Creating criminal offences
This is a single section from Chapter 24. Read the full chapter here.
What is maximum penalty that 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 have regard to the maximum penalty available, the particular facts of the case, and the guidance and principles set out in the Sentencing Act 2002. The courts 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 possible offending. Legislation that sets minimum penalties is undesirable because it limits the courts’ ability to impose a sentence appropriate to the particular case. It may also be seen as contrary to the principle of the separation of power and judicial independence.
The maximum penalty affects the procedure that the courts 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.
If offending is in a commercial context, it may be appropriate to provide for a variable fine, such as a fine linked to the commercial benefit derived from the offending. Proposals for such penalties should be discussed with the Ministry of Justice at an early stage. Since those types of fines can result in very large, indeterminate penalties being imposed in a criminal context, there should be compelling justification for a commercial gain penalty.
References to precedents and similar offences must be made with care. Subtle differences may exist as to the elements of the offence, such as the required mental element, justifying a higher penalty in one context but not in another. This can be the case even if the same general subject is covered by both the existing offence and the proposed offence, or the harm to be addressed is similar. However, penalties for some offences may be unduly low simply because of the age of the Act.
Basing proposed offences on overseas legislation can be particularly problematic. The whole statutory context, common law (particular legal terms may be interpreted differently in different countries), and sentencing framework need to be considered before taking an offence from another jurisdiction and proposing it for inclusion in New Zealand law.