New Zealand Acts

SENTENCING (REINSTATING THREE STRIKES) AMENDMENT ACT 2024 - SECT 7

7 New sections 86J to 86X and cross-heading inserted

Before the cross-heading above section 87 , insert:

86J Interpretation

In this section and in sections 86K to 86X , unless the context otherwise requires,—  
"qualifying offence" means an offence against any of the provisions of the Crimes Act 1961 listed in Schedule 1AB     
"qualifying sentence" means,—  

a) for a stage-1 offence, a sentence that is—

i) a determinate sentence of imprisonment of more than 12 months; or

ii) an indeterminate sentence of imprisonment:

b) for a stage-2 offence or stage-3 offence, a sentence that is—

i) a determinate sentence of imprisonment of more than 24 months; or

ii) an indeterminate sentence of imprisonment

"record of first warning" , in relation to an offender, means a record of a warning that the offender has under section 86K(4) or 86KA(4) (including, without limitation, a relevant reactivated warning under clause 21 of Schedule 1AA )  
"record of subsequent warning" , in relation to an offender, means a record of a warning that the offender has under section 86L(4) (including, without limitation, a relevant reactivated warning under clause 21 of Schedule 1AA )    
"stage-1 offence" means a qualifying offence committed by an offender when the offender—  

a) did not have a record of first warning; and

b) was at least 18 years old

"stage-2 offence" means a qualifying offence committed by an offender when the offender—

a) had a record of first warning (in relation to 1 or more offences); but

b) did not have a record of subsequent warning

"stage-3 offence" means a qualifying offence committed by an offender when the offender had a record of subsequent warning (in relation to 1 or more offences).

86K Warnings: first warning to be given if qualifying sentence imposed for stage-1 offence

1 This section applies if—

a) a court imposes a qualifying sentence on an offender for a stage-1 offence (including on an appeal, but only if the offender does not have a record of first warning in relation to the offence); and

b) the offender is before the court when it imposes the sentence.

2 This section also applies if an offender appears before a court under section 86M(2) or (6) in relation to a stage-1 offence.

3 The court must—

a) warn the offender of the possible consequences if the offender receives a further qualifying sentence for any qualifying offence committed after that warning (whether or not that further qualifying offence is different in kind from any qualifying offence for which a sentence of imprisonment is being, or has been, imposed on the offender); and

b) make an entry in the permanent court record, in relation to the stage-1 offence, to the effect that the offender has been warned under paragraph (a).

4 On and after the making of the entry under subsection (3)(b), the offender has, in relation to the stage-1 offence, a record of first warning (subject to section 86U(2) ).

86KA Warnings: first warning to be given if sentence of imprisonment of between 12 and 24 months imposed for stage-2 offence

1 This section applies if—

a) a court imposes a determinate sentence of imprisonment of more than 12 months but not more than 24 months on an offender for a stage-2 offence (including on an appeal, but only if the offender does not have a record of first warning or a record of subsequent warning in relation to the offence); and

b) the offender is before the court when it imposes the sentence.

2 This section also applies if an offender appears before a court under section 86M(2) or (6) in relation to a stage-2 offence for which a determinate sentence of imprisonment of more than 12 months but not more than 24 months has been imposed on the offender.

3 The court must—

a) warn the offender of the possible consequences if the offender subsequently receives a qualifying sentence for any qualifying offence committed after that warning (whether or not that qualifying offence is different in kind from any qualifying offence for which a sentence of imprisonment is being, or has been, imposed on the offender); and

b) make an entry in the permanent court record, in relation to the stage-2 offence, to the effect that the offender has been warned under paragraph (a).

4 On and after the making of the entry under subsection (3)(b), the offender has, in relation to the stage-2 offence, a record of first warning (subject to section 86U(3) ).

86L Warnings: subsequent warning to be given if qualifying sentence imposed for stage-2 offence or stage-3 offence

1 This section applies if—

a) a court imposes a qualifying sentence on an offender for a stage-2 offence or a stage-3 offence (including on an appeal, but only if the offender does not have a record of subsequent warning in relation to the offence); and

b) the offender is before the court when it imposes the sentence.

2 This section also applies if an offender appears before a court under section 86M(2) or (6) in relation to—

a) a stage-2 offence for which a qualifying sentence has been imposed on the offender; or

b) a stage-3 offence.

3 The court must—

a) warn the offender of the possible consequences if the offender receives a further qualifying sentence for any qualifying offence committed after that warning (whether or not that further qualifying offence is different in kind from any qualifying offence for which a sentence of imprisonment is being, or has been, imposed on the offender); and

b) make an entry in the permanent court record, in relation to the stage-2 offence or the stage-3 offence, to the effect that the offender has been warned under paragraph (a).

4 On and after the making of the entry under subsection (3)(b), the offender has, in relation to the stage-2 offence or the stage-3 offence, a record of subsequent warning (subject to section 86U(2) ).

86M Warnings: administration

1 A warning that a court is required to give to an offender under section 86K, 86KA, or 86L must be given to the offender at the time of sentencing if the offender is before the court at that time.

2 However, if a court, at the time of sentencing, omits to give a warning required under section 86K, 86KA, or 86L to an offender who was before the court at that time, the court must,—

a) if the court is the court that first sentenced the offender for the relevant qualifying offence,—

i) as soon as is reasonably practicable after becoming aware of the omission, issue a summons to bring the offender before the court; and

ii) if the offender fails to appear before the court in answer to the summons, as soon as is reasonably practicable after that failure, issue a warrant to arrest the offender to bring them before the court; or

b) if the court is not the court that first sentenced the offender for the relevant qualifying offence, as soon as is reasonably practicable after becoming aware of the omission, remit the proceeding to the court that first sentenced the offender for the relevant qualifying offence for a warning to be given to the offender.

3 Subsection (5) applies if,—

a) on an appeal, a court quashes or sets aside a sentence, not being a sentence for which a warning was required to be given under section 86K, 86KA, or 86L , imposed on an offender for a qualifying offence and imposes another sentence in substitution for it; and

b) the offender is not before the court at the time that it imposes the substituted sentence; and

c) the substituted sentence is a sentence for which the court would have been required to give the offender a warning under section 86K, 86KA, or 86L if the offender had been before the court at that time.

4 Subsection (5) also applies if,—

a) on an appeal, a court quashes or sets aside a determinate sentence of imprisonment of more than 12 months but not more than 24 months imposed on an offender for a stage-2 offence and imposes a qualifying sentence in substitution for it; and

b) the offender is not before the court at the time that it imposes the substituted sentence.

5 If this subsection applies, the court that heard the appeal must remit the proceeding to the court that first sentenced the offender for the relevant offence for a warning to be given to the offender.

6 A court to which a proceeding is remitted under subsection (2) or (5) must,—

a) as soon as is reasonably practicable after the proceeding is remitted to it, issue a summons to bring the offender before the court; and

b) if the offender fails to appear before the court in answer to the summons, as soon as is reasonably practicable after that failure, issue a warrant to arrest the offender to bring them before the court.

7 If an offender appears before a court under subsection (2) or (6), the court must, despite subsection (1), when the offender so appears, give the warning and make the entry required under section 86K, 86KA, or 86L (whichever applies).

8 A Judge need not use a particular form of words in giving a warning required under section 86K, 86KA, or 86L .

86N Notice of possible consequences of receiving subsequent qualifying sentence for qualifying offence

1 A court that gives an offender a warning required under section 86K, 86KA, or 86L must also give the offender a written notice that sets out the possible consequences if the offender subsequently receives a qualifying sentence for any qualifying offence committed after the giving of the warning.

2 The written notice may be given at the time, or as soon as is reasonably practicable after, the warning is given.

3 Failure to give a written notice in accordance with this section does not affect the validity of—

a) any sentence imposed, order made, or warning given by a court; or

b) any record of first warning or record of subsequent warning.

86O Stage-2 offences: loss of parole eligibility when determinate sentence of imprisonment of more than 24 months imposed for offence other than murder

1 This section applies if a court imposes a determinate sentence of imprisonment of more than 24 months on an offender for a stage-2 offence other than murder.

2 The court must order that the offender serve the sentence without parole unless the court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to make the order (see section 86T ).

3 If, but for the application of this section, the court would have ordered under section 86 that the offender serve a minimum period of imprisonment in relation to the sentence imposed for the stage-2 offence, the court must state, with reasons, the minimum period of imprisonment that it would have imposed.

4 If, but for the application of this section, the court would not have made an order under section 86 , the court must state that it would not have made such an order.

86P Stage-2 offences: imposition of minimum period of imprisonment when life imprisonment imposed for murder

1 This section applies if—

a) a court imposes a sentence of imprisonment for life on an offender for a murder that is a stage-2 offence; and

b) the court does not make an order under section 103(2A) requiring the offender to serve the sentence without parole.

2 The court must, unless the court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to do so (see section 86T ), make an order imposing a minimum period of imprisonment of at least—

a) 15 years, if the offender pleaded guilty to the murder and none of the circumstances set out in section 104(1A) apply:

b) 17 years, in any other case.

3 If the court makes an order under subsection (2), the court must state, with reasons, the minimum period of imprisonment that it would, but for the application of this section, have imposed.

4 If the court does not make an order under subsection (2), the court must give reasons for not doing so.

86Q Stage-3 offences: transfer of proceedings to High Court

1 A proceeding against a defendant charged with a stage-3 offence must be transferred to the High Court when the proceeding is adjourned for trial or trial callover under section 57 of the Criminal Procedure Act 2011 or, as the case may be, under section 36 of that Act, and the proceeding from that point, including the trial, must be in the High Court.

2 Only the High Court, or the Court of Appeal or the Supreme Court on an appeal, and no other court, may sentence an offender for a stage-3 offence.

3 Subsections (1) and (2) override any legislation to the contrary.

86R Stage-3 offences: imposition of minimum sentence and loss of parole eligibility for offence other than murder

1 This section applies if a court would, in the absence of this section, have imposed a qualifying sentence on an offender for a stage-3 offence other than murder.

2 The court must, unless the court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to do so (see section 86T ), sentence the offender to imprisonment for—

a) the maximum term of imprisonment prescribed for the offence, if—

i) the offence is not manslaughter; and

ii) the offender did not plead guilty to the offence:

b) at least 80% of the maximum term of imprisonment prescribed for the offence, if—

i) the offence is not manslaughter; and

ii) the offender pleaded guilty to the offence:

c) a term of at least 10 years, if—

i) the offence is manslaughter; and

ii) the offender did not plead guilty to the offence:

d) a term of at least 8 years, if—

i) the offence is manslaughter; and

ii) the offender pleaded guilty to the offence.

3 When the court sentences the offender for the offence, the court must order that the offender serve the sentence without parole unless the court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to make the order (see section 86T ).

4 If the court does not make an order under subsection (3), the court must give reasons for not doing so.

5 If the court sentences the offender to at least the relevant minimum term of imprisonment set out in subsection (2)(a) to (d), the court must state, with reasons, the sentence and the minimum period of imprisonment (if any) that it would, but for the application of this section, have imposed.

6 Despite subsection (2), this section does not preclude the court from imposing, under section 87 , a sentence of preventive detention on the offender and, if the court imposes such a sentence on the offender,—

a) subsections (2) to (4) do not apply; and

b) the minimum period of imprisonment that the court imposes on the offender under section 89(1) must not be less than the term of imprisonment that the court would have imposed under subsection (2), unless the court is satisfied that, given the circumstances of the offence and the offender, the imposition of that minimum period would be manifestly unjust (see section 86T ).

7 If, in reliance on subsection (6)(b), the court imposes a minimum period of imprisonment that is less than the term of imprisonment that the court would have imposed under subsection (2), the court must give reasons for doing so.

86S Stage-3 offences: imposition of minimum period of imprisonment when life imprisonment imposed for murder

1 This section applies if—

a) a court imposes a sentence of imprisonment for life on an offender for a murder that is a stage-3 offence; and

b) the court does not make an order under section 103(2A) requiring the offender to serve the sentence without parole.

2 When the court sentences the offender for the murder, the court must, unless the court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to do so (see section 86T ), make an order imposing a minimum period of imprisonment of at least—

a) 18 years, if the offender pleaded guilty to the murder:

b) 20 years, in any other case.

3 If the court makes an order under subsection (2), the court must state, with reasons, the minimum period of imprisonment that it would, but for the application of this section, have imposed.

4 If the court does not make an order under subsection (2), the court must give reasons for not doing so.

86T Guidance on application of manifestly unjust exception in certain provisions

1 This section applies to a court when determining whether it would be manifestly unjust to impose a sentence, or make an order, under section 86O(2), 86P(2), 86R(2), (3), or (6), or 86S(2) .

2 The court must give particular consideration to—

a) denouncing the conduct in which the offender was involved; and

b) deterring the offender or other persons from committing the same or a similar offence; and

c) protecting the community from the offender.

3 The court must not determine that imposing the sentence or making the order would be manifestly unjust merely because—

a) any 1 or more of the mitigating factors listed in section 9(2) are applicable in the case; or

b) it would be disproportionate, unless it would be grossly disproportionate.

4 Nothing in subsection (3) prevents the court from taking into account the mitigating factors listed in section 9(2) , to the extent that they are applicable in the case, when determining whether imposing the sentence or making the order would be manifestly unjust.

86U Continuing effect of warnings

1 An offender continues to have a record of first warning or a record of subsequent warning in relation to an offence regardless of whether the offender has served or otherwise completed the sentence imposed on the offender for the offence to which the record relates.

2 Despite subsection (1), an offender ceases to have a record of first warning in relation to a stage-1 offence or a record of subsequent warning in relation to a stage-2 offence or a stage-3 offence if—

a) a court, on an appeal,—

i) quashes or sets aside the conviction for the offence to which the relevant record relates; or

ii) quashes or sets aside the sentence imposed for the offence to which the relevant record relates and does not impose a qualifying sentence in substitution for it; or

b) a court cancels the sentence imposed for the offence to which the relevant record relates and substitutes a sentence of home detention under section 80K(4) ; or

c) a court imposes a new sentence under section 180 of the Criminal Procedure Act 2011 (which relates to the correction of erroneous sentences) for the offence to which the relevant record relates and the new sentence is not a qualifying sentence; or

d) the offender is—

i) granted a free pardon for the offence to which the relevant record relates; or

ii) because of having fulfilled the conditions of a conditional pardon, not required to serve a qualifying sentence for the offence to which the relevant record relates.

3 Despite subsection (1), an offender ceases to have a record of first warning in relation to a stage-2 offence if—

a) a court, on an appeal,—

i) quashes or sets aside the conviction for the offence to which the record relates; or

ii) quashes or sets aside the sentence imposed for the offence to which the record relates and does not impose a determinate sentence of imprisonment of more than 12 months but not more than 24 months in substitution for it; or

b) a court cancels the sentence imposed for the offence to which the record relates and substitutes a sentence of home detention under section 80K(4) ; or

c) a court imposes a new sentence under section 180 of the Criminal Procedure Act 2011 for the offence to which the record relates and the new sentence is not a determinate sentence of imprisonment of more than 12 months but not more than 24 months; or

d) the offender is—

i) granted a free pardon for the offence to which the record relates; or

ii) because of having fulfilled the conditions of a conditional pardon, not required to serve a sentence of imprisonment of more than 12 months for the offence to which the record relates.

4 If an offender ceases to have a record of subsequent warning in relation to a stage-2 offence because subsection (2)(a)(ii) applies and the court that heard the appeal imposes a determinate sentence of imprisonment of more than 12 months but not more than 24 months in substitution for the quashed or set aside sentence, then—

a) that court must order that the record of subsequent warning be replaced by a record of first warning; and

b) the replacement record of first warning is treated as having taken effect on the date on which the record of subsequent warning took effect.

5 If an offender continues to have 1 (but not more than 1) record of subsequent warning after every record of first warning that the offender had has ceased, then—

a) the appropriate court must order that the record of subsequent warning be replaced by a record of first warning; and

b) that replacement record of first warning is treated as having taken effect on the date on which the record of subsequent warning took effect.

6 If an offender continues to have more than 1 record of subsequent warning after every record of first warning that the offender had has ceased, then—

a) the appropriate court must order that each record of subsequent warning that took effect on the earliest date on which the offender had a record of subsequent warning be replaced by a record of first warning; and

b) those replacement records of first warning are treated as having taken effect on that date.

7 In this section and in section 86V ,
"appropriate court" means,—

a) in the case of an offender who ceases, under subsection (2)(a) or (3)(a), to have a record of first warning or a record of subsequent warning in relation to an offence, the court that heard the appeal:

b) in the case of an offender who ceases, under subsection (2)(b) or (3)(b), to have a record of first warning in relation to an offence, the court that cancelled the sentence and substituted a sentence of home detention:

c) in the case of an offender who ceases, under subsection (2)(c) or (3)(c), to have a record of first warning or a record of subsequent warning in relation to an offence, the court that imposed the new sentence:

d) in the case of an offender who ceases, under subsection (2)(d) or (3)(d), to have a record of first warning or a record of subsequent warning in relation to an offence, the court that first sentenced the offender for the offence.

86V How cessation of record affects later sentences

1 This section applies if,—

a) under section 86U , an offender ceases to have a record of first warning or a record of subsequent warning or both (the previous record); and

b) the offender continues to be subject to a qualifying sentence that was imposed on the offender for a qualifying offence committed when the offender had the previous record (a later qualifying sentence).

2 If the appropriate court is the High Court, the appropriate court must—

a) take the actions described in subsection (5) that are applicable to the case; or

b) remit the matter to the court that imposed the later qualifying sentence with a direction to take those actions.

3 If the appropriate court is not the High Court, the appropriate court must, unless the later qualifying sentence was imposed by a higher court than the appropriate court,—

a) take the actions described in subsection (5) that are applicable to the case; or

b) remit the matter to the court that imposed the later qualifying sentence with a direction to take those actions.

4 If the appropriate court is the District Court and the later qualifying sentence was imposed by a higher court, the High Court must, on the application of the offender, take the actions described in subsection (5) that are applicable to the case.

5 The actions are as follows:

a) if the later qualifying sentence would not have been imposed but for the previous record, the court must set aside the later qualifying sentence and replace it with a sentence that the court would have imposed had the offender not been subject to the previous record:

b) if any order relating to the later qualifying sentence would not have been made but for the previous record, the court must cancel the order and, where appropriate, replace it with an order that the court would have made had the offender not been subject to the previous record:

c) if the court considers it just to make any consequential orders, the court must make those orders.

86W Appeal against orders relating to imprisonment

For the purposes of Part 6 of the Criminal Procedure Act 2011 , an order under section 86O(2), 86P(2), 86R(3), or 86S(2) is a sentence.

86X Sections 86K to 86T prevail over inconsistent provisions

1 This section applies to a provision—

a) in sections 86K to 86T ; and

b) that is inconsistent with another provision in this Act or in the Parole Act 2002 .

2 The provision prevails over the other provision, to the extent of the inconsistency.