting fines from the moment they were imposed, not just when they became overdue), a centralised call centre, and promotion and publicity campaigns.

Sentence	1989	1990	1991	1992	1993	1994	1995	1996	1997	1998
Fine	113,010	73,781	65,261	57,593	61,052	62,783	65,245	65,072	56,407	54,988
Reparation	10,676	10,268	11,706	12,391	12,661	14,365	15,203	13,111	12,901	13,200
TOTAL	123,686	84,049	76,967	69,984	73,713	77,148	83,448	78,193	69,308	68,188

Note:
If one charge results in a sentence of both reparation and a fine, each is counted separately in the table.

Table 2: Percentage of convictions resulting in fine or reparation, 1989 to 1998

Sentence	1989	1990	1991	1992	1993	1994	1995	1996	1997	1998
Fine	51.3	42.0	35.0	31.6	32.4	32.9	33.9	33.8	31.1	29.6
Reparation	4.9	5.6	6.3	6.8	6.7	7.5	7.9	6.8	7.1	7.1

Note:
If one charge results in a sentence of both reparation and a fine, each is counted separately in the table.

Over the above period there was a decrease of 42% in the proportion of charges resulting in the imposition of a fine. Part of the overall decrease in the number of convictions awarded a fine during the decade is due to changes in legislation. Amendments to the Transport Act 1962 resulted in the decriminalisation of several minor traffic offences (changing them to infringement offences that do not result in a conviction). For example the Transport Amendment Act 1989 (which came into effect on 1 October 1989) changed the offence of driving having never held a driver’s licence to an infringement offence. This helps explain the drop in the number of fines in 1990. In 1988 there had been 11,994 prosecutions resulting in a conviction for this offence, nearly all of which would have resulted in a fine.^[30] There would have been a similar number in 1989 prior to 1 October.

Between 1996 and 1997 the number of fines was affected by the passing of the Dog Control Act 1996 which made the offence of failing to register a dog an infringement offence . About 5,000 fewer cases resulted in a monetary penalty in subsequent years because of this change.^[31] This obviously also results in the proportion of cases resulting in a monetary penalty going down.

The decrease in the use of monetary penalties in the late 1980s and early 1990s is also likely to be due partly to the expansion of the police adult diversion scheme from 1988. This has involved an increasing number of less serious cases (which would otherwise have been likely to receive a monetary penalty) being diverted from a conviction (as the scheme involves the police dropping the charges upon completion of diversion requirements). This has meant that the remaining cases became more serious on average and so likely to attract more serious sentences.^[32]

Both the expansion of infringement offences and the increased use of diversion resulted in a higher average seriousness of cases proved in the late 1990s. There was also a higher percentage of persistent offenders.^[33] However, a significant proportion of the change in the use of fines was due to different sentencing practices so that many of the offenders with certain characteristics who would previously have got a monetary penalty (for example those committing offences that were low on the offence seriousness scale) are now receiving community-based sentences, especially community service.^[34]

This was particularly the case between 1989 and 1992, during which period the sentences of periodic detention and community service were increasingly imposed instead of monetary penalties for cases at each level of offence seriousness except the most serious. This trend was most apparent for cases that were in the low seriousness categories.^[35]

Some of the change in sentencing practice may be due to changes in the financial circumstances of offenders (affecting their ability to pay a fine), which must be taken into account by the court before imposing a fine. This is on the assumption that judges are less likely to impose a fine when it would inflict undue financial hardship on the offender. The possibility that there has been a general fall in the average level of income or earnings of offenders appearing before the courts has not been subject to analysis. If a significant number of New Zealanders experienced a drop in real disposable income through unemployment, reduced investment earnings, or domestic inflation exceeding increases in earnings/benefits then this may have resulted in a greater proportion of offenders not in a position to pay more than minimal fines. Such a trend would also be expected to have a negative impact on fine collection rates.

Table 3: Court-imposed fines and reparation imposed 1989 to 1998

	1989	1990	1991	1992	1993	1994	1995	1996	1997	1998
Fines	29.3	25.4	24.6	20.7	21.8	22.8	24.3	26.2	23.1	22.6
Reparation	6.7	7.9	9.2	10.0	12.5	12.9	12.2	13.1	11.9	12.3
TOTAL	36.0	33.3	33.8	30.7	34.3	35.7	36.5	39.2	35.0	35.0

Note:
Fine and reparation amounts may not add up exactly to the total amount because of rounding.

When the types of offences resulting in monetary penalties are examined, it is seen that less serious offences are the most likely to result in such penalties. The offence types with the greatest use of fines are traffic offences (for which a fine was the primary sentence in 59% of all cases in 1998), offences against good order (54%) and drug offences (46%). Throughout the ten year period a monetary penalty was by far the most likely outcome of a conviction for cases involving a traffic offence. For many of the minor traffic offences that result in conviction, the maximum penalty that can be imposed is a fine (i.e. they cannot result in a community-based sentence or imprisonment). Traffic offences accounted for 63% of fines imposed as the primary sentence in 1998. The next highest group of offences contributing to total fines imposed were offences against good order which made up 8%. Case-based data for 1998 is presented below.^[37]

Offence type	Number of cases			% of sentences
	Total	Reparat-ion	Fine	% Reparation	% Fine
Violent	11057	183	1943	1.7	17.6
Other against persons	1589	16	561	1.0	35.3
Property	19759	2969	2427	15.0	12.3
Drug	7554	3	3491	0.0	46.2
Against justice	6884	20	772	0.3	11.2
Good order	6603	72	3549	1.1	53.7
Traffic	47359	457	27844	1.0	58.8
Miscellaneous	4835	177	3470	3.7	71.8
Total	105640	3897	44057	3.7	41.7

A significant number of offenders receive a fine as a secondary sentence (i.e. in combination with another more serious penalty such as a custodial or community-based sentence). This can be seen from the table below which includes data over the last decade.

	1989	1990	1991	1992	1993	1994	1995	1996	1997	1998
Primary sentence	91218	58131	53060	45895	47168	49375	51691	51762	44435	44057
Secondary sentence	2666	2383	1923	1900	2150	2439	2839	2749	2472	2310
TOTAL	93884	60514	54983	47795	49318	51814	54530	54511	46907	46367

In 1998, 7.1% of all convictions (a total of 13,200) resulted in a sentence of reparation. This compares to a rate of 4.9% (10,676) in 1989. The rate peaked in 1994 and 1995 when 7.5% and 7.9% of convictions respectively resulted in reparation. This is similar to the trend in the number of convicted charges resulting in a fine, which peaked at 65,245 in 1995 (33.9%), and declined down to 54,988 in 1998 (29.6%). Convictions for property offences are the most likely to result in a reparation sentence, with 21% (a total of 11,230) receiving such a sentence in 1998. The next highest proportion was 3.8% for violent offences.

Property offences accounted for 85% of the reparation sentences imposed in 1998 and 78% of the total amount of reparation imposed ($9.7 million out of a total of $12.4 million). The years 1994 and 1995 showed small increases in the use of reparation for property offences (to 22.4% and 23.7%), following the changes to the Criminal Justice Act in late 1993, but the 20% level in 1996 was a drop back to the 1993 level. It is not possible to determine from available data whether reparation sentences were imposed for part or the full amount of the victim’s financial loss.^[40]

Table 6: Whether convicted charges resulted in a sentence of reparation in 1998, by type of offence [41]

Offence type	Resulted in reparation		Did not result in reparation		Percent of reparation sentences
	Number	Percentage	Number	Percentage
Violent	611	3.8	15589	96.2	4.6
Other against persons	44	1.2	3494	98.8	0.3
Property	11230	21.0	42266	79.0	84.9
Drug	13	0.1	14170	99.9	0.1
Against justice	49	0.3	15652	99.7	0.4
Good order	114	1.1	10457	98.9	0.9
Traffic	837	1.3	61480	98.7	6.3
Miscellaneous	327	3.2	10048	96.8	2.5
TOTAL	13225	7.1	173156	92.9	100.0

Table 7: Percentage of convicted property charges resulting in a sentence of reparation, by type of property offence, 1989 to 1998 [42]

Offence type	1989	1990	1991	1992	1993	1994	1995	1996	1997	1998
Burglary	18.9	19.1	19.2	21.2	22.2	21.7	21.2	20.4	22.1	21.5
Theft	11.1	13.4	14.0	14.8	14.8	16.5	17.9	17.1	18.8	18.8
Receiving stolen property	7.5	8.1	8.3	8.0	8.8	8.7	9.1	8.7	9.9	9.3
Motor vehicle conversion	10.0	10.6	10.0	11.6	12.6	14.7	13.1	12.8	13.2	13.3
Fraud	22.5	23.9	21.9	20.6	20.2	24.2	26.2	18.6	18.3	18.9
Arson	17.0	11.2	18.8	17.0	18.6	16.2	20.9	29.7	28.5	19.1
Wilful damage	58.5	57.3	56.6	57.3	57.5	55.5	57.4	58.1	58.2	59.4
Other property	9.3	12.2	10.4	9.3	9.8	10.6	8.8	5.6	5.9	5.7
TOTAL	19.1	20.0	19.4	19.5	19.8	22.4	23.7	20.0	20.8	21.0

Approximately 60% of all reparation sentences imposed for property offences in the years 1990 to 1998 were for $250 or less. Approximately 75% of all reparation sentences imposed for property offences during those 9 years have been for $500 or less.^[43]

Statistics show variation in the use of reparation among courts. In 1998 only 13.6% of the convictions for property offences in the North Shore region resulted in reparation, compared to 33.3% in Dunedin.^[44]

Reparation is not usually imposed as the only sentence. The majority of reparation sentences are imposed in combination with a community-based sentence.

Table 8: Most serious sentence imposed in conjunction with reparation for property offences, 1995 to 1998^[45]

Sentence type	1995 number %	1996 number %	1997 number %	1998 number %
Custodial	674 5.0	509 4.5	861 7.7	619 5.5
Periodic detention	4763 35.1	3583 31.4	4061 36.4	3873 34.5
Community programme	214 1.6	179 1.6	98 0.9	112 1.0
Community service	1762 13.0	1496 13.1	1385 12.4	1331 11.9
Supervision	1718 12.7	1609 14.1	1040 9.3	1335 11.9
Fine	1632 12.0	1521 13.3	1339 12.0	1296 11.5
Deferment	489 3.6	461 4.0	376 3.4	317 2.8
Driving disqualification	25 0.2	13 0.1	21 0.2	31 0.3
Reparation only	2282 16.8	2029 17.8	1979 17.7	2316 20.6
TOTAL	13559 100.0	11400 100.0	11160 100.0	11230 100.0

In 1996 the Ministry of Justice undertook research on the types and sources of written information relating to reparation available to judges in property cases and on judges’ reasons for not imposing partial or full reparation for property offences. The aim was to ascertain whether lack of information was a major reason for the non-imposition of reparation, and to identify other reasons for not imposing reparation. The Ministry also undertook an assessment of the 1993 amendments to the provisions in the Criminal Justice Act 1985 relating to the imposition and enforcement of reparation. This was done through interviewing judges about the extent to which these changes had influenced their decisions.^[46]

In the 73 property cases in the survey where reparation was not imposed the reason given, or one of the reasons given, by the judge was as follows:

None of the judges indicated that a lack of information was the reason why they had not imposed reparation.^[47]

All 73 cases had a police summary of facts. Thirty-nine of those (53%) did not mention reparation although 99% contained information about the offender’s means. This is likely to have been because in approximately half of the cases there was no significant loss or the loss was made good (see paragraph above). Only 5 cases (7%) had a victim impact statement. Thirty-one cases (43%) had pre-sentence reports, nearly all of which (81%) made no mention of reparation, although 97% commented on the offender’s means and/or employment. Only 6 of the 73 cases had reparation reports.^[48]

In summary, the research indicated that lack of information either about the loss incurred by victims or the means of the offender was not a major reason for not imposing reparation in property cases.

In the interviews judges said they found the ideals of reparation laudable but that there were practical limitations to its use, namely defendants’ inability to pay. Instances of this are where the defendant is unemployed, has a large family, is liable for a large amount of reparation, is incarcerated, already owes large amounts, and where payments on a time payment basis would go on for years. Judges also commented that it was not always appropriate to impose reparation where there was provocation. Several judges commented that their sentencing practices had not been altered by the change to section 11 which strengthened the presumption in favour of reparation^[49] because they had always imposed reparation where possible. Another group indicated that the amendment had served to give greater focus to the issue of reparation for them. Providing for partial reparation to be imposed (section 22(6)) does not appear to have changed sentencing practices because the judges had imposed partial reparation prior to this provision.^[50]

When asked about the level of reparation sentences below which reparation reports are not required, most judges thought that $500 was too low. Some judges did not seek reports if more than $500 was involved, mainly because of the time delay involved.^[51]

In general the interviews with judges revealed that the 1993 amendments to the Criminal Justice Act 1985 legislated for practices already largely taking place and so did not produce significant changes in the courts’ use of reparation.

The 1996 research was consistent with the conclusion that a major reason for there being few cases where reparation is imposed (even with property offences) is the percentage of cases where there is no financial loss to the victim, sometimes because the loss is made good, or the property recovered. In nearly all cases where reparation is not sought by the police, the reason is likely to be because there was no loss to the victim.^[52]
[53]

Table 9: Number of previous convicted cases for offenders sentenced to a fine as the primary sentence in 1995 [55]

Number of previous convicted cases	Number	Percentage
0	18637	36.8
1	7270	14.3
2	4937	9.7
3-5	8337	16.4
6-10	6038	11.9
11-20	3866	7.6
21-50	1547	3.1
More than 50	61	0.1
TOTAL	50693	100.0
Average number of previous convicted cases	3.9

The next table shows that where fines are imposed as the primary sentence on offenders with a previous conviction most of those offenders had also received a fine as their most recent previous sentence. This is consistent with the finding that the probability of a fine is reduced if the offender’s most recent previous sentence has been imprisonment or one of the community-based sentences.^[56]

Table 10: Most recent previous sentence for offenders sentenced to a fine as the primary sentence in 1995 [57]

Most recent previous sentence	Number	Percentage
First offender	18637	36.8
Custodial	1192	2.4
Periodic detention	3855	7.6
Community programme	136	0.3
Community service	1557	3.1
Supervision	824	1.6
Monetary	20945	41.3
Other	3547	7.0
TOTAL	50693	100.0

Most court-imposed monetary penalties are combined with other sentences or court orders (as well as court costs), including 33% in combination with a driving disqualification, and 8% with a community-based sentence. In 3% of cases resulting in a monetary penalty both reparation and a fine were imposed.

Table 11: Most serious sentence imposed in conjunction with a monetary penalty in 1998^[58]

Sentence type	Number	Percentage
Custodial	294	0.6
Periodic detention	2209	4.2
Community programme	38	0.1
Community service	937	1.8
Supervision	893	1.7
Deferment	357	0.7
Driving disqualification	17476	33.4
Monetary penalty only	30121	57.6
TOTAL	52325	100.0

The age, gender, and ethnicity of offenders receiving monetary penalties

The following tables of cases show the distribution of fines in 1998 according to gender, ethnicity, and the age of offenders. Data showing this type of distribution for reparation are not included as reparation is only imposed as the primary sentence in a small number of cases. The percentage of cases involving New Zealand European offenders that resulted in a fine (41%) as the main sentence was 16% higher than the percentage of cases involving Mäori offenders where the fine was the principal sentence. This pattern was repeated for all types of offences. For offences involving Pacific peoples the proportion given a monetary penalty was higher than for Mäori offenders but not as high as for New Zealand European offenders.

Table 12: The percentage of cases resulting in a fine as the primary sentence, by offence type and ethnicity and gender of offender, 1998 [59]

type	NZ European	Mäori	Pacific peoples	Other	Male	Female
Violent	24.0	13.4	12.7	18.5	17.8	15.3
Other against persons	39.7	30.3	33.3	33.3	36.3	26.5
Property	13.9	10.8	11.1	16.5	12.2	12.4
Drug	49.5	41.0	47.3	75.0	47.4	39.4
Against justice	14.1	9.0	9.4	17.1	11.4	9.4
Good order	59.2	48.1	46.8	51.8	55.3	37.2
Traffic	57.8	35.1	49.2	68.4	58.8	58.0
Miscellaneous	71.1	58.4	61.8	80.5	71.0	68.8
Total	41.3	25.1	30.1	46.8	41.8	39.1

However, after taking these factors into account Mäori and Pacific offenders are still less likely to receive a fine. Women offenders are also much less likely to receive a fine, even after taking offending characteristics into account.^[60]

Table 13: The percentage of cases resulting in a fine as the primary sentence, by offence type and age of offender, 1998 [61]

Offence type	Age
	17-19	20-24	25-29	30-39	40+
Violent	15.0	19.7	16.9	17.0	19.5
Other against persons	33.5	37.6	38.6	33.2	29.8
Property	9.2	11.9	11.9	13.8	18.9
Drug	48.9	47.3	47.0	43.4	47.1
Against justice	9.3	10.4	11.4	12.3	13.5
Good order	56.5	58.9	54.4	48.4	39.8
Traffic	58.9	57.9	53.0	55.1	66.7
Miscellaneous	82.1	64.3	61.4	60.7	66.5
Total	39.7	38.9	37.4	39.8	51.6

Offenders who were aged 40 years or more were more likely to receive a fine than offenders of other ages. Other than with this group, the age of the person does not appear to have a significant impact on the likelihood of an offender receiving a monetary penalty.

Under section 28 of the Criminal Justice Act 1985 (as amended in 1987) the court when imposing a fine may award by way of compensation the whole or a part of the fine to a victim who has suffered physical or emotional harm.^[62]

	1989	1990	1991	1992	1993	1994	1995	1996	1997	1998
Number	941	1050	1041	1023	1156	1512	1802	1764	1681	1767
Percent of total fines	0.4	0.6	0.6	0.6	0.6	0.8	0.9	0.9	0.9	1.0

Table 15: Number of fines where there was an order of compensation according to offence type, 1989 to 1998 [64]

Offence type	1989	1990	1991	1992	1993	1994	1995	1996	1997	1998
Violence	635	618	589	518	684	900	962	951	931	946
Other against person	8	11	10	10	10	25	52	46	28	32
Property	36	28	28	23	25	51	74	75	66	89
Drug	0	0	0	0	0	1	0	0	0	0
Against Justice	1	7	8	1	6	7	15	8	18	18
Good order	20	31	17	22	31	40	38	30	44	46
Traffic	140	206	264	270	271	302	379	353	365	413
Miscellan-eous	101	149	125	179	129	186	282	301	239	223
TOTAL	941	1050	1041	1023	1156	1512	1802	1764	1681	1767

Table 16: Number of fines where there was an order of compensation according to type of violent offence, 1989 to 1998 [65]

Offence type	1989	1990	1991	1992	1993	1994	1995	1996	1997	1998
Indecent assault	14	15	19	17	22	60	47	41	42	37
Aggrav robbery	1	1	2	0	1	0	3	5	4	2
Robbery	4	0	3	4	3	4	10	1	10	4
Grievous assault	14	10	16	9	24	24	40	37	44	44
Serious assault	160	148	172	130	226	284	297	305	338	336
Male assaults female/ assault on a child	80	58	67	81	89	122	155	151	135	123
Minor assault	357	385	301	276	315	396	399	403	341	395
Threaten to kill	4	1	4	1	2	4	7	5	4	3
Other violence	1	0	5	0	2	6	4	3	3	2
TOTAL	635	618	589	518	684	900	962	951	921	946

Note:
The offence type ‘other violence’ includes manslaughter, kidnapping/abduction, rape, unlawful sexual connection, and attempted sexual violation.

People who fail to pay fines may be dealt with in a number of ways including, as a last resort, re-sentencing to periodic detention, community service, or (rarely) imprisonment. The table below provides data on re-sentencing from 1992/93. Data for earlier years are not available. The figures are charge-based rather than relating to the number of offenders who are re-sentenced (which will be a smaller number). They also include infringements lodged with the courts that are then enforced as fines.

Table 17: Number of fines default charges re-sentenced to community-based sentences or imprisonment, 1992/93 to 1998/99^[66]

Sentences	1992/93	1993/94	1994/95	1995/96	1996/97	1997/98	1998/99
Imprisonment	2932	1351	840	547	718	708	936
Periodic detention	20297	19576	19532	22980	24990	26788	31706
Community service	20712	19963	18605	19333	18682	14650	14038
TOTAL	43941	40890	38977	42860	44390	42146	46680

Note:
Years are financial years ending 30 June.

Each year a number of warrants to arrest fine defaulters are issued by the courts.^[67] They often follow on from a failure to locate the fine defaulter. In the past many such warrants have not been actively executed by the police. Normally no special enquiry is carried out by the police and the warrant is held in special filing at the receiving police station until the defendant comes to the notice of the police through subsequent offending.^[68] At the time of 1997 census of prison inmates (20 November 1997) there were no sentenced inmates in custody solely for default of a monetary penalty.^[69] That is, in nearly all cases, people who default on a monetary penalty and end up in prison are also there for other unrelated offending.

The table below shows reconviction rates after one and two years, for non-custodial sentences imposed in 1995. Reconviction rates for custodial sentences of one year or less are included as a comparison. Although offenders sentenced to a monetary penalty had the lowest actual reconviction rates, this is predictable on the basis of the characteristics of the offenders receiving monetary penalties. The most important variables for predicting recidivism are the criminal history and the demographic group (age, gender, ethnicity) of the offender. A high proportion of offenders who receive fines have committed an offence of low seriousness, have a limited offending history, and are aged 30 years or older. None of the sentence types are highly significant predictors of recidivism.^[70]
[71]

Sentence	One year reconviction rate	Two year reconviction rate(ii)
Prison for one year or less(i)	0.63	0.80
Periodic detention	0.60	0.73
Community programme	0.47	0.63
Community service	0.37	0.51
Supervision	0.45	0.61
Monetary	0.30	0.41
Other	0.39	0.51

(i) Reconviction rates are within one and within two years from the estimated date of release from prison. (People given a custodial sentence of longer than one year in 1995 were excluded from the table as, in most cases, there was less than one year between the person’s release from prison and when the data on reconvictions were extracted.)

(ii) Two year reconviction figure excludes data for 6% of cases where there was less than two years between the person’s estimated date of release from prison and when the data on reconvictions were extracted.

In addition to court-imposed fines, a large number of fines in any one year result from unpaid infringement fees for infringement offences. Unlike judicially-imposed fines, the number of unpaid infringement notice fees being lodged with the courts has continued to increase during the past decade, from about 200,000 in 1989/90 to about 630,000 in 1998/99. Most of these originate from notices issued by local authorities and the police. They currently constitute almost 80% of the number of fines to be collected and 50% of the value of fines imposed. The increase has been, in part, a result of the merger of the Traffic Safety Service of the Ministry of Transport with the Police in 1992 (so that the Police were also issuing infringement notices for traffic offences and the numbers of hours being assigned to road safety have been able to be increased) and the introduction of speed cameras in 1993.^[72] In total the Police issued 1,062,000 infringement offence notices for traffic offences in 1998/99, compared to 864,000 the previous year. This included more than 500,000 speeding infringement notices (of which 394,000 were detected by speed cameras) in 1998/99.^[73]

Table 19: Number of infringements lodged with the courts, 1992/93 to 1998/99^[74]

	1992/93	1993/94	1994/95	1995/96	1996/97	1997/98	1998/99
Police	98,864	123,585	202,361	244,824	279,976	314,264	398,581
Local authorities	103,233	108,854	130,642	164,532	197,006	203,229	227,857
Other agencies	266	69	44	480	68	97	44
TOTAL	202,363	232,508	333,047	409,836	477,050	517,590	626,482

Table 20: Amount of infringements lodged with the courts, 1992/93 to 1998/99 ($ millions)^[75]

	1992/93	1993/94	1994/95	1995/96	1996/97	1997/98	1998/99
Police	21.93	25.31	35.81	43.79	52.43	60.77	82.94
Local authorities	13.37	9.08	11.55	14.03	17.25	21.99	26.70
Other agencies	0.08	0.02	0.01	0.10	0.02	0.03	0.01
TOTAL	35.39	34.40	47.37	57.91	69.69	82.79	109.65

(iii) Component numbers do not always exactly add up to total because of rounding.

Fines collection rates for infringement notice fines are consistently lower than for court-imposed fines. The sheer volume of infringement fee fines is likely to be a contributing factor. A 1993 fines enforcement audit^[76] identified other reasons as the lack of any consideration of the defendant’s means in respect of infringement notice fines, and the lack of reliable and full identification information for the enforcement of these fines.^[77] Furthermore, the infringements lodged with the courts often represent those cases where the offender is unwilling to pay, to a much greater extent than with offenders sentenced to pay a fine . It may be that an increasing number of the public are now viewing infringement notices principally as a revenue-gaining activity by local authorities, resulting in a greater reluctance to accept the authority and jurisdiction of the courts when it comes to their enforcement.^[78] There may even be a lessening of respect and compliance with central and local government regulations in general as we move towards values associated with the free-market economy. The mobility of the New Zealand population presents problems for those engaged in locating defaulters, although computerised information sharing by the Department of Work and Income and IRD with the Department for Courts has improved the situation.

A proportion of unpaid fines will not be overdue but will be in the process of being paid through time to pay arrangements. There will be other smaller amounts involving cases under appeal or where the initial time to pay has not yet expired and so enforcement action has not begun.

Table 21: Amounts of monetary penalties imposed/lodged and collected and amounts outstanding, 1992/93 to 1998/99 ($ millions)^[79]

	1992/93	1993/94	1994/95	1995/96	1996/97	1997/98	1998/99
Total imposed				123.4	130.3	153.3	175.8
Total collected	48.3	50.6	59.3	70.8	79.6	98.2	112.0
Total unpaid	111.4	130.2	156.1	185.1	213.9	245.7	281.7
Total overdue			111.3	123.3	158.5	173.2	176.3

In recent years the overdue portion of the total unpaid balance has been declining (from 67% in 1994/95 to 63% in 1998/99) and the time to pay portion has been increasing.^[80] This has seen a reduction in the growth rate of the amount of overdue payments. In 1995/96 it grew by 18% and the next 2 years saw growth rates of 29% and 9%. In 1998/99 it grew by only 1.8%. The amount of monetary penalties (including infringements) collected in 1998/99 was 64% of the amount imposed in that year, compared with a 57% rate three years before, although these two sets of figures do not relate to the same penalties (e.g. a proportion of the receipts in one particular year will relate to fines imposed in previous years) and so do not therefore indicate what proportion of fines end up being fully paid.

The tables below show the different collection rates for infringements lodged with the courts, court-imposed fines, and reparation for the financial years 1995/96 to 1998/99.

Table 22: Amounts of lodged infringements, and amounts collected and unpaid during year, 1995/96 to 1998/99 ($ millions)^[81]

	1995/96	1996/97	1997/98	1998/99
Total lodged	72.77	83.53	107.46	127.37
Total receipts	17.87	19.73	27.83	31.53
Total credits	6.82	6.39	7.06	8.48
Total unpaid	48.08	57.42	72.56	87.36

Table 23: Amounts of court-imposed fines imposed and collected and amounts unpaid, 1995/96 to 1998/99 ($ millions)^[82]

	1995/96	1996/97	1997/98	1998/99
Total imposed	38.31	33.23	32.87	35.42
Total receipts	16.72	16.32	16.17	17.00
Total credits	1.61	1.34	1.06	1.33
Total unpaid	19.98	15.57	15.64	17.09

Table 24: Amounts of reparation imposed and collected and amounts unpaid, 1995/96 to 1998/99 ($ millions)^[83]

	1995/96	1996/97	1997/98	1998/99
Total imposed	12.25	13.49	12.94	13.00
Total receipts	2.72	2.76	3.07	3.43
Total credits	0.31	0.44	0.25	0.16
Total unpaid	9.22	10.30	9.62	9.41

The payments collected (which does not include remissions) as a percentage of the amounts imposed in 1998/99 were 25% for infringements, 48% for court-imposed fines, and 26% for reparation.

Within the general population there continues to exist strong support for the use of fines, particularly for property offences. A 1994 Listener/Heylen poll showed 77% of respondents agreed that there should be more emphasis on heavy fines or the confiscation of offenders’ property where it has been directly involved in the offence. This statement was unrelated to types of offenders or offences.

A 1999 public attitudes survey conducted by the Ministry of Justice showed that fines were a more acceptable sentence for crimes such as fraud or possession of cannabis than for drunk driving, domestic assault, aggravated burglary, and importing serious drugs. In a hypothetical case involving fraud of $50,000, 52% of respondents considered a fine to be a more suitable sentence than a sentence of 150 hours community service. In another case involving possession of 10 grams of cannabis a fine was preferred by 47% to a conviction and discharge.^[84]

It is likely that there will be a continuing growth in the volumes and amounts of infringement notices with the creation of new offences to be dealt with as infringements (e.g. the issuing of failing-to-carry infringement notices in respect of the new driver photo licensing regime that was introduced in May 1999), technological innovations and improvements that increase the capacity to detect offences and apply the infringement regime to them, and the spread of infringement offences into more areas of regulation. A large number of infringements will continue to come into the courts for enforcement.

There is also likely to be a rise in fines impositions during the next five years (unless there is a declining economic situation) driven by:

The use of reparation is unlikely to change significantly in the short term if the nature of the sentence remains the same. The amount of reparation imposed from one year to the next can fluctuate significantly if there are a few very large reparation sentences imposed in any particular year.

In England and Wales financial penalties, not including costs, fall into the following categories:

All except the last are collected and enforced by magistrates’ courts (even when imposed by the Crown Court). The first three can be, and often are, reduced by the court to take account of mitigating circumstances including the limited means of the offenders, while the last two cannot be reduced, although in practice it is occasionally decided not to enforce them.

For most summary offences the maximum amount of the fine for any one offence was originally specified by the statute creating the offence. However, these amounts did not keep their real value because of inflation and the system was changed in 1982. The Criminal Justice Act 1982 (section 37) described summary offences (with some exceptions) as punishable by a level of fine. Each level related to a maximum fine according to a ‘standard scale’, and these maxima could be increased or reduced by an order of the Home Secretary. The maxima have been adjusted upwards since 1982. In 1997 they were as follows:

1 £200
2 £500
3 £1,000
4 £2,500
5 £5,000^[85]

Unless a statute prescribes a maximum, there is no limit to the amount of the fine which the Crown Court can impose for indictable offences, apart from guidelines in case-law. Magistrates’ courts are subject to a limit set in the Magistrates Court Act 1980, which is currently £5,000 for adult offenders.

(1) Before fixing the amount of any fine to be imposed on an offender who is an individual, a court shall inquire into his financial circumstances.

(2) The amount of the fine fixed by a court shall be such as, in the opinion of the court, reflects the seriousness of the offence.

The court may reduce the amount of the fine by way of mitigation. The most common reason for doing this is the offender’s means. Section 18(3) states that

(3) In fixing the amount of any fine.........a court shall take into account the circumstances of the case including among other things the financial circumstances of the offender as far as they are known, or appear, to the court.

Section 18(5) as substituted in 1993 provides for the court to raise the fine after considering the financial circumstances. It states

(5) Subsection (3) above applies whether taking into account the financial circumstances of the offender has the effect of increasing or reducing the amount of the fine.

Another reason for reducing the amount of the fine is that the offender is also being ordered to pay compensation to the victim. In practice many fines are reduced by courts for this reason. Where the court considers it appropriate to impose both a fine and a compensation order, but the offender’s means are insufficient to pay both an appropriate fine and appropriate reparation, the court is to give preference to compensation, although it may impose a fine as well (section 67 Criminal Justice Act 1982).

The Magistrates’ Association has produced sentencing guides for fines that for all types of cases suggest an ‘entry point’ for an offence of average seriousness committed by an offender of average means. Justices are then encouraged to consider a number of aggravating and mitigating circumstances which might make the case before them more or less serious (and they must consider the offender’s means). The guidelines are based on a first-time offender pleading not guilty. They were revised in 1993 and took into account official figures on average earnings. Examples of these average guideline fines are:^[86]

Drunk and disorderly £90
Careless driving £180
Cultivation of cannabis £180
Criminal damage £270
Theft from a shop £270
Failing to stop and report an accident £360
Driving without insurance £540

In 1996, out of a total of 1,364,100 offenders sentenced in the magistrates’ courts about 1,069,700 offenders were fined.^[87]

If the offender cannot pay immediately, time to pay can be, and usually is, allowed. If the offender falls behind with the payments, a number of measures can be applied such as:

In 1984 the Government decided not to include a community service order as an alternative to imprisonment for non-payment of a fine after hearing objections from the probation service who did not favour the inclusion of unco-operative fine-defaulters in groups of community service workers.^[88]

The magistrates court may issue a warrant of commitment to prison for default. The period of imprisonment depends on the amount of the fine. The maximum periods are (schedule 4 Magistrates Court Act 1980)

Up to £200 7 days
Over £200 to £500 14 days
Over £500 to £1,000 28 days
Over £1,000 to £2,500 45 days
Over £2,500 to £5,000 3 months
Over £5,000 to £10,000 6 months
Over £10,000 to £20,000 12 months
Over £20,000 to £50,000 18 months
Over £50,000 to £100,000 2 years
Over £100,000 to £250,000 3 years
Over £250,000 to £1 million 5 years
Over £1 million 10 years

Any period specified is automatically reduced by the proportion of the fine that is paid (less one day), so that if half the fine is paid 30 days is reduced to 16. The offender may buy himself out after entering prison. A commitment warrant cannot be issued unless the magistrates court has tried or at least considered all the other possible means of enforcement. The average population of fine defaulters in prison in 1997 was 141. In 1996 the average time served in prison for fine defaulters was 7 days for males and 5 days for females, although in that year 44 offenders served between 3 and 6 months.^[89]

In the Crime (Sentences) Act 1997 the penalties of community service orders, curfew orders enforced by electronic monitoring, and driving disqualification for up to 12 months were introduced for fine default. The Act sets out sentencing scales for fine defaulters given curfew orders or community service (though not for those given driving disqualification). For community service it is:

Up to £200 40 hours
Over £200 up to £500 60 hours
More than £500 100 hours.

For curfew orders (which require an offender to remain over the duration of the order at a specified place for specified periods between 2 hours and 12 hours in any one day) it is:

Up to £200 20 days
Over £200 up to £500 30 days
Over £500 up to £1,000 60 days
Over £1,000 up to £2,500 90 days
Over £2,500 180 days

According to the Home Office, these measures were to help improve fines collection and strengthen the fine as a penalty. Norfolk and Greater Manchester were selected to pilot these measures. A research study showed that in both areas community service was the most popular of the three measures used for fine defaulters, comprising 74% of all orders (81% in Norfolk and 72% in Greater Manchester). Curfew orders made up 13% and driving disqualifications 13%. Summary motoring offences were the most common offences for which defaulters had originally been fined, followed by theft and summary non-motoring offences. It is possible to pay all or part of the fine outstanding at any time to reduce or set aside the order but this happened in only 2.5% of cases.^[90]

In some countries (e.g. France) a fine can be suspended, and enforced only in the event of a further conviction. England has something similar with the courts’ powers to bind over an offender to keep the peace or be of good behaviour. The offender (or someone else who acts for the offender as a surety) is required to enter into a recognisance (a bond) involving a specified sum of money which is not paid at the time but is forfeited if the offender is later found to breach the bind-over. If it is the offender who has entered into the recognisance, he or she is in effect being fined, but is only required to pay the fine if certain conditions are breached. There is no power to imprison for breach of a recognisance although the offender can be imprisoned in default of payment of the forfeited amount.

Under the Powers of Criminal Courts Act 1973 and Criminal Justice Acts there is provision for compensation orders directing an offender to pay money to the court for transmission to a victim who has suffered personal injury, or property loss or damage as a result of the offence. A compensation order can be made either in addition to or instead of any other sentence or disposal, so that it may be the sole penalty imposed for an offence. In every case involving injury or property loss the court must give reasons if a compensation order is not made. If the court considers that both a fine and a compensation order are appropriate but the offender’s means are not sufficient to pay both, it must give priority to the compensation order. As with fines, compensation orders may be paid by instalments. The amount of the compensation should be what the court considers appropriate having regard to the evidence and to any representations made by or on behalf of the accused or the prosecutor (section 67 Criminal Justice Act 1982). Generally, an order cannot be based on injury, loss, or damage due to traffic offences. Magistrates courts cannot order compensation of amounts exceeding £5,000 in respect of any one offence (Criminal Justice Act 1991). The Crown Court does not have this restriction but both courts must have regard to the offender’s means. The Magistrates’ Association has published a table with guidance as to the amounts of compensation to be awarded for personal injury cases.^[91]

In 1996, 19% of offenders convicted of indictable offences in magistrates’ courts, and 8% in Crown Courts, were ordered to pay compensation. The figure is lower in the Crown Courts because of the higher proportion of cases receiving imprisonment. The practice is that compensation is not normally combined with a custodial sentence. The average amount of compensation in magistrates courts in 1996 was £194 for indictable offences and in Crown Courts it was £1,072. In the magistrates courts 53% of all offenders sentenced for a violent offence were ordered to pay compensation at an average of £200.^[92]

In 1960 the Road Traffic and Roads Improvement Act authorised the introduction of the fixed penalty procedure, a new method of law enforcement for parking and lesser offences involving stationary vehicles (it also authorised the appointment of traffic wardens to aid police in the enforcement of parking and other controls on road traffic). The Act both defined the offences to which the new procedure was to apply (no-parking, no-waiting, and parking meter offences and breaches of requirements to have specified lights and reflectors on parked vehicles at night) and the areas within which it was to operate (initially the County of London but soon to be other centres). Offences not included continued to be processed by way of summons before a magistrates’ court. The fixed penalty notice could be attached to the offending vehicle or given to the alleged offender. Payment within 21 days of the penalty amount prescribed in the notice discharged the offender’s liability and did not count as a conviction. Non-payment of the amount within the specified time led to the issue of a conventional summons for the offence. The maximum penalty that could be imposed by the court was higher, and if the person was found guilty there would be a conviction entered.

Within a year the local Commissioner of Police reported considerable work emanating from non-compliance with the new procedures. The central weakness was considered to be that of identifying the offender who was to be pursued by summons for non-payment. The enabling provisions of the fixed penalty scheme were re-enacted by the Road Traffic Regulation Act 1967 which also extended the lighting offence provisions to moving vehicles. By 1974 the non-payment rate of fixed penalty notices had reached 50% and there were insufficient court resources to prosecute the hundreds of thousands of defaulters in order to enforce payments. The Road Traffic Act 1974 (UK) imposed a system of “owner liability” under which the registered owner of the vehicle was deemed to be the driver at the time of the commission of the offence unless he or she proved the contrary.

As a result of a 1981 Interdepartmental Report of the Home Office and the Department of Transport the fixed penalty system for dealing with minor traffic offences was expanded in the Transport Act 1982 (UK), although the relevant provisions did not come into force in England and Wales until 1986. (Scotland had some provisions come into force in 1983.) The fixed penalty provisions of the 1982 Act were later incorporated in the Road Traffic Offenders Act 1988. The objective of the new legislation was to increase the scope and effectiveness of fixed penalty notices by:

The Road Traffic Act 1991 (UK) amended parts of and added to the 1988 Act. Part II (which set out to improve traffic conditions in London) established that contraventions of orders relating to designated parking places in London were no longer criminal offences and London authorities could impose penalties for them recoverable as civil debts. The legislation also contained provisions to facilitate the use of automatic detection devices for road traffic law enforcement throughout the UK. Owner-onus provisions applied where automatic speed recording or photographic devices detected vehicles committing speeding or traffic light offences. A new conditional fixed penalty offer scheme allowed the police to proceed by way of a fixed penalty notice in dealing with these offences, even if no notice was given to the person or affixed to his or her vehicle at the time of the offence. There were also provisions for evidence obtained by these detection devices to be given in court in contested cases, thus minimising the need for police to attend and give oral evidence. The use of automatic cameras to detect and prove speeding and disregard of traffic lights has added significantly to the numbers of fixed penalty notices.^[93]

Some government departments and agencies impose administrative fines. The Inland Revenue include “mitigated [financial] penalties” as part of their “voluntary settlements” with tax evasion offenders. These are less than the fine which a court would impose. Under the Customs and Excise Management Act 1979 customs officers at ports levy “on the spot” fines for minor attempts at smuggling.^[94]

Legislation relating to current fining practice is contained mostly in the Criminal Procedure (Scotland) Act 1975 and the Criminal Justice (Scotland) Act 1980. A person convicted on indictment of any offence is liable to a fine of any amount, even where the statute fixes an amount or a minimum amount. A sheriff has power on convicting a person of a common law offence to impose a fine not exceeding the sum prescribed under the 1975 Act, £5,000 in 1993. The district court is entitled on conviction of a common law offence to impose a fine not exceeding level 4 on the standard scale, currently £2,500. There is a standard scale of fines for offences triable only summarily. It is as follows:^[95]

1 £200
2 £500
3 £1,000
4 £2,500
5 £5,000

In determining the amount of any fine, a court is required to “take into consideration, amongst other things, the means of the offender so far as they are known to the court” (section 395(1) of the 1975 Act). If the result of the fine imposed would be that the offender could not pay it, or the instalments set, and would therefore almost certainly end up in prison for non-payment, the fine would be considered excessive. The court may order immediate payment, allow a set period for payment, or permit payments by instalments. The court may at a later date allow further time to pay or change the instalment plan following an application by the offender. At the time of imposing the fine or a subsequent occasion the court can place the offender under the supervision of a person appointed “for the purpose of assisting and advising the offender in regard to payment of the fine” (section 400(1) of the 1975 Act).

The most commonly used sanction for offenders who default on their fines is imprisonment or detention in a young offender’s institution (if between 16 and 21). The court may at the same time that it imposes a fine set a period of imprisonment to be served in the event of default on the fine. There are maximum periods set out in legislation (section 23(2) of the Criminal Justice Act 1991) which correlate with the amount of the fine, starting at 7 days for fines not exceeding £200, and including 14 days for fines between £200 and £500, and 28 days for fines between £500 and £1,000. If the offender does subsequently default he or she is liable to serve custody without any recourse to further court appearances to review the situation and encourage payment. This procedure is subject to the court determining that “having regard to the gravity of the offence or to the character of the offender, or to other special reason, it is expedient that he should be imprisoned without further inquiry in default of payment” (section 396(4) of the 1975 Act). In cases where the alternative of imprisonment has not been set at imposition but the offender defaults and is brought to a means inquiry court, the sentencing judge may then apply the alternative so that any future default results in imprisonment for non-payment. The length of time an offender must serve in custody as an alternative to payment is related to the size of the outstanding fine. The court may at any time remit a fine in part or whole.

Section 35 of the Criminal Justice Act 1995 allowed supervised attendance orders to replace imprisonment as a means of dealing with those in default of fine. It is an option solely for fine defaulters who would otherwise be imprisoned. The order involves undertaking 10 to 100 hours of specified activity supervised by the local authority social work department. Breach of an order is punishable by imprisonment, up to the maximum custodial sentence available to the court (i.e. not limited to a term of imprisonment linked to the amount of fine outstanding). The Criminal Procedure (Scotland) Act 1995 made the supervised attendance order the sole penalty for fine default in respect of 16 and 17 year old offenders and in respect of offenders over 17 years where the amount of fine outstanding is less than £500.^[96]

Under Part IV of the 1980 Act (which came into effect on 1 April 1981) the criminal courts in Scotland can order convicted offenders to pay compensation to victims for any personal injury, loss, or damage resulting from the crime. The legislation allows for the compensation order as a sole sanction (section 58) and gives priority to the payment of a compensation order over a fine (section 60). The means of the offender is to be taken into account in determining whether to make a compensation order and the amount of the order. The money is payable to the victim through the clerk of the court. No compensation order may be made in respect of loss suffered as a consequence of the death of any person or of injury, loss, or damage due to a road accident except when this follows from the theft and driving away of a vehicle. Compensation orders were used as the main penalty for 1% of persons against whom charges were proved in 1995, which was a similar rate to that of the previous 7 years. However, a compensation order is more commonly imposed along with other sentences, typically a fine. It was used either as a primary or secondary sentence in 4.7% of cases in 1995. It is most commonly used for offences of vandalism, less frequently for offences of dishonesty, and very infrequently for offences of violence against the person.^[97]

A further sanction available to the courts as a main or additional penalty is the caution. This is available only for common law offences and involves the offender paying the court a sum not exceeding £2,500 in the district court and £5,000 in sheriff summary cases as security for good behaviour. There is no limit to the amount of caution which can be ordered on conviction of common law offences on indictment. The maximum period over which caution may be ordered is 6 months in the district court and 12 months in the sheriff court. The use of the power to order cautions is minimal.^[98]

Outside of the courts there exist monetary penalties which relate to minor offences and do not involve prosecution. These are fixed penalties for traffic offences and fiscal fines issued by the procurator fiscal service (the independent Scottish prosecution service). The fixed penalty procedure administered by police and traffic wardens has been that of the UK discussed above. This was extended to the whole of Scotland in 1970 (the Fixed Penalty (Areas) (Scotland) Act 1970). In 1983 the procurator fiscal was able to offer a fixed penalty in respect of certain vehicle offences. As with England and Wales, an extension of the police and traffic warden fixed penalty notice scheme was implemented in 1986 and there was a further extension in 1991.

Under the Criminal Justice (Scotland) Act 1987 the procurator fiscal is empowered to offer a fiscal fine to an alleged offender in respect of any offence which may be tried in the district court (the lowest court in the hierarchy of criminal courts) except those motoring offences which are covered by the fixed penalty scheme. The alleged offender can agree to pay the specified amount as an alternative to the case being prosecuted in the district court. These fines, payable as a lump sum or in instalments, cannot exceed a certain level, and are at the discretion of the procurator fiscal. Payment of a fiscal fine does not involve a criminal record.

There are also monetary payments as a condition of deferred sentences.

Scotland makes more extensive use of the fine than England and Wales or Northern Ireland. In 1994 the fine was used to deal with over 80% of offence cases (minor infractions such as motor vehicle offences, drunkenness, breach of the peace, and petty assault) and 48% of cases involving crimes (more serious offences).^[99]

The imprisonment of fine defaulters appears to be a particularly serious problem in Scotland. Around 6% of all those who are fined receive a custodial sentence for fine default. Around 42% of receptions into penal establishments in Scotland in a year are fine defaulters. This compares to 26% in England and Wales. Around 6 or 7% of the average daily prison population are in prison for default of payment of fines or compensation orders (Scotland has a high per capita rate of imprisonment compared to other European countries).^[100]

All jurisdictions have powers in statute to fine an offender. In some jurisdictions (Northern Territory, Queensland, South Australia, and Victoria) the court has a discretion not to record a conviction when fining an offender. In ACT and New South Wales the courts have such discretion where conditional release of an offender is involved. In Tasmania and in Western Australia a conviction must be recorded when a fine is imposed although in the latter state the court is empowered to make a spent conviction order (so that the conviction largely ceases to be a matter of public record and consideration after a set period) . Under the Commonwealth (Cth) jurisdiction it is mandatory to record a conviction but under the Crimes Act 1914 (Cth) the court may release the offender after conviction without passing sentence, subject to certain conditions, which can include an order to pay a pecuniary penalty. The maximum of such an order is the amount of the maximum fine that could be imposed, or if no fine is specified, other limits are provided.

In most jurisdictions legislation creating offences punishable by fines usually prescribes the maximum limits on the amount of the fine in dollar terms for each offence and sometimes fixes a minimum amount as well. In 1981 Victoria passed the Penalties and Sentences Act 1981 (Vic) which authorised and partly implemented a changeover from fines to penalty units. Instead of a specified dollar amount being prescribed as the maximum fine for each fineable offence, Victorian monetary penalties are now defined by statute and imposed by reference to a defined number of penalty units. The value of the penalty unit was set at A$100 and this remains the case under section 110 of the Sentencing Act 1991 (Vic). The legislation describing the offence fixes a fine or sets a maximum for that specific offence in terms of a number or fractional number of penalty units, or it states the level of the offence which is related to a maximum number of penalty units set out in the Sentencing Act 1991 (Vic) as follows (where each “penalty unit” equals A$100)

Queensland also sets fines by reference to penalty units (Penalties and Sentences Act 1992 (Qld)). The value of a penalty unit is either A$60 for infringement notice penalties, A$100 for offences under the Co-operatives Act 1997, or A$75 in all other cases. The federal government introduced penalty units in 1992 with the Crimes Legislation Amendment Act 1992 (Cth) which amended the Crimes Act 1914 (Cth). The value of a penalty unit was set at A$100 and increased to A$110 in 1997.

There is also another way that fines are calculated. Many Acts provide that the amount of the penalty is to be related to the amount of the damage or loss caused, or the extent of the fiscal obligation breached. The formulae are varied. Sometimes the fine derives from the worth of the goods or services involved, and upon this is superimposed a further amount not exceeding a maximum specified in the legislation. For other offences, particularly in relation to taxation and fiscal matters, the monetary penalty is expressed as a percentage or multiple of the amount evaded or otherwise involved. A third approach is to apply a fixed or, at times, variable ratio to some quantifiable aspect of the subject matter of the offence (such as so many penalty units for each item over a legal limit).

Although a fine is normally ordered as a penalty on its own, a fine can be ordered in addition to another penalty, usually a sentence of imprisonment. Where an offender has profited from his or her crime, a fine in addition to a period of imprisonment may be appropriate, particularly if there is good reason to believe that these profits are hidden away.

There are some general principles stated in Australian case law. A fine must constitute an appropriate punishment, balancing the need to punish the offender, and the offender’s capacity to pay. The amount and method of payment of the fine needs to take into account, as far as practicable, the financial resources and income of the offender and the nature of the burden that payment will impose. The means of the offender are not relevant to the decision as to whether a fine is the appropriate penalty for a particular offence. That is to be determined by the gravity of the offence, after which mitigating factors such as the offender’s ability to pay are taken into account.

Legislation in the Commonwealth, Australian Capital Territory, New South Wales, Northern Territory, Queensland, Victoria, and Western Australia states either that the financial circumstances of the offender, or his or her means to pay the fine, must be taken into account. The sentencing legislation in Tasmania does not address this matter. In the Northern Territory, Queensland, Victoria, and Western Australia, the nature of the burden that the fine will be on the offender is also a matter to be considered. In South Australia, the court must not make a pecuniary penalty order if satisfied that the defendant would be unable to comply with the order or if compliance would unduly prejudice the welfare of the offender’s dependants.^[101] In the Northern territory, Queensland, and Victoria the court, in considering the financial circumstances of the offender, must take into account any other orders that it or another court has made or is proposing to make for confiscation of the profits of crime, or for restitution or compensation. In most jurisdictions the court is empowered to fine an offender despite the fact that his or her financial circumstances are unable to be ascertained.

Where the amount of a fine is determined in the Northern Territory, Queensland, and Victoria, other matters in addition to the offender’s financial circumstances are also able to be taken into account, namely loss or destruction of property suffered by a person as a result of the offence, and the value of any benefit derived or received by the offender.^[102]

In most states where it is appropriate for the court to impose both a fine and an order for restitution or compensation, and the offender has insufficient means to pay both, the court is required to give preference to the restitution or compensation order.

In all jurisdictions an offender will either automatically be granted time to pay a fine or will be able to apply for time to pay. Generally, periods between one and three months are permitted for payment of small or modest sums. Where the fine is substantial, it has been held that, in general, a period of one year is the maximum time that should be allowed for payment (an extension may be considered after that time). There are also provisions in every jurisdiction that allow an offender to apply for a variation of the order to pay a fine, by way of further time to pay, or for the fine to be paid in instalments.

Traditionally, enforcement of payment of a fine occurred by way of a period of imprisonment in default of payment. Although default imprisonment remains available in nearly every jurisdiction, it is increasingly only being used as a last resort after all other enforcement methods have been unsuccessful. In response to criticisms of increasing prison numbers and the harshness of a jail term for non-payment of a fine, most jurisdictions now offer alternatives for fine default, such as the use of community service as a way of working off a fine.

For example, in Victoria the term for which a person in default of a fine may be imprisoned is 1 day for each A$100 or part of A$100 that remains unpaid with a maximum of 24 months (even if the fine is greater than A$73,000). However, the court may not order imprisonment if the offender satisfies the court that he or she did not have the capacity to pay the fine or instalments of the fine, or had another reasonable excuse for the non-payment. Also, the court must be satisfied that no other available order is appropriate in the circumstances before ordering imprisonment. These other orders are a community-based order involving unpaid community work, a warrant to seize property, a variation of the instalment, or an adjournment of the hearing for up to 6 months on any terms the court thinks fit. The number of hours of unpaid community work that can be ordered is 1 hour for each $20 or part thereof that is unpaid, with a minimum of 8 and a maximum of 500 hours.

Queensland (in Part 4 Division 2 of the Penalties and Sentences Act 1992 (Qld)) has a fine option order which permits the offender to apply to the court, at the time of the imposition of the fine or thereafter, for an order that the offender be allowed to work off the fine by way of community service. The number of hours of community service is determined by the court when imposing the order. The application for an order must be supported by a statutory declaration stating the offender’s income, assets, and liabilities. The court must consider whether the offender is unable to pay the fine or whether the offender or the offender’s family would suffer hardship from paying the fine. If the offender fails to comply with the fine option order, the court has the option of revoking the order and reinstating the original fine.

New South Wales has a Fines Act 1996 which consolidated the law relating to fines and infringement notices (called penalty notices in the Act) including enforcement mechanisms.

In respect of reparation and compensation the major provision applying to federal offenders is the reparation power contained in section 21B of the Crimes Act 1914 (Cth). This provides that where a person is convicted of an offence against the law of the Commonwealth or is conditionally discharged without conviction, the court may, in addition to any other sanction, require the offender to make reparation to the Commonwealth or to a federal public authority in respect of the losses suffered or expenses incurred as a consequence of the offence. It may also order the offender to make reparation to individuals who suffer loss as a direct result of the crime. This includes losses and expenses arising out of personal injury. The wording of the section does not limit the order to monetary payments so that acts of restitution could be involved. There is no requirement to take into account the financial circumstances of the offender in determining the amount to be awarded. Under sections 19B and 20(1) compensation can also be ordered where the offender is discharged conditionally without conviction or released conditionally after conviction. Amounts payable under compensation are enforceable in accordance with state law governing the enforcement of fines.

The various states also have legislation authorising court ordered compensation. Section 86 of the Sentencing Act 1991 (Vic), provides that, where there is an application from the victim, the court may order the offender to pay any compensation for the loss, destruction, or damage (not exceeding the value of the property lost, destroyed, or damaged) that the court thinks fit. In determining the amount and method of payment of any compensation order the court may take into account the financial circumstances of the offender and the nature of the burden that its payment will impose. Victoria also has a Victims of Crime Assistance Act 1996 (Vic) which provides state assistance to three categories of victims of acts of violence who have suffered an injury. Courts may order the offender to repay to the state the whole or part of that award (section 87A of Sentencing Act 1991).

In other states there is section 35 of the Penalties and Sentences Act 1992 (Qld) which includes compensation to a person for loss, destruction, damage or interference with property and for personal injury; section 117(2) of the Sentencing Act 1995 (WA); section 71 of the Victims Compensation Act 1996 (NSW); section 53 of the Criminal Law (Sentencing) Act 1988 (SA); section 88 of the Sentencing Act 1995 (NT); and section 68 of the Sentencing Act 1997 (Tas). Unlike the situation in Victoria, the other states do not require an application either from the victim or the prosecutor. In Tasmania, where the victim has suffered injury, loss, destruction or damage, the court must order compensation when the offence is burglary, stealing, or unlawfully injuring property and may order compensation in the case of other offences. Some of the state legislation involves maximum financial levels.

A number of state and federal statutes permit the payment of a monetary penalty in the form of an “on-the-spot” fine to forestall prosecution for an alleged summary offence. Over the past two decades, the process of allowing expiation of guilt by the payment of a fixed infringement penalty as set out in an infringement notice has come to dominate the disposition of minor summary offences, particularly traffic violations. For example, infringement notices calling for the payment of a fixed penalty are allowed to be issued under some 50 Victorian Acts and almost 20 Commonwealth Acts. At least 1,000 summary offences fall into this category.^[103]

In Victoria there is a special enforcement procedure for some categories of on-the-spot fines, known as the PERIN (Penalty Enforcement by Registration of Infringement Notices) system. The unpaid infringement penalty is registered at a special venue of the Magistrates’ Court, known as the PERIN Court. After an extension period has elapsed the amount of the penalty and accrued costs can be enforced in the same way as a judicially imposed fine. If the unpaid infringement notice is not one authorised to be registered with the PERIN Court for enforcement under its procedures, the issuing agency must withdraw the infringement notice, file a charge, and summons the alleged offender to answer it in court at a summary hearing in accordance with the Magistrates’ Court Act 1989 (Vic).^[104]

South Australia has various Acts that provide that certain offences may be expiated following the payment of a fee specified in a standard notice issued to the offender. This is the same as an infringement notice scheme with payment clearing the offence, with no court appearance required, and no criminal conviction recorded against the offender. There is an Expiation of Offences Act 1996 that sets out the procedures for the issuing, payment, and enforcement of expiation notices.

Fines are widely used as criminal sanctions throughout the United States. Although they are not confined to traffic offences (they are nearly the sole penalty for traffic offences) and minor ordinance violations they are seldom used for serious offences. Defendants, sentenced to pay fines, are sentenced to pay amounts set by statute, often involving a range with a minimum and maximum. Despite the fact that fines are routinely assessed against offenders with limited means, courts uniformly report success in collections. High collection rates are associated with strict enforcement policies and payments on instalments.^[105] Generally fines are not used extensively as an alternative to either incarceration or probation. In cases of any discernible seriousness, they are generally used as an add-on to other sanctions, including imprisonment, or as a condition of probation. This contrasts with the use of the fine in Western Europe where it is used extensively as a sole penalty and is widely used as a sanction with repeat offenders.

The revised federal criminal code specifies a number of factors the court must consider in imposing fines, including the nature of the defendant, the seriousness of the crime, and so on. It also requires the court to consider the burden the defendant may face from the imposition of restitution orders. Other factors are included for corporations, such as the size of the organisation, and any action it took to discipline employees responsible for the crime. Some jurisdictions insist that the court assess the ability of the offender to pay before ordering various monetary sanctions. Assessed payments can be delayed pending employment or made payable in small instalments.

More and more offenders are receiving multiple monetary obligations, including costs, surcharges on fines, probation supervision fees (including electronic monitoring fees), and parole fees which can add up to substantial monetary penalties. In the federal system, under the Sentencing Reform Act 1984, offenders are required to pay to the government the full costs of prosecution and of carrying out any sentence imposed. This has implications for the courts use of fines.^[106]

Criminal fines tend to be restricted to the range of less serious offences and rarely stand alone as a sole punishment in more serious cases. The low levels of fine amounts generally imposed on offenders has been seen as the main reason why fines are used relatively rarely as an alternative to incarceration in the United States. There is an emphasis by the judiciary on consistency in sentencing that is interpreted as requiring the same fine amount for all offenders sentenced for the same crime regardless of their individual means. In setting fine amounts, American judges have tended to use fixed going rates (or tariffs) for all offenders charged with the same offence. To ensure that fines imposed are also credible sanctions (i.e. collectible), the courts have tended to set fine rates in accordance with the lowest common denominator of offenders appearing before the courts. Large fines are considered inappropriate because they cannot be applied to the majority of offenders who are poor. This therefore limits the use of the fine to punish and deter. The resulting emphasis on low fixed fine amounts has restricted the range of offences for which judges consider fines to be appropriate to those at the less serious end of the reasonably wide spectrum of crimes for which the fine is a statutorily permissible sanction.^[107]

The United States has been trialling day fines programmes. The VERA Institute of Justice (a correctional reform agency located in New York City) developed in 1988/89 a pilot programme in Staten Island, New York, to deal with misdemeanors. The programme had the backing of judges and prosecutors and was assisted with some federal Justice Department funds. A table set out the number of day fines to be imposed for 71 common offences ranging from 5 to 120 days. Judges then multiplied this number by a daily fine rate which was two-thirds of each offender’s net income less an amount subtracted for dependants. The total fine was limited to a maximum of $1,000 by current state law. The VERA Institute vigorously enforced the fine payments, scheduling instalment payments where necessary, sending out reminder letters, putting charges against property for unpaid fines, and attaching wages. The use of fines and the average fine amount increased. The Bureau of Justice then introduced the concept into the felony caseload of a general jurisdiction court in Maricopa County (Phoenix), Arizona in 1991. In 1992, Connecticut courts implemented day fines in a pilot program in Bridgeport after receiving a grant from the Justice Department. Similar grants were given to start programmes in Iowa and Oregon.^[108]

The United States has not shown much interest in the use of the fine as a prosecutorial diversion device whereby in exchange for paying a fine the criminal charges are dropped.

The federal code gives the government broad power to collect a fine. Interest and penalties are imposed upon the unpaid balance of fines and after a period of 120 days (which has included reminder notices) and a determination of wilful non-payment interest may be imposed on the remaining balance at 1% per month beginning the 31^st day after sentencing for non-payment. Also a penalty sum equal to 10% of the delinquent portion of the fine is charged, subject to waiver for good cause. The fine becomes a charge upon any property belonging to the person fined. Finally, fine defaulters can be sentenced to jail if non-payment is found to be wilful or if “in light of the nature of the offence and the characteristics of the person, alternatives to imprisonment are not adequate to serve the purposes of punishment and deterrence”. Wilful defaulters can be sentenced to pay a fine up to twice the unpaid balance or $10,000, whichever is greater, or imprisoned for not more than 1 year, or both.^[109]

All jurisdictions must examine the offender’s ability to pay before punishing him or her for non-payment. In 1971 the United States Supreme Court in Tate v Short prohibited the incarceration of indigent offenders for their non-wilful failure to pay fines. Prior to this case non-payment of fines was a major cause of imprisonment in the United States. In 1983 the Supreme Court extended the principle in Tate to cover unpaid restitution by indigent defendants (Bearden v Georgia). It ruled that to revoke automatically a defaulter’s probation and imprison him due to his inability to pay a fine or restitution was unconstitutional. This did not include cases involving wilful non-payment. Some appellate courts have put the onus squarely on the offender to prove an inability to pay. The Court ruled, however, that courts were not helpless in enforcing payment and could order community service. One state (Kansas) has enacted a statute that provided that unpaid fines and restitution may be converted to day fines to be worked off as community service.^[110]

A 1984 amendment to the federal code provided that a court may order, in addition to the sentence imposed, that the offender make restitution to any victim of the offence.^[111] It also provides that the offender be ordered to provide restitution as a condition of probation. The latter is mandatory for felons if the court does not mandate the performance of community service or payment of a fine. A restitution order is defined, in cases of property damage or loss, as return of the property or payment of an amount equal to the value of the property on the date of its destruction, loss or damage, or its value at the time of sentencing, whichever is greater, less the value of any property returned. In cases of bodily injury, it calls for payment in amount equal to the necessary medical or other professional services and devices relating to physical, psychiatric, and psychological care, including non-medical care and treatment according to a method of healing recognised by the law of the place of treatment. It also calls for payment for physical and occupational therapy and reimbursement for victim income lost as a result of the offence. (The courts have ruled that restitution may not be ordered for pain, suffering or mental anguish.) A restitution order is also to involve, in cases resulting in a victim’s death, payment for funeral and related expenses to the victim’s estate. The sentencing court has a statutory obligation to consider the offender’s ability to pay in determining whether restitution should be ordered and whether payment should be in full or in part.

The code allows the offender, with the victim’s consent, to make restitution in services or make restitution to a person or organisation designated by the victim or the estate in lieu of paying money directly to the victim or the victim’s estate. Restitution is due at the end of the probationary period, 5 years after the end of a term of imprisonment, or 5 years from the date of sentencing, if not ordered to be paid immediately or pursuant to an instalment plan established by the court. Since 1994 the federal code has provided for mandatory restitution for specific crimes such as certain crimes against women. In respect to the latter, restitution includes costs incurred in obtaining a protection order and costs of temporary housing and child care. In these mandatory cases the court is directed to ignore the economic circumstances of the offender except to the extent of determining the manner in which, and the schedule according to which, the restitution is to be paid.

In cases of offenders who refuse to pay restitution, federal agencies are required to suspend immediately all federal benefits provided by the agency to the offender, and to terminate his or her eligibility for those benefits upon receipt of a judicial finding that the offender is delinquent in paying the restitution that had been ordered.

State restitution laws vary but as a rule are not as comprehensive as the federal laws. In regard to who may receive restitution most state laws simply refer to aggrieved parties or victims of the offence. State courts have differed over whether indirect victims such as insurance companies, medical facilities, police, drug enforcement agencies, and fire departments are eligible. Some statutes specifically authorise restitution to be awarded to dependants in homicide cases. Where the law is silent, state appellate courts have differed from each other, although where dependants have not qualified, restitution can still be imposed for funeral and burial expenses.

Most state laws limit restitution to “specific”, “actual”, “liquidated”, or “easily ascertainable” losses. Several states limit restitution to property damage, some add medical costs, but most simply refer to “economic” loss. Pain and suffering and punitive damages recoverable in civil actions are generally excluded. Although restitution may not be ordered for complaints that are dismissed or on which the defendant is acquitted there are a number of exceptions, such as when the defendant has agreed to pay restitution for these charges as part of a plea bargaining arrangement involving pleading guilty to lesser offences. In determining restitution orders the court must consider the offender’s ability to pay. Some state statutes and appellate courts require the court to examine an offender’s resources prior to the imposition of an order. Even if the offender is indigent at the time of sentencing some appellate courts have allowed the courts to base an order on future earnings.

To determine the amount of restitution the courts generally rely on three methods. There is judicial fiat which describes a judge basing the amount on courtroom testimony, the plea agreement, the pre-sentence report, victim statements and the like (not forgetting consideration of the offender’s finances). The second method is to base it on the victim’s insurance claim or bills relating to the cleanup, repair or replacement of property, or medical treatment. The third method involves victim/offender meetings outside of the court to work out an agreed amount which is then ratified by the judge.

There are many variations in current United States law in respect of parking and moving vehicle offences. Some jurisdictions still regard all traffic offences as crimes to be prosecuted before a criminal court. This may mean the defendant has the full range of procedural rights and protections that apply in any other criminal prosecution although these have usually been attenuated in parking and minor traffic offences. Various jurisdictions have “traffic tickets” which are actually a summons to court but which invite the defendant to plead guilty and waive the right to trial by marking and signing an appropriate box. The offence is punished by a fixed fine which the offender has to pay with costs on admitting guilt. The matter is processed by clerks, without the parties being present, in what are known as Traffic Violation Bureaux, although a judicial adjudication is available if a plea of not-guilty is entered. This procedure does not usually extend to traffic violations contributing to accidents or serious collisions, or drink driving, reckless driving, leaving the scene of an accident, or driving while disqualified.

Another approach has been to remove traffic offences from the criminal prosecution altogether. This has happened in at least 11 jurisdictions in the United States following the example of Michigan in 1979. Traffic violations become civil matters with the plaintiff being the state or local government agency issuing the traffic citation and the motorist admitting or denying liability rather than pleading guilty or not guilty. Failure to comply with the court’s judgment in these civil cases may lead to suspension of the driver’s licence or motor vehicle registration, enforcement against the property or assets of the offender, or civil contempt proceedings.

A third approach to breaches of parking and traffic laws has been to remove some of them entirely from the courts to an administrative agency (shifting them from the judicial to the executive arm of government), effectively decriminalising such traffic infringements (no criminal convictions). The courts have upheld these new forms of administrative adjudication so long as the administrative agency cannot impose custodial sanctions and observes certain minimum due process rights. These include an impartial tribunal, notice of charges, notice of hearing and the obligation to receive submissions by or on behalf of the motorist. The administrative agency must also apply a penalty defined in advance by the legislature and not one left over to the agency itself. A review or appeal process must be provided.

The New York Department of Transportation’s Parking Violations Bureau, set up in 1970, was the country’s first administrative tribunal designed expressly to deal with the enforcement of parking infringements. There is also the Department of Motor Vehicles’ Traffic Violations Bureau to deal with minor moving traffic infractions. These organisations operate an offence enforcement notice procedure. The notice is a summons which specifies the “scheduled fine” prescribed for the particular violation. It invites the motorist to admit liability by paying the amount specified to the Bureau within 7 days. If the driver does not admit liability, he or she may appear in person, without an appointment, at an “Adjudication Centre” for a “walk-in hearing”. The person is invited to bring the summons, witnesses, photographs, and other evidence so that the matter can be considered by Hearing Officers. Their decisions are subject to review by an Administrative Appeals Board within the Department. Failure to respond to the summons within 7 days leads to increased penalties and a civil default judgment under the local vehicle and traffic law. A 30 days notice of an impending default judgment is given. If there are unsatisfied judgments on 3 or more summonses issued within an 18 month period, the person is registered with the office of the Commissioner of Motor Vehicles which will effectively prevent the person from renewing or transferring his or her vehicle registration (the Department has computerised records of vehicle registrations). Unpaid parking and motoring fines are assigned to debt collection agencies. Sanctions include seizing personal property, including motor vehicles clamped or impounded, orders on bank accounts, mandatory wage deductions, and denying renewal of vehicle registrations. Reports indicate that there are a large number of registration renewals deferred each month because of undischarged traffic violations, and also large numbers of offenders driving unregistered vehicles, switching number plates, and changing their vehicle registration to that of another state. There are the usual difficulties of locating offenders, serving warrants, and enforcing payment. Imprisonment is not used as a sanction for parking violations. It may be a final resort sanction for traffic offences but this is limited by the Tate v Short ruling (above).^[112]

In Canada the power to impose fines is set out in the Criminal Code (Part XXIII). Except where an offence is punishable by a minimum term of imprisonment a court may, in addition to or in lieu of any other sanction that the court is authorised to impose, fine the offender, provided it is satisfied that the offender is able to pay the fine or discharge it by way of a work programme (in provinces where such programmes exist) (sections 734(1) and (2)).

When a fine is ordered, the judge defines a specific period to give the person time to raise the money, called “time to pay”. At the same time the judge pronounces a term of imprisonment that the offender could serve if he or she does not pay the fine. A formula for determining the number of days imprisonment is spelled out in section 734(5) subject to the qualification that the period should never be longer than the prison sentence that would have been given in the first place. It takes into account the costs and charges of committing and conveying the defaulter to prison. In 1992/93, 35% of provincial prison admissions were for fine default, ranging from 14% in Newfoundland to 44% in Quebec.^[113]

A number of provincial governments (Nova Scotia, New Brunswick, Quebec, Saskatchewan, and Alberta) have established fine option programmes to enable offenders to work off a fine rather than pay it. The offender works in the community, perhaps cleaning up parks or washing police cars. Each hour of work earns a credit towards the payment of the fine. This work can be spread over time, but is not to exceed two years (section 736). These programmes were developed as a way of reducing the use of imprisonment for fine defaulters.

Besides the threat of imprisonment the Criminal Code enables provincial and federal governments to refuse to issue or renew any licence or permit until the fine is paid (section 734.5). Defaulters wanting a driver’s licence will have to pay their fines first. In 1996 Saskatchewan was set to be the first province to implement such a system. Also, the government may use the civil courts to recover the money (and the additional costs of taking this step). This could involve the offender having his or her wages garnisheed.

A judge cannot issue a warrant of committal for fine default unless satisfied that the above two options (barring licence renewal and undertaking civil proceedings) are not appropriate or that “the offender has, without reasonable excuse, refused to pay the fine” or refused to participate in a fine option programme (section 734.7(1)). Once in prison the defaulter can pay part or all of the fine to reduce the term. A partial payment will reduce the period of imprisonment on a pro rata basis, as long as the amount of money is large enough to secure a reduction of at least one day. Those who do not pay and serve the in-lieu-of-period in prison are considered to have discharged the fine.

The Criminal Code makes provision for a victim fine surcharge in addition to any other punishment or a discharge. The amount of the surcharge can be up to 15% of any fine that is imposed on the offender, or where there is no fine a sum up to $10,000 (although there is provision for a lesser maximum to be prescribed in regulations). The surcharge is to be imposed in all cases unless the offender establishes to the satisfaction of the court that undue hardship to the offender or his or her dependants would result. Where the court does not make an order it must provide reasons in writing as part of the official record of proceedings (section 737). The surcharge is not a sentence in its own right and is always ordered in addition to another disposition. The money is not paid to the victim but goes into a provincial fund to pay for victim services. Some provinces also collect the victim fine surcharge for provincial offences (quasi-criminal offences like violations of drinking laws or speeding) such as about 10% of the fine or a flat fee of $20.^[114]

In cases where a victim has had property that has been stolen or damaged the court may order the offender to pay restitution of an amount not exceeding the replacement value of the property less the value of any property returned. In the case of a victim suffering bodily harm the court may order the offender to pay an amount not exceeding all pecuniary damages, including loss of income or support incurred as a result of the harm. Where there has been bodily harm or the threat of bodily harm to the offender’s spouse or child or other person who is a member of the offender’s household, the court may in addition order an amount not exceeding actual and reasonable expenses incurred by the person as a result of moving out of the offender’s house, such as temporary housing, food, child care, and transportation (section 738). An order of restitution takes priority over a fine where the offender does not have the ability to pay both. Where restitution is not paid the victim may institute civil proceedings against the offender. One source states that few offenders are able to pay restitution and the enforcement of restitution orders has, historically, never been very successful.^[115]

As an aside it is noted that victims of crime who suffer personal injury are not dependent on the courts sentencing the offenders in order to obtain compensation. They can apply for financial compensation from the government to cover expenses directly related to the crime. To qualify, victims must report the offence to the police, co-operate with the investigation, and apply for compensation promptly. It does not matter if charges are not laid or if an offender is not identified. Applicants are only required to prove on the balance of probabilities that they have been victimised, so an applicant may still qualify even if an offender is acquitted. Payments are made by boards like the Criminal Injuries Compensation Boards in New Brunswick and Ontario. A compensation programme is available in all jurisdictions except Newfoundland and Yukon. The following features common to the systems are:

Canada has enacted a Contraventions Act 1992 which provides for a simplified enforcement procedure (separate from the procedure in the Criminal Code) to deal with offences that are regulatory rather than criminal offences. The legislation provides for a ticketing system for nominated minor regulatory offences (termed “contraventions”) which are partially decriminalised. Whether offences are regulatory or criminal is indicated by regulations. Tickets for individuals (which must be issued to the alleged offender within 30 days of the contravention) must be served personally or in the case of parking contraventions may be served by affixing them to the offending vehicle. Payment of the amount stated on the ticket involves a conviction for a contravention but the Act expressly states that it is not a conviction for a criminal offence and does not constitute an offence for the purposes of the Criminal Records Act. It is not to be regarded as a conviction of an offence for the purpose of incurring certain disabilities under federal law relating to employment in government or the armed forces. However, former contraventions can be taken into account if the regulations make provision for higher penalties for repeated contraventions and the enforcement agencies maintain the necessary records.

The defendant still has right of access to the courts to make representations to fix a lower fine, or extend the time to pay (normally 30 days), or to obtain a hearing and determination if the allegation is disputed. The Act allows for regulations to define the fine applicable if the offence is dealt with as a contravention and allows for that penalty to vary according to whether the matter is disposed of at the ticket stage or continues to court. However, the penalty cannot be below the minimum fine prescribed by the enactment which created the offence, or be higher than the statutory maximum.

Fines imposed under the Act are due within 30 days of service of the ticket, but may be discharged over a longer period by periodic payments, or by community service. Imprisonment in default of payment may be ordered for those who have the means to pay the fine, but wilfully refuse to do so.

Germany operates a day fine system. The number of days that the fine relates to ranges from 5 to 360, with exceptions up to 720 (according to the seriousness of the offence). The amount applied to each day ranges from 2 DM to 10,000 DM (according to the circumstances and financial conditions of the offender). The German Criminal Code requires that day fines should have priority over short-term imprisonment (of less than 6 months) with rare exceptions. On default, imprisonment can be imposed (with the number of days imprisonment equalling the number of fine units) or, since 1974, community service (6 hours for every one unit). Under particular circumstances the court may caution the offender and postpone the imposition of a day fine. Day fines can be imposed at a court hearing or, following an application by the prosecutor, through a written penal order mailed to the defendant (who is entitled to appeal).^[117]

For minor offences (misdemeanours), German law has provided the option of conditional dismissal since 1975. According to section 153a of the Code of Criminal Procedure, the public prosecutor^[118] can “invite” a suspect to pay a sum of money to the state, the victim, or a charitable organisation in exchange for dismissal of the criminal prosecution. If the charges are at the more serious level the prosecutor must present the proposed settlement to the court for approval (which is seldom withheld). Conditional dismissal can also occur after indictment before or during the trial, when the court can dismiss the case under the same conditions as the prosecutor could before trial. The procedure does not require a formal admission of guilt nor involve a criminal conviction, but the defendant must pay a sum of money roughly equivalent to the fine that might have been imposed following a conviction. The use of this procedural option has greatly increased since its inception. Prosecutors and courts employ it not only in petty cases (traffic offences, shop lifting, and other petty property offences) but also for sanctioning fairly serious, especially white-collar, offences, without trial. Under German law aggravated assault, fraud, extortion, and most economical and environmental offences are classified as misdemeanours and thus are eligible for conditional dismissal. From March 1993 conditional dismissal has been possible in all misdemeanour cases unless the defendant’s blameworthiness is so serious as to preclude a disposition without trial. Most of the payments are to the state or to a charitable organisation with only a very small percentage being victim compensation.^[119]

An order to pay money to the state or to a charitable organisation, or restitution to the victim can also be imposed as part of a suspended custodial sentence (for prison terms of up to two years).^[120]

The following two chapters discuss some issues with, or possible new approaches to, the present system of infringement fees, fines, and reparation. There are no recommended policy changes being put forward but a number of scenarios to indicate the potential range of changes that could be implemented, which have advantages and disadvantages.

The infringement notice is an alternative means of dealing with particular offences that are deemed to be minor^[121] by having a fixed financial penalty for, and removing the criminal status of, each of those offences. There are a limited number of Acts which provide for the issue of infringement notices, including the Land Transport Act 1998, the Transport Act 1962, the Litter Act 1979, the Weights and Measures Act 1987, the Civil Aviation Act 1990, and the Biosecurity Act 1993. In practice the infringement notice procedure is mostly used for minor traffic offences.

With a continuing increase in the caseload of the courts it can be argued that it is important that the formal court process and trial in criminal cases should be limited to cases where it is justified by the importance of the issue. The Law Commission in their 1997 Discussion Paper on Criminal Prosecution considered a good case existed for extending the infringement notice system to cover more less serious offences.^[122] The Police also see distinct advantages in enlarging the system, since it would allow a large number of technical breaches of the law to be disposed of expeditiously without the need for summons and arrest procedures. This would produce significant savings in terms of resources and Police staff time.^[123]

The key issue is whether as a matter of policy the state should continue to deal with less serious offences within the criminal jurisdiction but extend the number of them dealt with through the infringement notice procedure so that they do not involve convictions and criminal records. This is not the same as legalising offences. The offences within the infringement notice scheme remain offences. The scheme is an alternative procedural method of disposing of these offences other than by bringing the full weight of the criminal process to bear upon the offender.

(1) Prosecution for offences that are considered minor by a large proportion of society has the ability to bring the law into disrepute. This is because it is likely to debase the idea of criminality itself and reduce public confidence in the fairness of the police and the courts.

(2) The costs involved in prosecuting a large number of less serious offences are significant. The infringement notice scheme may be a highly cost-effective mechanism for keeping less serious offences out of the usual court processes. The prosecution and court systems would be saved costs by having to process a reduced volume of cases. From the police point of view it is much more efficient to deal with an offence by way of notice than by way of prosecution. A notice can be completed in moments at a crime scene and, unless a hearing in respect of the offence is requested, it forms the basis of all subsequent action in respect of the case. In contrast, a prosecution file represents a considerable amount of paperwork by the officer in charge of the case and others. Although a hearing can be requested in respect of any offence for which an infringement notice is issued, the likely outcome of any extensions to the infringement notice system would be fewer court appearances.^[124]

(3) There could be cost-savings made that would free the courts and the prosecution to focus more effectively on more serious forms of crime. There would also be increased revenue for central and local government. This is based on the assumption that most infringements continue to be paid without enforcement action by the courts being necessary.

(4) While the sanction for the offence still remains a deterrent, the cost to the individual of carrying a conviction for what many deem to be a relatively minor offence is avoided.

(5) Reducing the reliance on the formal criminal justice system and using alternative ways to deal with less serious offences may encourage, or even provide, resources to apply more effective strategies in other fields (such as health or education) to reduce the incidence of those offences.^[125] For instance, it is possible that having criminal penalties for all cannabis offences may reduce the potential for harm reduction and public health strategies to be effective.^[126]

One view is that the application of an infringement fee to any particular offence, thereby removing its criminal status, may lessen the seriousness with which that offence is publicly regarded. Therefore a fixed penalty system is only appropriate for offences of a mainly technical nature and of such triviality that the prospect of repeated offences without conviction can be accepted with equanimity.

Another view on the limits of the infringement notice system is that, as it involves a standard fine for all examples of the offence, it is not appropriate for offences that might involve significant variations in degrees of culpability.

A possible issue arises from the situation that police powers of arrest and search are attendant only on imprisonable offences (and therefore not available for infringement offences). The police would lose those powers in respect of any imprisonable offences that became infringement offences (e.g. some drug offences). This may be a restraint on the extension of the infringement system as the arrest and search powers enable police to use minor offenders to follow up on more serious offending. The alternative view is that this need not be a restraint and that if, for example, police suspect offenders of more serious drug charges, such as supply, these can be investigated through the normal channels for those charges without there being a need to arrest offenders for more minor possession charges. The Law Commission’s view was that the infringement notice procedure should be reserved for non-imprisonable offences.

(1) Difficulties in enforcing infringement penalties. It is already the case that the majority of fines enforcement cases coming before the District Court are the result of unpaid infringement fees. Any moves to extend the number of infringement offences notices issued, or the range of eligible offences (to include offences currently being prosecuted by way of arrest, summons, or offence notice) have the potential to increase the level of unpaid infringements and consequently the costs of fines enforcement. The extent of this would depend on the actual increase in the volume of infringement notices issued and the rate of compliance with infringement notices by the new categories of offenders receiving them.^[127]

(2) The ease with which infringement notices can be issued makes it likely that, in the absence of other controls, they may be used when previously no action, a caution, or a warning without further action would have been the official response. This is the net-widening effect that could be expected when a major disincentive for formal legal intervention (the time and clerical work involved in a court prosecution) in respect of certain behaviour is removed.

(3) The deterrent force of the law may be reduced when matters are dealt with administratively rather than judicially. Because offences are not recorded as part of a criminal record, the social opprobrium associated with the offence is zero.

(4) Many infringement fees are currently set at a very high level relative to court-imposed fines (which can be adjusted downwards to take into account the means of the offender). For example some infringement fees for technical breaches of the Land Transport Act are the equivalent of fines for dangerous or careless driving. This is often to ensure that commercial operators do not gain commercial advantage through deliberate law-breaking. There is the possibility that the fixed monetary penalty imposed by the infringement notice may be higher than what the court would usually impose for the same offence (if it was taken to a hearing) because the court will take into account the offender’s means which the infringement fee does not do.^[128] These discrepancies would be heightened by any extensions to the infringement fee system because any extension would result in a lowering of the percentage of cases in which an offender’s means is taken into account. The problems arising from this inconsistency are the basis for previous judicial opposition to the scheme.

(5) There is no ability to assess individually the defendant’s degree of culpability or their financial means to pay a fine.

Recent initiatives in Australia and Canada have seen the expansion of infringement notice schemes to cover a wider range of offences, including offences traditionally seen to be of a more criminal than regulatory nature. Since 1986 police in South Australia have had the discretion to issue an expiation (infringement) notice instead of prosecuting for possession of small amounts of cannabis or growing a small number of cannabis plants (amendment to the Controlled Substances Act 1984). The Expiation of Offences Act 1987 (SA) extended expiation notices to offences under a further 18 Acts. In Canada the Contraventions Act 1992 created a ticketing system for minor regulatory offences.

A variation on extending the current infringement scheme (which involves no criminal record for the offender) to more offences is to have an extended infringement notice scheme that is tiered so that:

The difficulty with this model is that for some offences it gives the police a criminal conviction power which has, for sound reasons, been the constitutional prerogative of the judiciary. It is also a major departure from the concept of decriminalisation which underpins the concept of infringements. There would also be a need to be very sure that the offender was correctly identified.

The demand for a new class of offence has often focused upon parking and motoring offences. To have any real impact on the court system, however, any extension would probably need to cover high volume offences such as minor cannabis use offences, behaviour offences, and a greater range of liquor offences.

As to how a ‘minor’ offence should be defined in legislation, the literature has usually pointed to those offences that carry a fine only as a maximum penalty. Offences that carry a maximum prison term of up to six months have also featured in discussions on the definition of offences as minor.

If extension of infringement fees to further offences is likely to cause enforcement problems (in part because the fixed amounts may be higher), the solution might be to give prosecuting authorities issuing infringement notices further powers similar to some of those exercised by the court under Part III of the Summary Proceedings Act. There has already been the 1998 amendment which provided for extending time for payment and allowing payment by instalments of infringement fees. This could be extended to making attachments on salaries and wages and deductions from bank accounts.

The above discussion raises a number of issues for policy development in this area. They include:

(1) What degree of criminal law processes, and all that these involve, are appropriate to deal with less serious offences?

(2) Could the use of infringement notice procedures for more offences still retain the safeguards afforded by prosecution in the criminal courts for those people affected?

(3) What controls should be built into the system to ensure that wider use of the infringement notice regime does not simply delay entry to the court system through non-payment?

(4) What controls should be built into the system to prevent net-widening?

(5) What degree of public support would such a proposal have?

Currently there is minimal guidance as to how and to what extent the offender’s means should be taken into account when the court is considering the imposition of a fine. Consequently, the courts are limited in the extent to which the means of the offender affect the amount of the fine. This affects the ability of fines to be fairly adjusted to the individual circumstances of the offender and may discourage the use of fines for those on very low or very high incomes.

The unit fines system is a different concept of fining, with the seriousness of an offence to society no longer expressed by the dollar value of the fine but as a period of time when an offender must make a financial sacrifice. The unit fine approach requires the court to consider two distinct components separately. First, the seriousness of the offence, expressed as a number of units (of time) during which an offender must make a financial sacrifice, is assessed. Secondly, the means of the offender is assessed, usually from the discretionary income available to the offender (income adjusted for cost of living, dependants, and other allowances). The monetary amount of the fine is figured by multiplying the number of fine units by the selected portion of the offender’s income. Not only will the fine amount reduce if the offender has limited means, it will increase if the offender is well-off.

Supporters of the unit fines system argue first and foremost that it facilitates a just and fair approach to punishment in line with the principle of equal impact on offenders.

They also argue that unit fines:

Day fines (when the value of the fine units is based on a portion of daily income) were a Scandanavian innovation. Finland introduced a day-fine system in 1921, Sweden in 1931 and Denmark in 1939. They now operate in a variety of countries such as Germany (since 1975 in West Germany), Austria (since 1975), Hungary, Poland, France (since 1983), and Portugal (since 1983).^[130] In the United States a trial day fine system was instituted in a lower court in Richmond County (Staten Island), New York in 1988^[131] and subsequently in Phoenix, Arizona. Day fines schemes (usually called structured fines in the United States) have since been applied in other jurisdictions or are being developed.

The day fines system in Sweden applies to all offences with fines as the maximum penalty and to some offences punishable by a fine or up to 6 months imprisonment. A maximum of 120 day fines is permissible for one offence and a 180 day fine overall maximum if more than one fine is imposed concurrently. Day fine amounts range from 2 to 500 kroner per day, although the lowest fine permissible is 10 kroner. The method for calculating the number of day fine units is set out in circular from the chief public prosecutor. Day fine amounts are calculated on the basis of one-thousandth of gross annual income (or about one-fourth of total daily income). Responsibilities for dependants and non-earning spouses, and taxes and significant debts or assets are taken into account in calculating disposable income that determines the final amount of the day fine unit. The offender is also able to claim deductions for other financial liabilities such as hire purchase commitments. Information on means is included in offender statements to the police or court and they can be readily cross-checked against the records of individuals’ income and property held by the tax authorities.

In Sweden the valuation of the day fine unit is less onerous for the offender than was the case with West Germany where each day fine unit was valued at or near the offender’s net daily take-home pay. This was because in Germany unit fines were introduced mainly as an alternative to short-term imprisonment, whereas the Swedish model is mainly focused on achieving an equitable way of using fines when prison would not normally be used. The German unit fines do not apply to routine motoring offences. Fines are used for most offenders convicted of property crimes, and for a substantial proportion of those convicted of assault. The value of a day fine unit may vary between DM 2 and DM 10,000 (or $1.30 and $6,700) and the number of day fine units varies with the seriousness of the offence from 5 to 360.^[132]

A unit fine system was trialled in four courts in England and Wales between 1988 and 1990, with the unit being a week rather than a day. At the end of the trial (which had no special legislative authority) all four participating courts elected to continue unit fines. The pilots were not a comprehensive test of the day fine system because the legislation under which they operated only permitted fines to be reduced to take account of the lack of means of an offender and did not allow fines to be increased for the better-off. The British Government subsequently provided a legislative framework for unit fines (which allowed courts to impose larger fines on the affluent) in sections 19 to 23 of the Criminal Justice Act 1991 and the Magistrates’ Courts (Unit Fines) Rules 1992, and the system entered into force on 1 October 1992.

The system applied only in the magistrates’ courts to offences committed by individuals. It provided for up to 50 units to be imposed (that is, 50 weeks or one year) depending on the seriousness of the offence and provided for each unit to be valued at between £4 and £100 depending on the net income of the offender. Thus it was possible for the fine amount for a 50 unit offence to be £200 if the minimum unit of £4 applied and to reach £5,000 (the maximum allowed under the scale) if the maximum rate was applied. This was higher than the range of between £3 and £20 (which meant a maximum fine of £2,000) that applied with the pilot schemes.

In arriving at a value for each unit, every court established local standard allowances for basic living (food, housing, heating, a community charge, clothing, and travel to work) which were deducted from the net income of the offender, with discretion to amend this figure to take account of “exceptional” expenditure. There were also allowances for dependant spouses, partners, and children. The resulting figure divided by 3 became the “disposable income” figure used to value each unit, up to the maximum of £100.

In May 1993 the scheme was scrapped and the relevant legislation repealed by the 1993 Amendment Act.^[133] Its abandonment seems to have been as a result of widespread media criticism of apparently very high fines being imposed for minor offences. Part of the difficulty was that the media were reluctant to acknowledge the rationale of equal impact between offenders of different means, and criticised different fines for similar offences committed by rich and poor individuals as though they were grotesque aberrations, rather than the result that the legislation had been intended to achieve.^[134] Even so, it was difficult to view the sheer size of the increase in fines for the better-off offenders as good justice in some cases This arose because of constraints in the wording of the Act and the increase in the upper limit of the daily monetary unit from that which applied in the pilots. The unit value was assessed as one-third of the residual income after taking account of allowances but if there were few allowances to set against income the maximum £100 unit value could be reached on relatively modest incomes. People on a variety of middle-range incomes were pushed fairly quickly towards the top level of £100 since fixed allowances more suited to a lower income level/standard of living had been set by the bench.^[135] There also developed a tendency for the maximum unit value to be applied in the absence of proper means information, although sentencers had the discretion to impose whatever value they thought reasonable in such cases. Many of the highly publicised inappropriate fines had been imposed on offenders who had refused to fill in the means form, and therefore had been subject to the maximum unit value. These were reduced on appeal, but because the same media coverage did not accompany these adjustments, the harmful publicity could not be undone. A notorious example was a fine of £1,200 for discarding a crisp packet on the ground instead of placing it in a litter bin (the offender also refused to pick the litter up and was cheeky to the policeman who was on the scene). The unit value had been fixed at £100 after the offender failed to provide any means information. This fine was subsequently reduced to £48 or 12 units at £4 when evidence was produced that the offender was unemployed.

There was also the discrepancy between fixed penalties and the unit fines that could be imposed if the fixed penalty offence was taken to court. The legislation provided for the unit fine to be increased to the level of a fixed penalty (presumably so poor offenders would not have an incentive to take trivial cases to court) but there was no corresponding power to reduce the fine to the level of the fixed penalty. An example of the sort of anomaly that could arise, which received publicity, was when a fine of £500 was imposed for illegal parking on an individual whose car had broken down on a road where parking was prohibited. The defendant had exercised his right to take the case to court rather than pay the infringement fee by mail, because he thought he had a legitimate defence. A faulty means assessment resulted in the maximum £100 unit rate being set. The resulting fine, according to press coverage, represented twice the value of the car. On appeal the fine was reduced to the level of the fixed penalty.^[136]

One commentary, attempting to explain the downfall of the unit fine, suggested that there was perhaps insufficient attention paid to sentencing judges’ reluctance to increase fines for richer offenders. Old attitudes of charitable munificence towards the poor (which accounted for the initial welcome of unit fines during the pilots, which only involved reducing fines for poorer people) were misinterpreted by policy-makers as a willingness to embrace the principles of “equality of impact” implied by unit fines. Central to the failure of unit fines was the perception of sentencing judges that their discretion in the area of fines was being eroded. According to one unpublished study, magistrates felt that the old system had worked well, that they had not been consulted about the new system, and that it created insuperable problems. They found it difficult to think in units and remained wedded to the notion of “set worth”. The magistrates saw certain crimes as being worth certain amounts of money irrespective of who the offender was. Double parking was worth so many pounds and no more regardless of how much the offender earned. A few magistrates actually resigned because they felt they were being forced to adhere to rigid rules which resulted in unfair penalties. The point was also made that this early reaction of judges and the technical difficulties regarding the maximum sums to be attached to units (discussed above) could have been viewed as “teething problems” (and presumably could have been relatively easily corrected), so that the fact that the whole system was abandoned in less than a year suggested a lack of political commitment.^[137]

One of the lessons of the English experience is that if the range of the unit values is too wide, the amount of the fine is influenced much more by the assessment of means than by offence seriousness. This can bring about small fines for relatively serious matters and large fines for minor offences. The extent of this uneasy contrast will also be dependent on the range of minor offences included in the scheme.

Another lesson is that anomalies may arise between offences with fixed penalties and minor offences subject to unit fines. The infringement offence procedure does not lend itself to be included in a unit fines scheme (that is for fees to be adjusted according to the offenders’ income). The fundamental basis of the infringement procedure are fixed fees which ensure that defendants know with certainty, at the outset, the amount of the fine to be imposed.

The English unit fine system also illustrated the potential administrative problems of getting accurate and timely information on offenders’ financial circumstances in order to be able to base fines on their discretionary income. In general it showed the need to have rules that achieve consistency but that are not so mechanistic, rigid, and non-discretionary that sentencers are too often faced with the dilemma of either breaking the rules or imposing sentences they consider are unfair.

In New Zealand unit fines were considered by the Penal Policy Review Committee 1981. Their report commented that a unit fine system such as the Swedish one required an accurate and independent check of the offender’s income which was not available in New Zealand. Because of this and the complexity of the Swedish system, the committee considered such a system unsuitable for our conditions. Some members of the committee were strongly opposed to the upward adjustment of fines for wealthier offenders.^[138]

In April 1994 government agreed that a pilot of time fines (based on a unit fines system) proceed to allow assessment of the fiscal impact of such a scheme, the implications for efficient case flow management in the courts, and the general acceptability of time fines.^[139] The Department of Justice was directed to develop the proposal further following consultation and report back. New Zealand officials had studied the operation of the unit fines scheme in England and Wales and set out to avoid its shortcomings. In particular the proposed scheme retained flexibility for the courts and avoided the rigid application of a formula that in the UK led to such variation among fines for offences of the same seriousness depending on the income of the offender.

The proposed scheme would have required the court, having reached the decision that a fine was the appropriate sentence, to:

It was argued that the scheme had the capacity to increase the use of fines in preference to the more costly community-based sentences and so assist with racheting down of sentence types and levels, although the fiscal impact was uncertain because of the range of variables involved (sentencing practice, administrative costs of new procedures, payment patterns). For this reason a trial of the scheme was recommended in order to test these variables. Further work was to be undertaken on minimum and maximum dollar amounts to be applied to the number of weeks, how ‘income’ would be assessed, and the procedures involved. Legislative amendments (to the Criminal Justice Act and Summary Proceedings Act) were also a requirement.

In November 1994 officials reported back with the information that both the judiciary and the Law Commission had reservations about the proposal for a time fines scheme. The problem of major concern that they raised was that many infringement fees are currently set at a very high level relative to court-imposed fines and that a time fines scheme would exacerbate those inconsistencies. Officials suggested that work on time fines be put on hold and government agreed.^[140] In August 1995 government agreed that no further work would be undertaken by officials on the development of a time fine system.^[141]

Arguments against the adoption of a day/unit fine system include:

The New South Wales Law Reform Commission in its 1996 report on sentencing concluded that that a day-fine system should not be introduced in that state. It submitted that the day fine placed too great a restriction on the discretion of the court to impose the sentence that is most appropriate given all the circumstances of the individual case. Also that it might prove too complex and consequently unworkable in practice, and that it may be too time-consuming for courts to make an accurate assessment of the offender’s financial means. Submissions to the Commission mentioned problems that would arise in trying to formulate a scheme to take account of those who were asset-rich but income-poor.^[142]

In order to address the above concerns the following issues would need to be resolved prior to the introduction of a unit fines system:

There is no doubt that the unit/time fines concept has been given a bad press by the failure of the unit fines experiment in England and Wales (although the preceding pilots had worked satisfactorily). This failure seems to have overshadowed the consideration that they continue to operate in a number of European countries, which have as a result been able to make greater use of the fine as a sanction than is the case in New Zealand.

Even more so than with other sentences, there is currently very little legislative or other guidance for the courts to assist them when they are considering whether or not to impose a fine rather than another penalty (particularly a community-based sentence) or in addition to another penalty and when they are settling on the particular amount of a fine within the maximum. This may result in sentencing inconsistencies in view of the large number of offences which can result in a fine, although this is extremely difficult to establish since there are likely to be wide variations in the financial means and responsibilities of offenders. There is probably insufficient encouragement to use the sentence of a fine in all appropriate circumstances.

Sentencing guidelines could encourage greater use of the fine as the principal sentence, particularly as an alternative to community-based sentences. These guidelines could both create a presumption in favour of fines for a wide range of offences and provide for fines to be either increased or decreased depending on the means of the offenders (so that they can be punitive for offenders irrespective of their wealth).

There could be a sentencing provision that establishes a presumption against imposing prison sentences of 6 months or less and that where a sentence of imprisonment of more than 6 months is not justified a fine is to be preferred over a community-based sentence. The previous criminal history of the offender would need to be made relevant to this decision. An opposing view might say that this would include people who would presently be regarded as serious offenders (particularly with regard to the extent of their criminal record) and a fine would not be sufficient condemnation of their offending. An attendant risk with this proposal is that it could lead to more sentences of greater than 6 months imprisonment in instances where previously there would have been sentences of less than 6 months imprisonment. This proposal would reduce the number of offenders receiving sentences of imprisonment that are served by way of home detention.

A more general guideline could be along the lines that in every case where an offender is convicted of an offence punishable by imprisonment (unless it is a mandatory sentence of imprisonment), the court should first consider imposing a fine, whether or not a fine is specified as an alternative sentence, and should impose a fine unless the court is satisfied that the seriousness of the offence or the circumstances of the offender would make it inappropriate to do so. This could be backed up with guidelines that restrict the circumstances in which community-based sentences would normally be imposed.

Any increase in the use of fines as a substitute for imprisonment, particularly for offences other than property offences, runs the risk of not satisfying the public’s sense of justice. There may be a view that for what are presently regarded as serious offences (particularly offences against the person) a fine would unduly depreciate the gravity of the offence, particularly in light of current penalties which are more severe.^[143] This may have a lot to do with the extent of the criminal record of many who commit these crimes. To a lesser extent the same perception could arise with more use of fines at the expense of community-based sentences. (This may not apply if, instead of fines, offenders were being sentenced to make reasonably substantial reparation to their victims.)

Sentencing guidelines are one way of providing for greater attention being paid to the means of the offender in setting the amount of the fine, without the complexity and difficulties associated with the unit fine concept. The Criminal Justice Act 1985 could be amended by making provision for an increase in the amount of fines imposed on well-to-do offenders, as well as providing for a reduction in quantum for those of limited means.

An example of such an amendment is to require the court, where it is aware that the offender is of limited means, to consider nevertheless whether, apart from the question of the offender’s means, a fine (whether by itself or in conjunction with some other sentence) would be an appropriate penalty for the offence. Where the court determines that, but for a lack of means on the part of the offender, a fine is an appropriate penalty for the offence, the court may nevertheless impose a fine. In these circumstances, if the court decides that a fine is appropriate, the court would be required to enquire into the offender’s financial circumstances and in fixing the amount of the fine the primary consideration would be the offender’s means and the period of time during which he or she could be reasonably expected to pay the fine.

Where a fine was considered appropriate and the offender was of above average means the court would be required to increase the amount of a fine payable above that which would be appropriate for a person of average means (subject to constraints imposed by the statutory maxima). In assessing the extent of that increase the court would be required to have primary regard to the extent of the offender’s means.

A more general amendment could be along the lines of the provisions in the UK Criminal Justice Act 1991 (as amended in 1993) that state that in fixing the amount of any fine the court shall take into account the financial circumstances of the offender so far as they are known to the court and that this is to apply whether it has the effect of increasing or reducing the amount of the fine. There could also be more emphasis on the court obtaining information on the offender’s means as long as an inability to obtain this information did not prevent the court from fining an offender.

Whenever the infringement procedure is extended to include more offences under different legislation the procedure for serving the infringement notice and the particulars that must be in the notice are restated to some degree in the relevant Acts (such as took place with the Sale of Liquor Amendment Act 1999). This could be avoided if there was an Infringements Act.

Such an Infringements Act would list (in a Schedule) the offences designated as infringements (or to simply state infringements to be those offences defined as such by other legislation) and set out the procedural arrangements for issuing and enforcing infringement fees (on-the-spot fines). The statute would include both the procedures for paying the fixed amount of the infringements, and for prosecuting this class of offences in court in the event of the defendant requesting a hearing.^[144]

This could also provide an opportunity to review the infringement notice forms, which would be included in a schedule.

South Australia has an Expiation of Offences Act 1996 that sets out the notice procedure (including enforcement procedures) where an expiation fee is fixed by or under any Act in respect of an offence. Canada has a Contraventions Act 1992 setting out the procedure for the prosecution of those offences designated as contraventions (regulatory rather than criminal offences).

The degree to which the infringement notice procedure is becoming automated, particularly in respect of traffic offences (both in their detection and enforcement) or routine, generating ever increasing numbers of instant fines, may end up producing greater non-compliance, which will place increasing pressure on the courts fines enforcement system.

The application of current guidelines could be reviewed and informal processes could be put on a more formal basis that could be consistently applied throughout the country. There could also be a formalised warning system for less serious cases involving infringement offences to replace the issuing of penalty payment notices. There could be two types of offence infringement notices, one involving a formal warning and the other being like the current penalty payment notice. The former would be available for the least serious first offenders. It would specify that the warning was being recorded on a database for 365 days from the date of the offence and that a subsequent case of re-offending within that time would be treated more seriously. It might also require the offender to sign and return the notice to show receipt of the document and acknowledgement of the warning. It would be possible to contest the warning in court. These options would involve a loss of revenue for the relevant authorities.

The state of Victoria has been trialling caution notices for minor possession of cannabis offences. The caution notices are issued by the police to adults without prior drug convictions with less than the designated amount of dried cannabis in their possession. The offenders are required to admit the offence and accept the caution. A caution is not given more than once.^[146]

A variation is for the Police to have a diversion scheme for infringement offences (without any involvement of the courts) and for local authorities to run diversion schemes, subject to guidelines and scrutiny. This could be restricted to first offenders and where the offender was in a poor position to pay. The offender would need to apply for diversion following receipt of the infringement notice. Diversion requirements could involve community service and/or requirements relating to road safety (obtaining warrants of fitness, participating in defensive driving courses, or driver offender treatment programmes). A data-base would have to be established if diversion was to be limited to first offenders. The principal advantage of this scheme is that it would reduce the volume of unpaid infringement fees lodged with the courts that are difficult to recover. There would be practical difficulties with ensuring that these schemes did adhere to national standards and there would need to be some level of procedural protection for defendants to ensure that a somewhat arbitrary and heavy-handed alternative ‘justice’ process did not result. There would also be administrative and cost implications for the Police.

The prosecutor fine is a devise used in some jurisdictions where the prosecution of offences is conducted by a separate agency from the police. Under the system the prosecution is empowered to offer an alleged offender the opportunity of paying a fixed sum in order to avoid prosecution (and probable conviction). It therefore works in a fairly similar manner to the fixed penalty or infringement notice fee for traffic and other offences (particularly in its avoidance of a criminal conviction), except that it is issued by a public prosecutor (rather than by the police), and tends to be used to deal with more serious offending (e.g. theft and assault) as well as a wide range of miscellaneous regulatory offences.

In New Zealand, in the absence of an independent prosecution service, the prosecutor fine is probably not a realistic option, although recent developments have seen more separation of the prosecution function from the investigation of cases.^[147] If we were to proceed with an independent prosecution service then the prosecutor fine could be looked at further. The advantage of giving an independent prosecutor powers to offer a fine is that it has the potential to remove a substantial number of cases (a large proportion of those that go to court and result in a fine as the most serious sentence) from the court process. This would involve significant savings for courts.

The prosecutor fine is common in continental jurisdictions. It is used extensively in the Netherlands — where it is known as the “transaction” — and also appears in Belgium, France, Sweden and Norway. It was introduced to Scotland in 1988 (section 56(1) of the Criminal Justice (Scotland) Act 1987), where it became known as the fiscal fine because it is issued by the procurator fiscal (the public prosecutor in Scotland).

The Scottish system empowers a procurator fiscal to issue a ‘conditional offer’ (i.e. a fiscal fine) to an alleged offender as regards to any offence which may be tried in the district court (except motoring offences which are covered by the fixed penalty scheme). The district court is the lowest criminal court in Scotland with power to impose fines up to £2,500 and terms of imprisonment up to 60 days. The offer is that in return for paying a fine of £25 to the district court within 28 days, criminal proceedings shall not be brought. (There is the possibility of paying by instalments of £5 per fortnight.) Acceptance of the offer does not involve a criminal conviction. Guidelines issued by the Lord Advocate state that a fiscal fine should not be offered where a disposal other than, or in addition to, a fine would be desirable. The list of such disposals include a compensation order and reparation.

In the Netherlands the public prosecution service possesses a wider range of discretionary powers than its Scottish counterpart. Public prosecutors receive the same professional training as judges and are referred to as “standing magistrates” (judges are referred to as “sitting magistrates”). They operate within their own department. The prosecution service has the sole responsibility for determining whether there should be a prosecution in any particular case and, like the Scottish procurator fiscal, has a range of alternative disposals open to it including that of the prosecutor fine or transaction. The public prosecutor’s powers to offer transactions was extended in 1983 from infractions (as opposed to crimes) punishable by a fine or imprisonment to cover crimes for which the maximum penalty does not exceed 6 months imprisonment. The police are also empowered to offer transactions in respect of certain infractions, principally traffic offences. The Dutch public prosecutor can set a transaction at any amount (rather than it being a fixed amount as in Scotland). This discretion is subject to guidelines which comprise detailed tables of tariffs for the different types and degrees of offences. Transaction amounts are slightly lower than court-imposed fines in order to create an incentive to accept a transaction offer. Police transactions are limited to fixed sums for the relevant categories of offence. Payment of a transaction is by lump sum alone but the public prosecutor may vary the time allowed for payment. In respect of crimes only (not infractions) the victim may apply to the Appeal Court within 3 months to have the prosecutors decision set aside. If the appeal is successful the court will order a prosecution and any payment will be returned. In practice few victims submit such applications and few succeed. The Dutch public prosecutor (but not the police) may attach conditions to the offer of a transaction requiring total or partial compensation to the victim or forfeiture of property.

In adopting the prosecutor fine approach a decision that has to be made is whether the fines are to be limited to a standard fixed penalty for all cases, a sliding scale of penalties subject to a set maximum, or an even more discretionary regime. A related question of lesser importance is whether to permit payment by instalments. A major issue raised by the status of the prosecutor fine concerns the extent to which it should affect subsequent and unrelated criminal proceedings against the accused. In particular, should the acceptance of a prosecutor fine constitute a criminal conviction? In both Scotland and the Netherlands it does not but in other jurisdictions, notably Sweden and Norway, a prosecutor fine may in certain circumstances count as a criminal conviction. However, in the Netherlands the police keep a central record of all transactions and an accused’s previous convictions file includes details of these.

Whenever fines are defined in fixed dollar amounts the extent of the punishment involved tends to be devalued by the effect of inflation, which reduces their economic impact on offenders. Fineable offences are so numerous that the adjustment of all maximum fines authorised by statute according to the consumer price index (or some other measure of inflation) is going to be so time-consuming that it will hardly ever be done on a regular basis. The same difficulty does not apply to reparation, which is calculated with reference to the value of the property or estimated harm involved in the offence.

An alternative to having maximum fine amounts for offences is to express penalties in terms of numbers of penalty units and set down the dollar value of the penalty unit. The number of penalty units is multiplied by whatever their value is in order to fine an offender. This makes it easier to maintain the real value of fines, as a single short legislative change to the value of the penalty unit from time to time is all that is required. This in effect adjusts the fining provisions contained in a large number of Acts at the same time and means inflationary (or deflationary) changes can be accommodated expeditiously. Such a system has been adopted in a number of overseas jurisdictions (see chapter 4).

The initial transition from dollar amounts to penalty units would be the most difficult part of such an exercise. All current fine amounts would need to be converted to penalty units by dividing the dollar amount by the value of the penalty unit that is to be applied in future (with rounding applied).

Currently fines and unpaid infringement fees are collected and enforced by the Department for Courts. The question has been raised in the past whether fines administration is more akin to other court-imposed sanctions like community-based sentences than the core business of courts and would be more appropriately subsumed under the Department of Corrections, at least in the case of judicial fines. This approach would effectively separate fines collection and enforcement from the provision of administrative services to the judiciary.^[148] One of the reasons that it makes sense for fines recovery to stay with the courts is that this model facilitates the discharge of fines, or arrangements for subsequent payment, to be organised immediately following sentence before the offender has left court.

There is still the issue of whether infringement fees could be left over to the respective prosecuting agencies (police and local authorities) to enforce. This may involve providing those collecting authorities with the same bailiff authority now exercised by the Collections Business Unit. The argument is that the courts are simply acting as a debt collector for the agencies (although the courts endeavour to recover costs through enforcement fees and a charge on the payments made). The report of the Courts Services Review Committee (5 October 1994) considered whether collecting fines belonged in the Department for Courts or even the public sector or whether it would be better carried out by private debt collection agencies. A pilot project was carried out after the Collections Business Unit was set up in January 1996 to see how successful private sector agencies would be in collecting unpaid fines. It showed they were as successful at tracing defaulters but not as successful at collecting the debt, probably because they lacked the department’s data matching and enforcement powers.^[149]

The decision to retain collection of both types of fine as a core business within the Department for Courts reflects the existence of a nation-wide infrastructure for fines collection that has proved its effectiveness in the past, although the collection rate has declined from that of the mid-1980s.^[150] No comparable structure exists within either police or local authorities and it would likely be expensive and inefficient to duplicate the existing system for fixed fee fines alone.

There is the possibility of courts retaining the fines enforcement role but contracting out more of the activities in that role to private sector agencies where this can be shown to be cost-effective (the coercive nature of many of those activities, and hence the need for safeguards to protect the public’s and defendants’ rights, may limit proceeding in this direction). For example private agencies could be used for locating fines defaulters that neither court staff nor police have been able to locate.

Currently there is provision for the payment of infringement fees by instalments provided the prosecuting agency has the management and accounting systems to deal with this. Otherwise it needs to go to court for instalments to be arranged (which incurs court costs). Where the necessary systems are not in place it appears that difficulties do arise for those on low incomes. If the Police and Local Government were to upgrade their systems throughout the country in this regard, then presumably fewer infringements would end up in the court system. In the state of South Australia there is now provision in legislation for offenders to apply (on grounds of hardship) to a court registrar to either pay expiation fees (their equivalent to infringement fees) in instalments or to work off the fee by community service.^[151]

Reparation was included as a sentence in the 1985 Criminal Justice Act rather than as a condition of a sentence or an ancillary order, so that it could serve as a punishment in its own right. There are some disadvantages in treating reparation this way. It means that it can only be imposed where a person is convicted of an offence, and cannot be imposed where the court disposes of a case by deferment, conviction and discharge, or discharge without conviction.^[152] The 1981 Penal Policy Review Committee discussed reparation as an order and saw it as being applicable even in relation to offences that were not proved (e.g. in cases involving extensive commercial fraud where not all charges were proceeded with).^[153]

As a sentence, reparation differs fundamentally from other sentences because reparation is mainly focused on the interests of the victim rather than the offender and so involves another party to those of the state and the offender. This creates the potential for conflict in that other sentences that focus on how society needs to deal with the offender, particularly imprisonment, may be contrary to the interests of the victim (since the offender who goes to prison loses his or her earning capacity and ability to pay reparation). In such cases it is likely that the interests of the victim become a secondary consideration because of the need to impose an appropriate level of punishment. This is presumably why in some jurisdictions, e.g. Victoria and NSW, reparation remains an order to be imposed in addition to sentence.

A potential disadvantage of having reparation as an order is that it may be seen as peripheral to the sentencing process and applied less often. Certainly the old compensation order was seen as peripheral to the former sentencing framework given that it was not even included in the Criminal Justice Act 1954. Instead it was a miscellaneous provision in the Crimes Act 1961. However, a section 11 type provision for reparation as an order could ensure this did not occur. In either case, whether reparation is a sentence or an order need not alter it being enforced as a fine.

A major reason for having it as a sentence is that from the offender’s perspective reparation, particularly in large sums, will amount to a punishment and should therefore only follow a conviction. Another reason for maintaining the status quo is that to re-establish reparation as an order might create the impression that it was being downgraded, even if it was backed up with provisions emphasising its use. It would appear to be stepping back from giving the needs of victims greater prominence in the criminal justice system.

As discussed in chapter three, the reparation provisions in the Criminal Justice Act have already undergone several changes in order to encourage its use by the courts.

Research undertaken in 1996 supported the conclusion that a major reason for there being few cases where reparation is imposed is the percentage of cases where there is no financial loss to the victim. Department of Justice research in late 1988^[154] had also found this to be the situation. The research also revealed that the 1993 amendments to the Criminal Justice Act 1985 legislated for judicial practices already largely taking place and so did not produce significant changes in the courts’ use of reparation.^[155]

It appears that many of the criticisms of the sentence of reparation arise from a conflict between the expectations of the public on the one hand and the reality of the appropriateness of a sentence of reparation in any particular case on the other. The legislation, even more so following the 1993 amendments to the Criminal Justice Act 1985, gives rise to an expectation that the sentence will be common for offenders who have caused loss to others and that the offender will compensate the victim. A perception has arisen that reparation should always be imposed when both a victim and a quantifiable loss are identified. This comes through strongly in the comments of victims reported in the Department of Justice’s 1992 report on reparation.^[156] The sentence, however, will never be universally imposed in these cases for many reasons.

The principal one is that it is frequently unrealistic to impose reparation because of the circumstances of the offender (this includes such matters as financial means, financial obligations such as dependants and debts, life circumstances, particularly whether they are having to serve a custodial sentence, financial and employment prospects, and lack of compliance with previous reparation orders). As the Court of Appeal said in R v Jarvis in 1987:

in spite of the manifest intention of the legislation to make offenders pay for the damage they cause, and the court’s desire to implement it, realities must be recognised. One simply cannot get blood out of a stone.^[157]

The need to consider the means of the offender is clearly the major limitation on the use of the sentence and on the application of the principle of restitution which it represents (at least with respect to restitution in monetary terms). The credibility of reparation depends on it being enforced. Imposing reparation for the full value of the loss or damage in every case, irrespective of the offender’s current circumstances, and creating if necessary a life-long debt for the offender, is not a practical option for the courts in terms of enforcement and would not enhance the usefulness of the sentence for victims. The enforcement process will be assisted if reparation is limited to realistic assessments of the amounts offenders are able to pay either straight away or over a reasonable period of time. The 1992 report showed that judges were imposing reparation in 60% of cases where there was identifiable victim loss.^[158] Having regard to the circumstances of most offenders, this statistic does not show a lack of commitment on the part of the judiciary to the sentence.

There are other possible amendments to section 11 which might give the appearance of encouraging greater use of reparation. One is a requirement that where the court, in individual cases involving loss of or damage to property or emotional harm to a victim, does not impose reparation it must give reasons why it considers reparation to be clearly inappropriate. South Australia’s Criminal Law (Sentencing) Act 1988 (section 53) includes such a requirement. This would supposedly ensure that the courts give active and public consideration to the question of reparation in every appropriate case and assure victims that their needs have not been ignored. It might also increase the consistency and fairness of sentencing decisions about reparation. It would not necessarily increase the imposition of reparation but simply put on a more formal basis for the record the reasons in each case for not imposing it.

Another option is that the courts be required to impose reparation in all cases involving loss of or damage to property or emotional harm to a victim unless there is some compelling reason that indicates that the sentence is clearly inappropriate. There could be a list of what might constitute a “compelling reason” in order to restrict the application of the phrase. This may, however, reduce the pool of people sentenced to reparation if the courts automatically exclude all situations covered in the list.

In Tasmania the Sentencing Act 1997 provides that where the victim has suffered injury, loss, destruction or damage as a result of the offence the court must order compensation when the offence is burglary, stealing, or unlawfully injuring property and may order compensation in other cases. It is not clear how this law works in practice. It is not replicated in any other state.

There is also the consideration that the stronger the presumption the greater the expectation that reparation will be imposed in all cases where there is some loss to a victim.

Although there are no exact statistics, the sentence of reparation is rarely imposed for emotional harm.

In 1998 only 5% of reparation orders involved violent offences or other offences against the person and emotional harm reparation reports most often relate to these offences (only 5% of those offences resulted in a sentence of reparation).^[159] This low level of reparation for emotional harm may be because the possibility of reparation for emotional harm is rarely addressed by the police or the community probation service and there may be a reluctance by judges to delay sentencing while the matter is pursued.

Informing the sentencing judge about any emotional harm suffered by the victim can also be done through victim impact statements. New Zealand’s Victims of Offences Act 1987 (section 8) provides that victim impact statements (either in written or oral form) are to inform sentencing judges about “any physical or emotional harm” suffered by the victim. The term “emotional harm” is not defined in the Act (or in the Criminal Justice Act 1985) and therefore can be interpreted very broadly. As Hammond J stated in Sargeant v Police (HC Hamilton, AP 130/97, 28 November 1997):

At the lowest end of the scale, it could mean simply ‘mental anguish’ occasioned to a victim by a crime; at the other end of the scale, the particular harm might be manifested in identifiable, long term, clinical conditions such as traumatic stress disorders or even psychotic conditions.

This leads to difficulties in identifying and assessing the actual loss and the even greater difficulty in quantifying such matters as grief, anxiety, and mental pain and suffering. The courts have no choice but to develop over time somewhat arbitrary limits to subject matter that cannot be treated with anything like scientific precision. A further difficulty arises from the consideration that legislation and case law require that the court’s award of a particular amount of money for emotional harm must have full regard to what the offender can reasonably pay rather than be based solely on a determination of a monetary value of the emotional harm suffered by the victim. The victim will nevertheless see the amount ordered by the court as an assessment of the court’s belief as to what the emotional harm was worth in monetary terms. In most cases this is likely to be regarded as an insult because it is unlikely that there will be many occasions when an offender can realistically pay what a victim would consider a proper sum for the full extent of the emotional harm.

Although victim impact statements prepared by the police are not directly related to reparation (i.e. they do not seek an amount of reparation to compensate the victim) judges appear to be ordering reparation on the basis of victim impact statements. There is possibly duplication between reparation reports about emotional harm and victim impact statements and, if so, this might be putting victims through unnecessary stress. The key difference is that reparation reports allow for the possibility that a meeting may occur between offender and victim, and agreement may be reached between the two regarding an amount of reparation the offender should be required to pay. When no meeting with the offender can be held or no agreement between the offender and the victim is reached, the emotional harm reparation report is not likely to hold any useful information further to that contained in the victim impact statement.

The 1992 reparation report recommended that attention should be given to increasing the frequency of victim/offender meetings as a means of arriving at a reparation amount acceptable to both parties. It was thought that this process might bring a greater level of compliance with the sentence and that there was a greater willingness of victims to have such meetings than was indicated by the low rate at which they did occur.^[160]

However, caution has to be exercised that no undue pressure is applied to a victim to meet with the offender. The Criminal Justice Act 1985 (section 23(4)) specifically states that there is no obligation on any victim to meet with the offender (for the purposes of the offender and the victim reaching agreement on an amount of reparation that the offender should pay).

There is also the consideration that even if an offender/victim meeting takes place and agreement as to an amount of reparation is arrived at, this will not always be the outcome of the case. The court may not consider it appropriate because of the likelihood of the offender not being in a position to meet such an obligation. This might be the case if a sentence of imprisonment needs to be imposed.

Whether or not more victim/offender meetings would either increase the use of the sentence of reparation or lead to improved rates of payment could be tested in any future pilot programmes of restorative justice. The possible involvement of the victim sets reparation apart from other sentencing options available to the courts. Victim/offender meetings fit in with the concept of restorative justice, involving as it does all parties (offenders, victims, communities and government) in the response to crime. The restorative justice model also does not have the same emphasis on traditional sentencing principles such as retribution and deterrence or the same operational imperatives (i.e. the need to minimise delays in court, and pressures on probation officers to maximise the processing of cases) which may get in the way of the involvement of victims.

The presence of victims (who have an input into the outcome) is also a feature of a pilot community panel adult pre-trial diversion scheme operating in Timaru. They are present at the panel meeting in most cases that are diverted to this scheme.

There is now provision (where sums of money totalling $10,000 or more are involved) for charging orders to be placed on houses, land, and other property (e.g. shares, partnerships) owned by the offender in order to obtain reparation payments. The matter is presented in court and the judge can serve a writ of sale giving the Department for Courts the right to sell the property to recover the reparation and costs. Charging orders (made in accordance with the District Courts Act 1947) can cover a wide range of property, including property in trust.

Other ways of enforcing payment of outstanding reparation include ordering deductions to be made from offenders’ bank accounts (including joint bank accounts), placing attachment orders on wages and salaries, and seizing property from the offenders’ premises (including motor vehicles) which can then be sold to pay outstanding amounts.

The Department for Courts is evaluating the implementation of the legislative enhancements during 1999/2000.

At present sentences of reparation are imposed with regard to the time it might take to pay the amount involved. Where the reparation is not to be paid forthwith the court must set a date for payment (if to be paid as a lump sum) or the amount and frequency of instalment payments. There is also the ability of courts to remit the whole or any part of the amount to be paid under a sentence of reparation.

In relation to the possibility of orders of reparation remaining an ongoing debt until paid in full, Hall notes a case where the court, rather than remitting a reparation order because the offender had no funds available (he had been imprisoned), suspended compliance with a reparation sentence until the registrar had knowledge of the prisoner’s access to funds or until a further order of the court was made.^[163] The Court of Appeal has stated that

there is no requirement that a reparation order must be limited by the present means of the offender. If that was so there would be no provision for payment by instalments and attachment of future income (R v Brown 1992).^[164]

Provision is made in section 22(6) of the Criminal Justice Act for periodic payment. Section 24(b) provides that the court may with the consent of the offender, make an order attaching any salary or wages that from time to time become due and payable to the offender. Hall also states that in considering the ability of an offender to pay, the court may, and frequently does, take into account the probability of receipt of money in the future, including future earnings.^[165]

However, the courts have also stated that reparation should be able to be paid back over a reasonable time. There is no clearly established time frame during which it is appropriate to order an offender to make reparation by instalments, although orders extending beyond 2 or 3 years are not common. In 1992 the Chief District Court Judge was of the view that a sentence of reparation involving periodic payments over a period in excess of 2 years should not be imposed unless there are special reasons.^[166] Payments within a 2 or 3 year period have been said by the courts to be reasonable. There have been cases where payments spread over 4 and 6 years have been upheld. In other cases, orders requiring payment to be made over 5, 7, 13, and 16 years have been held by the courts to be too severe. They have stated that it is not appropriate that people should effectively be bonded debtors throughout their lives (Rihari v Department of Social Welfare 1991).^[167] Another rationale for this is that reparation is an order of the court and that there are sanctions (including imprisonment) available for breaches of the order. A lengthy period of repayment could therefore mean an alternative sentence being applied long after the offence.

The 1992 research report suggested that the payment of reparation by instalments was more likely to be completed by the offender than payment by a lump sum. After one year 38% of offenders sentenced to pay reparation by a lump sum had completed payment, while 62% of offenders sentenced to periodic payments had paid the required amount.^[168]

It is submitted that, rather than improving the value of the sentence to the victim, providing for the courts to always seek full reparation from the offender, no matter how long it would take to pay, would likely bring the sentence into further disrepute by encouraging the imposition of reparation orders involving very small instalments over many years, or instalments being paid irregularly, or not being paid at all for long periods of time. It would drag out the enforcement process with outstanding amounts having to be tracked for a long time.

The value of the sentence to victims is more likely to be enhanced by greater emphasis on ensuring that the payment ordered is received within a reasonable amount of time. This could be assisted by amending the Criminal Justice Act to state that the maximum term of a reparation sentence will be 2 years (consistent with most other penalties being expressed in terms of a maximum period of time). However, this is probably too prescriptive. The status quo has merit in that it allows each case to be considered on its merits.

State-funded advances on reparation payments

It has been suggested that one way of dealing with the compliance problems associated with reparation would be through having advance payments by the state of part or all of reparation orders.

This proposal was reviewed by a Department of Justice reparation working party in 1993. On balance it was considered that the disadvantages outweighed the advantages. It was thought that the intervention of the state between victim and offender could devalue reparation as a sentence for the offender and that the restorative process possible for both victim and offender from direct payment would be lost. Moreover, offenders could feel less obligated to pay reparation that went to the state. There are significant cost implications for government arising from the likely shortfall between the amount of reparation advanced by the state and the amount subsequently recovered from the offenders receiving reparation sentences. This would be escalated if state payments encouraged increased use of the sentence.

Based on the number of sentences of reparation in 1998 of 13,200 (totalling $12.3 million), a very rough and early estimate is that if all reparation orders of $250 or less were advanced to victims in full and $250 was advanced in the case of all reparation orders of over $250 then government could (as a conservative estimate) incur an annual cost of between $1 million and $1.5 million.^[170]

This calculation does not take into account either the administrative costs of setting up and administering advance payments or changes to enforcement costs.

Another approach would be for victims to be able to claim assistance from something like a state-funded Criminal Injuries Compensation Board. The court could then make an order at the sentencing stage requiring the offender to pay back some or all of this assistance. This would prove more costly than advancing up to $250 in each case, partly because not all cases would end up with the conviction of an offender.

Judges of the High Court have recently noted that the incidence of non-compliance with reparation orders is a matter of concern. They have suggested the option of the Crown underwriting the orders for reparation and applying either sanctions against offenders who default or fixing a value in terms of community service to be performed by the offender for the monetary sum provided by the Crown.^[171] This variation would still involve significant costs to government.

The sentence of reparation is restricted to the payment of a monetary sum. This contrasts with section 12 (provision for an offer of compensation to be taken into consideration when sentencing) which includes performance of work or service for victims (as a result of an amendment made in 1993). Section 12 requires a voluntary act from the offender that is not part of a formal sentence. The Victims Task Force 1993 report recommended that the concept of reparation should be expanded to allow for service to the victim. The Task Force considered that to encourage use of a sentence which combines punishment with a lengthy and visible process of redressing wrong could improve the effectiveness of the criminal justice system for both offenders and victims. They considered this development particularly appropriate within a Polynesian context.^[172]

The main advantage of providing for reparation as a service to the victim would be the potential to overcome the limitation of some offenders having insufficient means to make financial reparation. Such offenders could instead provide labour for the benefit of victims. However, there are practical difficulties associated with the administration and supervision of reparation as service (involving organising the consent of both offender and victim, ensuring suitable work was available, and the need to involve the community probation service or contractors in the oversight of the work). In many cases it may be that victims would not want the contact with the offender, or for the offender to be on or near their property, and care would need to be taken that victims were not pressured into consenting to such an arrangement. As an alternative to work that has some association with and directly benefits the victim, the victim could nominate a charitable, education, cultural, or recreational organisation for which the offender could provide some service.

As with victim/offender meetings, reparation as service is a concept that accords with restorative justice processes with their emphasis on reconciliation between offender and victim. It is therefore suggested that any developments in this direction could be trialled first in the context of structured pilot programmes of restorative justice.

It appears that many of the criticisms of the sentence of reparation arise from a conflict between the expectations of the public on the one hand and the reality of the appropriateness of a sentence of reparation in any particular case on the other. The legislation, even more so following the 1993 amendments to the Criminal Justice Act 1985, gives rise to an expectation that reparation should always be imposed when both a victim and a quantifiable loss are identified and that the offender will compensate the victim. The sentence, however, will never be universally imposed in these cases for many reasons.

The need to consider the means of the offender is clearly the major limitation on the use of the sentence and on the application of the principle of restitution which it represents (at least with respect to restitution in monetary terms). It is frequently unrealistic to impose reparation because of the circumstances of the offender (which includes such matters as financial means, financial obligations such as dependants and debts, life circumstances, particularly whether they are having to serve a custodial sentence, financial and employment prospects, and lack of compliance with previous reparation orders).

It is unlikely that the credibility of the sentence would be enhanced by ignoring this reality and imposing reparation in every case where there is a victim loss, creating long-term debts for the offenders irrespective of their current circumstances.

Research does not show a lack of commitment on the part of the judiciary to the sentence. Since the introduction of the reparation sentence in 1985 it has been used by most judges to add an element of restoration to the sentencing process, rather than as another form of punishment. Judges tend to regard it as a sentence which does not carry with it a strong element of punishment, and mostly use it in conjunction with other sentences which they perceive to be more punitive.

Aspects of reparation are well-suited to restorative justice processes, particularly the possibility of the active involvement of the victim in the justice process and requiring the offender to take responsibility and address through restitution the loss or injury incurred by the victim. Enhancing those aspects through more victim/offender mediation meetings and extending reparation to include service could be trialled in any future pilot programmes of restorative justice.

The credibility of reparation depends on it being enforced. This requires effective enforcement procedures and realistic assessments of the amounts offenders are able to pay either straight away or over a reasonable period of time. Legislation passed in 1998 should greatly assist the courts with the enforcement of reparation.

If there is to be an emphasis on guaranteeing compensation for victims it would probably have to be done with the assistance of the state through advance payments of reparation to victims or through the establishment of a state-funded compensation scheme for victims of crime. Provision could be made for offenders to pay back the state all or part of the sums involved, although it is unlikely that the full amount would be collected, and so consequently there are significant cost implications if such changes were introduced.

This paper sets out the use of infringement fees, fines, and reparation in New Zealand and also surveys their use in some overseas jurisdictions. Some general issues and a number of different approaches to these penalties have been discussed.

The development of the infringement notice system, which avoids formal prosecutions in the courts, has proved an expedient and cost-effective way of dealing with less serious offending. In New Zealand, as is the case overseas, the issuing of infringement notices (tickets) for minor offences continues to increase, particularly with the growth of motor vehicle ownership, increased road traffic regulations, and improvements in technology that enable more automatic detection of offending and the rapid processing of notices. The use of such notices has also been spreading beyond motoring and parking offences into quite different areas of the law.

The reclassification of certain summary offences as infringement offences has proceeded on an incremental and ad hoc basis, and there has been some advocacy for significantly expanding the range of offences capable of being disposed of in this way. The question arises whether it is fair and appropriate to have flat-rate penalties (irrespective of prior records) for more and more offences, particularly in the cases of first offenders who can receive no concession and those who continue to re-offend and incur no additional penalty. The example of first offenders is an argument for not setting the levels of infringement fees for individuals at too high a level. Structuring the levels of infringement fees so that they relate to the number of previous offences would involve maintaining some form of database that did not constitute a criminal record. Greater use of warnings or diversion, if necessary on a formal basis with procedural protections, could address some concerns about prosecuting authorities being heavy-handed in their use of infringement notices in a manner that seems more related to raising revenue than encouraging people to obey the law. Changes in this direction would have cost and administrative implications for the Police.

Infringements are not appropriate for broadly defined offences that can include very different degrees of culpability and levels of harm that should influence the penalty to be given and that therefore should be subject to a range of sanctions rather than a set fee. This means that infringement offences should be limited to offences able to be defined according to readily ascertainable objective elements. This is not necessarily a serious limitation to creating infringement offences, but means that some categories of offending may need to be subdivided to arrive at a limited range of behaviour of a not too serious nature to be dealt with by way of the infringement system.

Extending infringement fees into a broader range of offending may involve higher proportions of non-payment from the new groups of offenders who become subject to this process. There is also a risk of net-widening as people who might previously have been warned or cautioned for their behaviour begin receiving infringement notices.

The fine is still the dominant sentence in New Zealand. Sixty per cent of convicted traffic offences resulted in a monetary penalty in 1998. Even for non-traffic offences the fine is the most serious sentence in about one-third of cases (and in about 50% of cases 10 years ago). Over time the use of fines as a sanction is being increasingly restricted to low severity offences, and fines rarely stand alone as a sole punishment in more serious cases. They are often combined with other non-custodial sanctions. There are probably two essential pre-conditions for the fine to continue to be the core sanction. There must be principled means for adjusting the amount of a fine to take account of both the offender’s culpability and his or her resources and there must be efficient and reliable systems of collection and enforcement to ensure that most fines that are imposed will be paid in full and on time.^[173]

There has been a drastic decline in the use of the fine by the courts in the last 10 years (the number has dropped by more than half). Major contributors to this trend have been the conversion of offences into infringements (resulting in monetary penalties of a different kind) and the growth of the police adult diversion scheme. However, another reason has been that the main approach to the problem of an ever-increasing prison population during the last two decades has been to tempt judges with new or improved non-custodial sentences as alternatives to imprisonment. As a result the courts now have an unusually large range of community-based penalties available to them, and they have been making increasing use of them. The result is that punishment has been pushed up the scale — away from the fine and into community sentences and imprisonment. Some of this change in sentencing practice may have been due to changes in the financial circumstances of offenders coming before the courts. To make better use of the resources of the criminal justice system will need a more wide-ranging adjustment of the country’s punishment system than simply diverting a proportion of custodial sentences into community-based sentences. What is required is a wider shift of court disposals down the ladder of punishment (bearing in mind current expectations about degrees of punishment and public protection).

The fine could become the presumed/preferred punishment for all but a few offenders and other punishments could be alternatives to fines. This would mean that only to a limited extent, at the high end of severity of crime, would the fine be an insufficient and inappropriate sentence. The fine (provided it could be properly sized and effectively enforced) could well be the principal sentence of choice for a wide range of moderately serious offences, including a lot of street crime (e.g. disorderly behaviour, rioting). This is subject to the proviso that the offender does not represent a continuing danger to the physical safety of any member or members of the public, or is in need of control or treatment to lessen the likelihood of re-offending.^[174]

There is a perception that a fine cannot be applied to the impecunious offender because either there is such limited ability to meet additional financial obligations that little or nothing will be paid (without the offender suffering financial hardship) or the offender will commit more crime to obtain illicit income to pay it. There may be ways round this such as offenders paying small amounts over a long period, or offenders using assets (in the event of these existing) or the income or assets of family or friends. The latter has the effect of bringing the offender’s transgression to the attention of those most likely to be concerned and supportive and may catalyse family and social support that otherwise may not eventuate. There is the view that a punitive fine imposing significant financial hardship or inconvenience on the offender (so that re-mortgaging or selling assets results) is still preferable to the oppressive nature of imprisonment. On the other hand, the use of heavy enforcement measures in order to get payments from offenders needs to be kept within limits which relate to how punitive the original fine was meant to be.

The other perceived limitation of the fine in respect of offenders’ means, representing the obverse of the above, is that the level of the fines that are normally awarded can seem derisory when applied to the, admittedly small, number of well-off offenders who receive sentences of a fine.

Fining systems in Germany, Sweden, Finland, Denmark, France, Portugal, and Greece (and at various times in Austria, Hungary, and England) separate the sentencing decision into two distinct steps. This bifurcation permits the sentencer to first make an independent assessment of the gravity of the offence (and translate it into unit terms) and then to consider the means of the offender to determine the monetary value of each unit (with generally some portion of the offender’s income being the basis of the valuation). When these two separate decisions are brought together, the judge can sentence offenders convicted of the same offence to an equal economic burden even if they have very different financial resources. When this process is applied, fines become more widely used as a stand-alone sanction across a broad array of offences of varying levels of severity.

The focus on the offender’s daily income has resulted in this two-step variable fining system being called “day fines” in many countries. In England they were called “unit fines” (the unit was a week) and in the US they are called “structured fines”.

There are two approaches to day fine systems, typified by Germany and Sweden. In the German system the fines are viewed as a replacement for terms of imprisonment and designed to be punishing, so that the day fine is like the daily net income the offender would have forfeited if he or she had been imprisoned (with no allowances made for family maintenance). The Swedish system involves a milder level of economic deprivation, so offenders lose out on expenditures made after basic living expenses are met.

The problems to avoid in setting up any unit fines system (which led to the rapid demise of unit fines in England) are any drastic increase in fines for offenders of moderate and high income for relatively trivial offences, unreliable means of obtaining accurate information on offenders’ finances, and too much complexity or rigidity in calculating the appropriate fines.

Another approach to encouraging greater use of fines is to have sentencing guidance that creates a presumption in favour of fines for a wide range of offences and specifies that the offender’s financial circumstances should be taken into account when setting the amount of a fine (after determining the level of fine that represents the seriousness of the offence). It would be made clear that this adjustment should take place whether it has the effect of increasing or reducing the amount of the fine. This approach to fixing the level of fines is that adopted by the UK Criminal Justice Act 1991 as amended in 1993.

Reparation has been given a central place in New Zealand’s sentencing options, which is not consistently the case in overseas jurisdictions. There have been criticisms that the greater emphasis on reparation in our legislation has not gone far enough. It is, however, difficult to see how reparation could be given more prominence as a sentencing option bearing in mind that it is unlikely to be seen as sufficient punishment on its own in many cases (as it only involves the offender returning the benefits of the crime) and that there are limitations relating to offenders’ financial situations that make it unrealistic to impose reparation in all cases involving financial loss to victims. It is hoped that the additional enforcement powers in the Summary Proceedings Amendment Act (No 3) 1998 will improve compliance with the sentence, which also remains an issue for many victims.

If there is to be an emphasis on guaranteeing compensation for victims it is probable that the state will have to assist though advance payments of reparation to victims, or through the establishment of a state-funded compensation scheme for victims of crime, and for offenders to pay back the state for all or part of the sums involved. This is the route some overseas jurisdictions have gone down rather than relying on offenders making reparation, which because of offenders’ various ability to pay makes it a random matter whether a victim receives compensation. Such changes have significant cost and administrative implications.

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^[1] The Use of Imprisonment in New Zealand (1998) and Review of Community-based Sentences in New Zealand (1999), available on Ministry of Justice website address: http://www.justice.govt.nz/pubs/reports/index.html
^[2] Spier, 1999.
^[3] Triggs, 1999.
^[4] Fox, 1995, p279. These arise from the need to regulate traffic flow and parking and reduce the dangerous misuse of motor vehicles which can have potentially lethal consequences. The continued growth in the production, ownership, and use of motor vehicles will ensure that traffic violations remain a major law enforcement problem.
^[5] Infringement notices also enable central and local government to obtain a significant amount of low-cost revenue, although the generation of such revenue is usually denied as being an objective of the system.
^[6] Figures indicate that about 60% of infringement offence notices issued by the police are paid. It is not clear what the overall compliance rate for local authority infringement notices is, but a smaller number of these notices are lodged with the courts for enforcement than is the case with police infringement notices.
^[7] Although it is not a matter of discretion, an adjustment for offence seriousness does apply with some traffic offences to the extent that the level of an infringement fee following a speeding offence increases with the level of excess speed and the fee increases with some parking offences as the excess time increases.
^[8] Fox, 1995a, pp10-14.
^[9] Challinger, 1985, p95; Penal Policy Review Committee, 1982, p113.
^[10] Penal Policy Review Committee, 1982, pp130-2.
^[11] NZPD vol 455, 1983, p4792.
^[12] New South Wales Law Reform Commission, 1996, p312.
^[13] See also Warren Young, ‘Appendix IV Punishment – Its Aims and Justification’ in Penal Policy Review Committee, 1982, p204.
^[14] Galaway and Spier, 1992, p17.
^[15] However, where a person pleads guilty after committal to a District Court for trial a judge may fine up to a maximum of $10,000 where no maximum amount is prescribed by statute (section 28F(1)(b)(ii) District Courts Act 1947).
^[16] See Hall, 1999, D/377.
^[17] Ibid, D/380.
^[18] Ibid, D/377.
^[19] The Summary Proceedings Amendment Act 1987 (section 14) introduced this requirement of the court to obtain a statement of means before imposing a fine (unless satisfied that the offender had the means to pay) but it originally only applied to fines in excess of $250. This monetary threshold was removed by the Summary Proceedings Amendment Act 1993.
^[20] Hall, 1999, D/392, D393
^[21] Penal Policy Review Committee, 1982, pp218, 131-2.
^[22]There is another way that a victim can be awarded compensation. Section 28 provides that the court may award the victim of an offence by way of compensation the whole or part of a fine imposed on the offender if the offence caused physical or emotional harm to the victim and was unprovoked. There is also section 12 which provides that, when deciding on a sentence, the judge may take into account any offer of compensation made by or on behalf of the offender to the victim, which may involve financial compensation or work or service. The extent to which the victim accepts the offer as expiating or mitigating the wrong may also be taken into account.
^[23] Hall, 1999, D/121.
^[24] Prior to the Criminal Justice Amendment Act (No 2) 1993 reparation could not be imposed concurrently with a combined sentence of periodic detention and supervision, but only with a single community-based sentence.
^[25] Galaway and Spier, 1992, p80.
^[26] Ibid, pp62, 85-7, 164.
^[27] Spier, 1999, p106.
^[28] This was the reason set out in a letter from Mr Justice Jaine to Chief Judge Cartwright in 1992, which was forwarded on to the Department of Justice.

^[30] Spier, 1998, p63.
^[31] Spier, 1999, p29.
^[32] Triggs, 1998, pp100, 105. The most rapid increases in the number of diverted cases occurred in the first 3 full years of the scheme (1989 to 1991) and after 1994 (when the eligibility criteria for diversion were broadened).
^[33] The number of offenders who had 6 to 10 previous proved cases almost doubled between 1983 and 1995, while those who had more than 10 previous proved cases more than trebled. Far fewer first offenders appeared in 1995 than in 1987. (Triggs, 1999, p44)
^[34] Triggs, 1999, pp114, 120.
^[35] Spier, 1999, pp33-4.
^[36] Source: Criminal Justice Group, Ministry of Justice.
^[37] A case is defined in general terms as all charges against a single offender which share a first or final hearing date in common. For a case involving more than one charge the charge taken to represent the case is the one that resulted in the most serious penalty.
^[38] Source: Criminal Justice Group, Ministry of Justice.
^[39] Source: Criminal Justice Group, Ministry of Justice.
^[40] Spier, 1999, p100.
^[41] Ibid, Table 7.1, p100.
^[42] Ibid, Table 7.3, p101.
^[43] Ibid, pp104-5.
^[44] Ibid, p104.
^[45] Spier, 1996, 1997, 1998, 1999.
^[46] Information was collected from four district courts over a period of six weeks (4 November to 13 December). Interviews were conducted with seven District Court judges. The response rate (percentage of property cases finalised during the six week data collection period that were recorded on the data collection forms) was unfortunately only 33% (which produced a total of 73 cases involving 93 property charges where no reparation was imposed). This limits the strength of the conclusions that can be reached from the research findings.
^[47] Spier, 1997, p145.
^[48] Ibid, pp146-7.
^[49] See chapter 2.
^[50] Spier, 1997, pp148-51.
^[51] Ibid, pp153-4.
^[52] Spier, 1997, p145.
^[53] Department of Justice research in late 1988 had also found this to be the situation. See Galaway and Spier (1992), pp56-7. This research found that in 41% of property offences resulting in a conviction no financial loss to the victim was identified. For offences against the person (either violent offences or other offences against the person) there was no identified financial loss to the victim in 96% of cases. In respect of emotional harm there was the difficulty that only 34% of the offences against the person had a written victim impact statement accompanying the statement of facts.
^[54] Triggs, 1999, p107.
^[55] Source: Criminal Justice Group, Ministry of Justice.
^[56] Triggs, 1999, pp112 and 126.
^[57] Source: Criminal Justice Group, Ministry of Justice.
^[58] Ibid.
^[59] Ibid.
^[60] Triggs, 1999, pp110-12.
^[61] Source: Criminal Justice Group, Ministry of Justice.
^[62] Prior to the 1987 amendment it could only be awarded for physical harm.
^[63] Source: Criminal Justice Group, Ministry of Justice.
^[64] Ibid.
^[65] Ibid.
^[66] Source: Collections Business Unit, Department for Courts.
^[67] At the end of 1998/99 fines totalling $48 million were subject to warrants to arrest (Department for Courts, Collections Business Plan 1999/2000, p15).
^[68] Brown, 1995, p22.
^[69] Lash, 1998, p22.
^[70] Ministry of Justice, 1999, pp78-80; Triggs, 1999, pp137-41.
^[71] Source: Criminal Justice Group, Ministry of Justice.
^[72] Mobile speed cameras were available from October 1993. Fixed speed cameras were not operational until the 1994/95 year. In 1994/95 there were 363,002 speed camera offences recorded (New Zealand Police Annual Report for year ended 30 June 1995).
^[73] New Zealand Police Annual Report for year ended 30 June 1999.
^[74] Source: Collections Business Unit, Department for Courts.
^[75] Ibid.
^[76] Cited in Brown, 1995, p17.
^[77] Often the minimum information required by courts — the name and last known address of the offender — is all that is provided by the informant.
^[78] Brown, 1995, p17.
^[79] Source: Collections Business Unit, Department for Courts.
^[80] The time to pay portion of the total unpaid balance at the end of 1998/99 was 34.6% compared to 22.1% two years previously (Collections Business Plan 1999/2000, p10).
^[81] Source: Collections Business Unit, Department for Courts.
^[82] Ibid.
^[83] Ibid.
^[84] Report in preparation.
^[85] Davies, Croall and Tyrer, 1998, p249; Walker and Padfield, 1996, p231.
^[86] Walker and Padfield, 1996, p232; Ashworth, 1995, p266.
^[87] Davies, Croall and Tyrer, 1998, p254.
^[88] Walker and Padfield, 1996, p240.
^[89] Davies, Croall and Tyrer, 1998, p325.
^[90] Elliott, Airs and Webb, 1999.
^[91] Walker and Padfield, 1996, pp245-8. England and Wales also have a Criminal Injuries Compensation Board (there is a Criminal Injuries Compensation Act 1995) which considers claims for compensation for bodily injuries resulting from crimes of violence which have been reported to the police, whether or not an offender is prosecuted.
^[92] Davies, Croall and Tyrer, 1998, p381.
^[93] Fox, 1995, pp21-9, Walker and Padfield, 1996, pp362-3.
^[94] Walker and Padfield, 1996, pp220-1.
^[95] Kelly, 1993, p71.
^[96] Duff and Hutton, 1999, pp171-2, 222-5.
^[97] Ibid, p172; Kelly, 1993, pp80-2; Nicholson, 1994, pp17-19.
^[98] Nicholson, 1994, p20; Kelly, 1993, p79.
^[99] Duff and Hutton, p182.
^[100] Ibid, pp172, 188.
^[101] Criminal Law (Sentencing) Act 1988 (SA), section 13(1). However section 13(2) states that the court is not obliged to inform itself as to the defendant’s means, but should consider any evidence on the subject that is placed before it.
^[102] Sentencing Act 1995 (NT), section 17(5); Penalties and Sentences Act 1992 (Qld), section 48(5); Sentencing Act 1991 (Vic), section 50(5).
^[103] Fox and Freiberg, 1999, pp378-9.
^[104] Ibid, pp379-80.
^[105] Klein, 1997, p215.
^[106] Tonry, 1996, p124; Klein,1997, p216; Hillsman, 1998, p9.
^[107] Hillsman, 1998, p3; Tonry and Hamilton, 1995, p20.
^[108] Klein, 1997, pp223-4.
^[109] Ibid, p229.
^[110] Ibid, p197.
^[111] Information on restitution is based on Klein, 1997, pp163-84.
^[112] Fox, 1995(a), pp15-21.
^[113] Cunningham and Griffiths, 1997, p211.
^[114] Ibid, p81.
^[115] Ibid, p87.
^[116] Ibid, pp87-8.
^[117] Tonry and Hatlestad, 1997, pp182-5.
^[118] Germany is a country where there is a public prosecutor independent of the police.
^[119] Tonry and Hamilton, 1995, pp50-5.
^[120] Tonry and Hatlestad, 1997, p178.
^[121] ‘Minor’ refers to non-serious criminal offences as opposed to offences in the Summary Offences Act 1981 that are dealt with by the minor offence procedure in the Summary Proceedings Act.
^[122] Law Commission, 1997, pp142-3.
^[123] See New Zealand Police Briefing Resource Document for Minister of Police, December 1999, pp94-5.
^[124] During 1993/94 there were hearing applications in respect of only 0.2% of reminder notices in respect of infringement fees which were filed in court. This indicates that the infringement notice scheme is a highly effective mechanism for keeping these minor offences out of the usual court processes.
^[125] A good illustration of this is soliciting and brothel keeping and minor offences of cannabis use.
^[126] The observation, for instance, that of the 948 sentenced cases of cannabis use that passed through the Auckland, Otahuhu, and Christchurch courts in 1994, 68% resulted in a monetary penalty, suggests most offenders are not subject to sanctions which address and attempt to correct the drug-taking behaviour. Transferring the savings from the court processes into educational and health strategies may prove to be more successful in discouraging people from pursuing drug-taking or helping those already involved in cannabis use.
^[127] In this regard it may be worth pointing out that with the South Australian cannabis expiation notice scheme the rate of payment has recently been only about 45%, which was a much lower rate than for traffic infringements (Department of Health and Family Services, Canberra, The Social Impacts of the Cannabis Expiation Notice Scheme in South Australia, 4 May 1998).
^[128] Under section 27 of the Criminal Justice Act 1985 the court, in determining the amount of any fine to be imposed, must take into account the means and responsibilities of the offender and the amount of reparation which has been ordered to be paid concurrent to the fine. This provision means it is likely that a court-imposed fine will be for a lesser amount than an infringement fee for a comparable offence.
^[129] In Australia, under the Victorian Road Safety Act 1986 (as amended in 1989) the registered owner of the vehicle (or the person nominated as the actual driver) acquires a criminal conviction in relation to drink-driving and excessive speed offences dealt with by infringement notices, even if the infringement penalty is paid (unless the person elects to have the allegation dealt with by a court and is found not guilty). (Fox, 1999, p14.)
^[130] Morris and Tonry, 1990, p143.
^[131] It did not apply to felonies and the judge retained discretion to choose a penalty other than a unit fine for any particular offender. The Staten Island pilot project did not become institutionalised as a regular programme because the state legislature refused to raise the (rather low) statutory fine maxima to a monetary amount that would allow the unit fine system to be applied properly to more affluent offenders.
^[132] Tonry and Hatlestad, 1997, p182.
^[133] The system was replaced by a simple provision requiring courts to take account of offenders’ financial circumstances before fixing fines (section 18 Criminal Justice Act 1991).
^[134] This view is from Dunbar and Langdon, 1998, p103.
^[135] This led some commentators to argue that allowances for food, housing, clothing, etc should have been varied by the courts according to different levels (or bands) of income, as people tend to take on commitments (a lot of which they will be locked in to) in accordance with their available income and lifestyle.
^[136] Walker and Padfield, 1996, pp232-3; Tonry and Hamilton, 1995, pp37-41.
^[137] Worrall, 1997, p38.
^[138] Penal Policy Review Committee, 1982, pp114-15.
^[139] Minutes of the Cabinet Social and Family Policy Committee, held on 20 April 1994 (SOC (94) M 3/4).
^[140] Minutes of the Cabinet Social and Family Policy Committee, held on 30 November 1994 (SOC (94) M 17/6).
^[141] Minutes of the Cabinet Social Policy Committee, held on 1 August 1995 (SPC (95) M 7/6).
^[142] New South Wales Law Reform Commission, 1996, pp52-4.
^[143] See, for example, Canadian research on this issue, i.e. Marinos, 1997.
^[144] Fox, 1995(a), pp292-4; and Fox, 1995(b).
^[145] On the back of a stationary vehicle offence infringement notice issued by the Wellington City Council the owner of the vehicle is advised that they may write to the Council if they wish to raise a matter concerning the circumstances of the offence for consideration by the Council. This is separate from denying liability and requesting a court hearing, or making submissions to the court.
^[146] Graycar, Nelson, and Palmer, 1999, p5.
^[147] From 1 July 1999 there has been a national autonomous prosecutions service within the Police, drawn from both police prosecutors and qualified non-sworn lawyers, which has responsibility for appearances in summary criminal and traffic prosecutions, (Lawtalk, Issue 521, 14 June 1999, pp1-2).
^[148] Brown, 1995, p14.
^[149] Smith and Norman, 1998, p8.
^[150] See Brown, 1995, pp6-7.
^[151] Section 9 Expiation of Offences Act 1996.
^[152] Restitution of property may be ordered in these three cases.
^[153] Penal Policy Review Committee, 1982, p131.
^[154] Galaway and Spier, 1992, p56.
^[155] Spier, 1997, pp141-57.
^[156] Galaway and Spier, 1992, pp197-202.
^[157] Hall, 1999, D/312.
^[158] Galaway and Spier, 1992, p60.
^[159] Spier, 1999, p100.
^[160] Galaway and Spier, 1992, p173.

^[162] Submission to the Ministry of Justice on the Sentencing Policy and Guidance Discussion Paper, by Judges of the High Court, dated 31 March 1998.
^[163] Hall, 1999, D/121-2.
^[164] Hall, 1999, D/130.
^[165] Hall, 1999, D/310.
^[166] Letter from Justice Jaine to Chief Judge Dame Sylvia Cartwright, 2 November 1992, forwarded to the Department of Justice.
^[167] Hall, 1999, D/311-1.
^[168] Galaway and Spier, 1992, p147.
^[169] Victims Task Force, 1993, pp21, 54, 139.
^[170] This outcome is based on a recovery rate from offenders of between 40% and 60% of the amount advanced each year. This may be too optimistic as currently payments of reparation received over a year represent only about 26% of total reparation imposed, although there are reasons (changes to legislation and administrative developments) for believing that this will improve.
^[171] Submission to Ministry of Justice on the Sentencing Policy and Guidance Discussion Paper, by Judges of the High Court, dated 31 March 1998.
^[172] Victims Task Force, 1993, pp21, 54, 139.
^[173] Morris and Tonry, 1990, p124.
^[174] Morris and Tonry, 1990 pp120-1.

New Zealand Penal Policy Papers

Speaking about cultural background at sentencing. Section 16 of the Criminal Justice Act 1985. Alison Chetwin; Tony Waldegrave; Kiri Simonsen [2000] NZPenalPP 1 (1 November 2000)