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Creating criminal offences
This is a single section from Chapter 21. Read the full chapter here.
What range of penalties will apply?
Legislation must state the maximum fine and/or term of imprisonment.
Once legislation comes into force, the decision as to precisely what penalty will be imposed in a particular case rests solely with the courts. When imposing a sentence, the courts will have regard to the range of penalties available, the particular facts of the case, and the guidance and principles set out in the Sentencing Act 2002. The court will also have regard to any additional sentencing guidance provided by the legislation and higher courts.
The maximum penalty should not be disproportionately severe, but should reflect the worst case of offending. Legislation that sets minimum penalties is undesirable, as it limits the courts’ ability to impose a sentence appropriate to the particular case and is contrary to the principle of judicial independence.
The maximum penalty will impact upon the procedure that the courts will adopt, including whether the High Court can hear the case and whether the defendant has the right to elect trial by jury. Section 6 of the Criminal Procedure Act 2011 provides more detail as to how the maximum penalty will affect the procedure that is adopted.
Where offending is in a commercial context, it may be appropriate to provide for a variable fine such as “three times the commercial gain from the offending”. Proposals for such penalties should be discussed with the Ministry of Justice and the Ministry of Business, Innovation and Employment (“MBIE”) at an early stage.
Reference to precedents and similar offences must be done with care. While there will be a hierarchy of penalties in a particular area (such as driving offences causing injury or death), New Zealand has not adopted the inflation-adjusted “penalty unit” system found in many other jurisdictions. Therefore, when comparing offences in different statutes, the penalties may be unduly low simply because of the age of the statute, and not provide an accurate guide.