Ministry of Justice: 2001: Sentencing and Parole Reform Bill

(a) to set out the purposes for which sentences may be imposed on offenders; and

(b) to promote those purposes, and aid in the public's understanding of sentencing practices, by providing principles and guidelines to be applied by courts in sentencing offenders; and

(d) to recognise the interests of victims of crime and provide for reparation to those victims.

(1) In this Part and Part 2 , unless the context otherwise requires,- commencement date means the date specified in section 2

community work centre means a community work centre established under section 126 of the Criminal Justice Act 1985

counsel in relation to any person, means a person enrolled as a barrister and solicitor of the High Court of New Zealand who is representing that person in any proceedings

determinate sentence of imprisonment means a sentence of imprisonment other than an indeterminate sentence of imprisonment

(a) a practising psychiatrist who is registered as a medical practitioner under the Medical Practitioners Act 1995; or

home detention means the detention under a sentence of imprisonment, in an approved residence (including a marae), of an offender who is detained on home detention under section 190 of the Sentencing and Parole Reform act 2001

hospital means a hospital within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992

indeterminate sentence of imprisonment means life imprisonment or a sentence of preventive detention

minimum period of imprisonment means the period of imprisonment that the court has, under section 81 or section92 , ordered that an offender must serve before he or she can be released under subpart 2 of Part 3

offender includes a person who is dealt with or is liable to be dealt with for non-payment of a sum of money, disobedience of a court order, or contempt of court

parole means release from imprisonment by the New Zealand Parole Board under subpart 2 of Part 3

penal institution means a penal institution established under the Penal Institutions Act 1954

probation area means an area designated by the chief executive of the Department of Corrections for the administration of release conditions, community-based sentences, or orders

probation officer means a person appointed to be, or designated as, a probation officer under section 124 of the Criminal Justice Act 1985; and includes a person exercising only some of the functions or powers of a probation officer under that Act

(a) includes a determinate sentence of imprisonment and an indeterminate sentence of imprisonment; but

(b) does not include a term of imprisonment imposed, whether by committal, sentence, or order, for-

(i) non-payment of a sum of money; or

(ii) disobedience of a court order; or

(iii) contempt of court

staff member of a penal institution means a staff member within the meaning of section 2 of the Penal Institutions Act 1954

Trial Judge, in relation to a District Court, means a Judge who holds a warrant under section 28B of the District Courts Act 1947 to conduct trials on indictment

victim has the same meaning as it has in section 2 of the Victims of Offences Act 1987.

(a) an offender is subject to a sentence of imprisonment if the offender is serving that sentence or is liable to commence or to resume serving it at some time in the future:

(b) an offender is subject to a sentence of community work from the date that the sentence commences in accordance with section 70 until the date that it expires in accordance with that section.

(1) Except as provided in subsection (2), this Part and Part 2 bind the Crown.

(2) this Part and Part 2 do not apply to proceedings under the Armed Forces Discipline Act 1971, or to proceedings on appeal from any decision under that Act, except as expressly provided in that Act.

(3) Subject to section 6 and sections 137 to 148,this Part and Part 2 apply to offences committed before or after the commencement date.

6 Penal enactments not to have retrospective effect to disadvantage of offender (1) An offender has the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty.

7 Purposes of sentencing The purposes for which a sentence may be imposed on an offender are-

(a) to hold the offender accountable for harm done to the victim and the community by the offending; or

(b) to promote in the offender a sense of responsibility for, and an acknowledgment of, that harm; or

(f) to deter the offender or other persons from committing the same or a similar offence; or

(a) should take into account the gravity of the offending in the particular case, including the degree of culpability of the offender:

(b) should take into account the seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences:

(c) should impose the maximum penalty prescribed for the offence only if the offending is within the most serious of cases for which that penalty is prescribed:

(d) should impose a penalty near to the maximum pre-scribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed:

(e) should take into account the general desirability of consistency with appropriate sentencing levels in respect of similar offenders committing similar offences in similar circumstances:

(f) should sentence the offender to the least restrictive penalty that is appropriate in the circumstances:

(g) should take into account any particular circumstances of the offender that mean that a sentence that would otherwise be appropriate would, in the particular instance, be disproportionately severe:

(h) should ensure that a sentence with a partly or wholly rehabilitative purpose is appropriate to the offender's personal, family, whanau, community, or cultural background:

(i) should take into account any outcomes of restorative justice processes that have occurred, or that the court is satisfied are likely to occur, in relation to the particular case (including, without limitation, anything referred to in section 10 .

(1) The aggravating factors that may be taken into account when sentencing an offender include-

(a) whether the offence involved actual or threatened violence or the actual use of, or threat to use, a weapon:

(b) whether the offence involved unlawful entry into a dwelling place:

(d) the extent of any loss, damage, or harm resulting from the offence:

(e) particular cruelty in the commission of the offence:

(f) whether the offender was in a position of trust or authority in relation to the victim:

(g) vulnerability of the victim due, for example, to age or infirmity:

(h) premeditation on the part of the offender and, if so, the level of premeditation involved:

(i) the number, seriousness, date, relevance, and nature of any previous convictions of the offender.

(2) The mitigating factors that may be taken into account when sentencing an offender include-

(a) the age of the offender:

(b) whether and when the offender pleaded guilty:

(d) a limited involvement in the offence on the offender's part:

(e) any diminished intellectual capacity or understanding on the offender's part:

(f) any remorse shown by the offender, including any apology made to the victim:

(g) any evidence of the offender's previous good character.

(3) Despite subsection (2)(e) , the court must not take into account by way of mitigation the fact that the offender was, at the time of committing the offence, affected by the voluntary consumption or use of alcohol or any drug or other substance (other than a drug or other substance used for bona fide medical purposes).

(a) prevents the court from taking into account any other aggravating or mitigating factor that the court thinks fit;

(b) implies that a factor referred to in those subsections must be given greater weight than any other factor that the court might take into account.

10 Court may take into account offer, agreement, response, or measure to make amends

(a) any offer of amends, whether financial or by means of the performance of any work or service, made by or on behalf of the offender to the victim:

(b) any agreement between the offender and the victim as to how the offender can remedy the wrong, loss, or damage caused by the offender:

(d) any measures taken or proposed to be taken by the offender or the family, whanau, or family group of the offender to-

(i) make compensation to any victim of the offending or family, whanau, or family group of the victim; or

(ii) apologise to any victim of the offending or family, whanau, or family group of the victim; or

(iii) otherwise make good the harm that has occurred.

(2) In deciding whether and to what extent any offer, agreement, response, or measure should be taken into account, the court may take into account whether or not it has been accepted by the victim as expiating or mitigating the wrong.

(3) If a court determines that, despite an offer, agreement, response, or measure referred to in subsection (1) , it is appropriate to impose a sentence, it may take that offer, agreement, response, or measure into account when determining the appropriate sentence for the offender.

(4) Without limiting any other powers of a court to adjourn, in any case contemplated by this section a court may adjourn the proceedings until-

(a) compensation has been paid; or

(b) the performance of any work or service has been completed; or

(d) any measure proposed under subsection (1)(d) . has been completed.

General provisions about imposition of reparation, fines, community-based sentences, and imprisonment

(1) If a court is lawfully entitled under Part 2 to impose a sentence of reparation, it must impose it unless it is satisfied that the sentence would result in undue hardship for the offender or the dependants of the offender, or that any other special circumstances would make it inappropriate.

(2) A sentence of reparation may be imposed, in relation to any particular offence, on its own or in addition to any other sentence.

(3) If a court does not impose a sentence of reparation in a case where it is lawfully entitled to do so, it must give reasons for not doing so. Compare: 1985 No 120 s 11

(1) If a court is lawfully entitled under this or any other enactment to impose a fine in addition to, or instead of, any other sentence, the court must consider a fine as the appropriate sentence for the particular offence unless-

(a) the court is satisfied that the application of any of the principles in section 8 to the particular case make a fine inappropriate; or

(b) any provision applicable to the particular offence in this or any other enactment provides a presumption in favour of imposing any other sentence or requires the court to impose any other sentence; or

(c) the court is satisfied that a fine, on its own or in addition to a sentence of reparation, would otherwise be clearly inadequate in the circumstances.

(2) Even if it would be appropriate in accordance with subsection (1) . to impose a fine, a court may nevertheless decide not to impose a fine if it is satisfied that the offender does not or will not have the means to pay it.

(a) sentence the offender to make reparation alone; or

(b) if it is lawfully entitled to do so, impose a community-based sentence; or

(1) If a court is lawfully entitled under this or any other enactment to impose a community-based sentence or a fine, or both, it may only impose a community-based sentence if it is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by imposing a fine.

(2) This section is subject to section 12(2) and any provision in any other enactment that expressly-

(a) provides a presumption in favour of or against imposing a particular sentence in relation to a particular offence; or

(b) requires a court to impose a particular sentence in relation to a particular offence.

(1) When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.

(2) The court must not impose a sentence of imprisonment unless it is satisfied that,-

(a) if the purpose or purposes for which sentence is being imposed include all or any of the purposes in section 7(e) to (g) , those purposes cannot be achieved by a non-custodial sentence; and

(b) no other sentence would be consistent with the application of the principles in section 8 to the particular case.

(3) This section is subject to any provision in this or any other enactment that expressly-

(a) provides a presumption in favour of or against imposing a sentence of imprisonment in relation to a particular offence; or

(b) requires a court to impose a sentence of imprisonment in relation to a particular offence.

15 Imprisonment may be imposed if offender unlikely to comply with other sentences

Nothing in this Part limits the discretion of a court to impose a sentence of imprisonment on an offender if the court is satisfied on reasonable grounds that the offender is unlikely to comply with any other sentence that it could lawfully impose and that would otherwise be appropriate.

(1) No court may impose a sentence of imprisonment on an offender in respect of a particular offence, other than a purely indictable offence, if, at the time of the commission of the offence, the offender was under the age of 17 years.

(2) In subsection (1), purely indictable offence means any indictable offence within the meaning of section 2( 1) of the Summary Proceedings Act 1957, other than an offence for which, under section 6 of that Act, proceedings may be taken in a summary way in accordance with that Act. Compare: 1985 No 120 s 8

(1) Unless the particular enactment expressly provides otherwise, no court may, in respect of any particular offence, impose on an offender both a fine and a sentence of imprisonment.

(2) No court may, in respect of any particular offence, or in respect of 2 or more offences, impose on an offender both a community-based sentence and a sentence of imprisonment.

(3) If an offender who is before a court for sentence is already detained under a sentence of imprisonment imposed on an earlier occasion, the court must not impose on the offender any kind of community-based sentence.

(1) This section applies to the imposition on an offender of a combination of sentences that includes a community-based sentence or sentences in respect of a particular offence.

(2) No court may impose both a fine and a sentence of community work, but, subject to this section, may impose-

(a) a sentence of supervision and a sentence of community work; or

(b) a sentence of supervision and a fine.

(3) A court may only impose both a sentence of supervision and a fine if the court is satisfied that either of those sentences, if imposed individually, would not be in accordance with-

(a) the purpose or purposes for which sentence is imposed; or

(b) the application of the principles in section 8 to the particular case.

(4) A court may only impose both a sentence of supervision and a sentence of community work if the court is satisfied that-

a) either of those sentences, if imposed individually, would not be in accordance with-

(i) the purpose or purposes for which sentence is imposed; or

(ii) the application of the principles in section 8 to the particular case; and

(b) imposing a sentence of supervision and a fine would not be in accordance with-

(i) the purpose or purposes for which sentence is imposed; or

(ii) the application of the principles in section 8 to the particular case; and

(c) a sentence of community work is appropriate, but the offender requires the imposition of the standard conditions or any of the special conditions available under a sentence of supervision to-

(i) address the causes of his or her offending; or

(ii) ensure that he or she completes the sentence of community work.

(a) empowers a court to impose any sentence that it would not otherwise be empowered to impose; or

(b) limits the power of a court to make any order that it is empowered to make on the conviction of any person, whether under this or any other enactment.

No sentence of any kind may be imposed cumulatively on an indeterminate sentence of imprisonment.

(1) A court may adjourn the proceedings in any case after the offender has been found guilty or has pleaded guilty and before the offender has been sentenced or otherwise dealt with, for the purpose of enabling inquiries to be made or of determining the most suitable method of dealing with the case.

(2) If any case is adjourned under this section or under section 10(4) , a Judge or Justice or Community Magistrate having jurisdiction to deal with offences of the same kind (whether or not the same Judge or Justice or Community Magistrate before whom the case was heard) may, after inquiry into the circumstances of the case, sentence or otherwise deal with the offender for the offence to which the adjournment relates.

(1) If an offender who is charged with an offence punishable by imprisonment is found guilty or pleads guilty, the court may direct a probation officer to provide a report to the court under subsection (2)

(a) information regarding the personal, family, whanau, community, and cultural background, and social circumstances of the offender:

(b) information regarding the factors contributing to the offence, and the rehabilitative needs of the offender:

(d) recommendations on the appropriate sentence or other disposition of the case, taking into account the risk of further offending by the offender:

(e) in the case of a proposed sentence of supervision, recommendations on the appropriate conditions of a sentence of supervision:

(f) in the case of a proposed sentence of supervision involving 1 or more programmes,-

(i) a report on the programme or programmes, including a general description of the conditions that the offender will have to abide by; and

(ii) confirmation that the report has been made avail-able to the offender; and

(iii) confirmation that the offender consents to any medical treatment or surgical procedure involved in the programme:

(g) in the case of a proposed sentence of community work, information regarding the availability of community work of a kind referred to in section 58 in the area in which the offender will reside.

(3) The court must not direct the preparation of a report under subsection (1) on any aspects of the personal characteristics or personal history of an offender if a report covering those aspects is readily available to the court and there is no reason to believe that there has been any change of significance to the court since the report was prepared.

(4) On directing the preparation of a report under subsection (1) , the court may indicate to the probation officer the type of sentence or other mode of disposition that the court is considering, and may also give any other guidance to the probation officer that will assist the officer to prepare the report.

(5) If a court has directed the preparation of a report under subsection (1) , the probation officer charged with the preparation of the report may seek the further directions of the court on-

(a) any particular item of information sought by the court; or

(b) any alternative sentence or other mode of disposition that may be considered by the court if it appears that the sentence or other mode of disposition under consideration is inappropriate.

24 Offender may request court to hear person on personal, family, whanau, community, and cultural background of offender

(1) If an offender appears before a court for sentencing, the offender may request the court to hear any person or persons called by the offender to speak on-

(a) the personal, family, whanau, community, and cultural background of the offender:

(b) the way in which that background may have related to the commission of the offence:

(c) any processes that have been tried to resolve, or that are available to resolve, issues relating to the offence, involving the offender and his or her family, whanau, or community and the victim or victims of the offence:

(d) how support from the family, whanau, or community may be available to help prevent further offending by the offender:

(e) how the offender's background, or family, whanau, or community support may be relevant in respect of possible sentences.

(2) The court must hear a person or persons called by the offender under this section on any of the matters specified in subsection (1) unless the court is satisfied that there is some special reason that makes this unnecessary or inappropriate.

(3) If the court declines to hear a person called by the offender under this section, the court must give reasons for doing so.

(4) Without limiting any other powers of a court to adjourn, the court may adjourn the proceedings to enable arrangements to be made to hear a person or persons under this section.

(5) If an offender does not make a request under this section, the court may suggest to the offender that it may be of assistance to the court to hear a person or persons called by the offender on any of the matters specified in subsection (1) .

25 Disclosure of reports (1) If a written report is submitted to a court, whether under section 23 or section 30 or otherwise, a copy of the report must be given,-

(b) if the offender is represented, to the offender's counsel, whether or not an order is made under subsection (2) .

(2) The court may order that any part of the report not be disclosed to the offender if it is of the opinion that the disclosure would be likely to prejudice the offender's physical or mental health or endanger the safety of any person.

(3) The offender or his or her counsel may tender evidence on any matter referred to in any report, whether written or oral, that is submitted to a court under section 23 or section 30 .

(4) Failure to give or show a copy of any report in accordance with this section does not affect the validity of the proceedings

in a court or of any order made or sentence imposed by a court. Compare: 1985 No 120 s 17

26 Access to reports (1) The following persons may have access to any report submitted to a court under section 23 or section 30 , and held by the court:

(a) the Superintendent or other person in charge of a penal institution to which the offender is sent, whether during any proceedings or in accordance with any sentence imposed:

(b) the Superintendent of a hospital to which the offender is remanded or committed:

(c) an officer or employee of the Department of Corrections or the Department for Courts, or a staff member of a penal institution, who requires access to the report for the purposes of his or her official duties:

(d) a member of the New Zealand Parole Board:

(e) the prosecutor appearing on sentence or on appeal against sentence.

(2) Despite anything in the Official Information Act 1982 or the Privacy Act 1993, no person may have access under either of those Acts to a report or any part of a report that a court has ordered under section 25 or section 31 not to be disclosed to that person. Compare: 1985 No 120 s 18

27 No sentence of imprisonment to be imposed without opportunity for legal representation (1) No court may impose a sentence of imprisonment on an offender who has not been legally represented at the stage of the proceedings at which the offender was at risk of conviction, except as provided in subsection (2) .

(2) Subsection (1) does not apply if the court is satisfied that the offender-

(a) was informed of his or her rights relating to legal representation, including, where appropriate, the right to apply for legal aid under the Legal Services Act 2000; and

(b) fully understood those rights; and

(d) refused or failed to exercise those rights, or engaged counsel but subsequently dismissed him or her.

(3) If, on any appeal against sentence, a court finds that a sentence was imposed in contravention of subsection (1) , the court must either-

(a) quash the sentence imposed and impose in substitution for it any other lawful sentence that the court thinks ought to have been imposed; or

(b) quash the conviction and direct a new hearing or trial, or make any other order that justice requires.

(4) For the purposes of this section, an offender refuses or fails to exercise his or her rights relating to legal representation if the offender-

(a) refuses or fails to apply for legal aid under the Legal Services Act 2000 or applies for it unsuccessfully; and

(b) refuses or fails to engage counsel by other means.

28 General requirement to give reasons (1) A court must give reasons in open court for the imposition of a sentence or the making an order under Part 2 .

(2) The reasons may be given under this section with whatever level of particularity is appropriate to the particular case.

(3) Nothing in this section limits any other provision of this or any other enactment that requires a court to give reasons.

Part 1: Sentencing purposes and principles, and provisions of general application