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4 Factors influencing the imposition of fines

4.1 Factors involved in determining the amount of fines imposed for a variety of crimes and offences
    4.1.1 Possession of cannabis
    4.1.2 Common assault
    4.1.3 Driver exceeding specified alcohol limits (first or second offence)
    4.1.4 Dangerous driving
    4.1.5 Overall
4.2 Influence of the means of the offender
4.3 Decision to impose a fine or alternative sentence
4.4 Adjusting fines
4.5 Summary

Judges were asked a range of questions designed to explore their decision-making processes when imposing fines. These included questions around what factors were involved in determining the amount of fines imposed for a variety of offences, what factors would influence them to impose an alternative sentence to a fine, and the influence of the means of the offender on the fine imposed. 

4.1 Factors involved in determining the amount of fines imposed for a variety of crimes and offences

Judges were presented with four hypothetical scenarios each describing a specific offence. Judges were first asked to consider what amount of fine would be their starting point for the particular offence described in the scenario. Secondly, they were asked to consider what factors they would take into account in increasing or decreasing the amount of the fine. 

The specific offences chosen were those where a high proportion are known to result in a fine. In addition, Judges who commented on an early draft of the questionnaire indicated that these offences would be the most useful to examine. 

4.1.1 Possession of cannabis

If you were to sentence an adult, first time offender who pleads guilty, to a fine for possessing two cannabis cigarettes (less than 10gms), approximately what amount of fine is your starting point for this offence?

‘Possession of cannabis’ is an offence under the Misuse of Drugs Act s7(1)(a) & s 7(2)(b). The maximum penalty for this offence is 3 months imprisonment or a $500 fine. In 2001 nearly half (46%) of convicted charges for possession or use of cannabis resulted in a fine. The median fine for this offence was $150[11].

More than two out of five Judges (43%) said that they would impose a fine of between $150 and $199. A quarter indicated an amount between $200 and $250 and a third indicated an amount of less than $150. The mean fine was $153. It is worth noting that a number of Judges explicitly mentioned that court costs of $130 would be imposed in addition to the specified fine.

Figure 4.1 Starting point for fines for hypothetical offence of ‘possession of cannabis’.

Table 4.1 shows that the vast majority of Judges (89%) would not change the amount of the fine they would impose where the offender had two prior non-drug convictions but over half (58%) would increase the fine where the offender had two prior similar convictions. Most of the Judges also indicated that they would not change the amount of the fine because of the offender’s age. Two-thirds would not change the fine if the offender was on the unemployment benefit and four out of five Judges would not change the fine where the offender had an above average income.

One of the factors that Judges were asked to consider was whether the offender pleaded not guilty and whether this would have an impact on the Judge’s decision to increase or decrease the amount of fine. While two-thirds of Judges indicated that they would increase the fine where the offender pleaded not guilty they made it clear that this would involve a discount from the starting fine for an early guilty plea rather than an increase when the offender pleaded not guilty. 

Table 4.1 Factors which Judges would take into account in increasing or decreasing the amount of the fine for ‘possession of cannabis’¹

	Decrease the fine %	Not change the fine %	Increase the fine %	Consider another sentence %
Offender had two prior (non-drug) convictions2	0	89	8	3
Offender had two prior similar convictions	0	6	58	30
Offender was aged 17-19	8	86	6	2
Offender was aged 40 or over	2	91	6	2
Offender pleaded not guilty	0	27	69	3
Offender was on the unemployment benefit	16	64	0	19
Offender had an above average income	0	84	16	0

Note

1. Up to three Judges did not respond to this question.
2. A small number of Judges ticked more than one option in response to these questions. Their responses have not been included in the Table.

4.1.2 Common assault

If you were to sentence an adult, first time offender who pleads guilty, to a fine for punching someone twice in the face outside a pub, approximately what amount of fine is your starting point for this offence?

The offence of ‘common assault’ under the Summary Offences Act 1981 s9, carries a maximum penalty of 6 months imprisonment or a $4,000 fine.

Over a third of Judges said that they would impose a fine of between $500 and $599 as their starting point in this scenario (in most cases this was a fine of $500). However, there was also a wide range of responses with one in five Judges indicating sums of between $600 and $1,000 and two in five (43%) sums of less than $500. This is in part likely to reflect some uncertainty regarding the circumstances of the offence described in the scenario. For example, a number of Judges indicated that injuries to the victim and provocation would have a significant impact on the amount of fine imposed.

Figure 4.2 Starting point for fines for hypothetical offence of ‘common assault’

Most Judges said that they would not change the fine where the offender had two unrelated convictions but would consider another sentence where the offender had prior convictions for ‘common assault’. 

Nearly all Judges (94%) said they would not change the amount of the fine where the offender was aged 40 or over compared with two-thirds who indicated this for offenders aged 17 to 19. Nearly a third said that they would either reduce the amount of the fine (15%) or consider another sentence (17%) where the offender was aged 17-19. 

Half the Judges said that where the offender was the recipient of an unemployment benefit they would consider an alternative sentence. A quarter of the Judges said they would not change the fine and one in five would decrease the fine. Three-quarters of Judges would not change the fine where the offender was on an above average income.

Table 4.2 Factors which Judges would take into account in increasing or decreasing the amount of the fine for ‘common assault’¹

	Decrease the fine %	Not change the fine %	Increase the fine %	Consider another sentence %
Offender had two prior (non-violent) convictions2	0	92	3	3
Offender had two prior similar convictions	0	0	12	86
Offender was aged 17-19	15	66	2	17
Offender was aged 40 or over	2	94	2	3
Offender pleaded not guilty	0	22	71	6
Offender was on the unemployment benefit	20	25	0	53
Offender had an above average income	2	74	23	2

Note

1. Up to four Judges did not respond to this question.
2. A small number of Judges ticked more than one option in response to these questions. Their responses have not been included in the Table.

4.1.3 Driver exceeding specified alcohol limits (first or second offence)

If you were to sentence an adult, first time offender who pleads guilty, to a fine for driving with a breath alcohol level of 600 micrograms of alcohol per litre of breath, approximately what amount of fine is your starting point for this offence?

Over half (61%) of convicted charges involving driving with excess alcohol resulted in a fine in 2001. This category includes a number of charges under the Land Transport Act 1998 with varying penalty levels. Over two thirds (70%) of the charges in this category were for ‘Breath alcohol level exceeds 400 mgms of breath’ under section 56(a) of the Act. The maximum penalty for this offence is a fine of $4,500 or 3 months in prison. 

Half of the Judges stated that in the case of an adult, first time offender who is convicted for driving with a breath alcohol level of 600 micrograms they would impose a fine of between $600 and $699. A quarter said they would impose fines of between $500 and $599 and 17% fines of between $400 and $499. Only 5% said they would impose fines of $700 or more. 

Figure 4.3 Starting point for fines for hypothetical offence of ‘driver exceeding specified alcohol limits’ (first or second offence)

Table 4.3 shows that all Judges reported that they would not change the amount of the fine where the offender had two prior non-traffic convictions. However, the vast majority (89%) said they would consider another sentence where the offender had two prior similar convictions. This is not surprising given that section 56 (3) of the Land Transport Act 1998 provides that anyone convicted of their third or subsequent offence of exceeding specified alcohol limits is subject to a maximum penalty of two years imprisonment or a fine not exceeding $6,000. 

The age of the offender was not considered relevant by any of the Judges in increasing or decreasing the amount of the fine from the starting point. All Judges said they would not change the fine where the offender was aged 21-25 or 40 or over. 

Nearly all Judges (92%) would not change the amount of the fine from their starting point if the offender had an above average income. However, over half (55%) would consider another sentence where the offender was unemployed, and one in five would decrease the fine.

Table 4.3 Factors which Judges would take into account in increasing or decreasing the amount of the fine for ‘exceeding specified alcohol limits’¹

	Decrease the fine %	Not change the fine %	Increase the fine %	Consider another sentence %
Offender had two prior (non-traffic) convictions2	0	100	0	0
Offender had two prior similar convictions	0	0	8	89
Offender was aged 17-19	0	100	0	0
Offender was aged 40 or over	0	100	0	0
Offender pleaded not guilty	2	19	80	0
Offender was on the unemployment benefit	19	23	0	55
Offender had an above average income	0	92	2	0

Note

1. One Judge did not respond to this question.
2. A small number of Judges ticked more than one option in response to these questions. Their responses have not been included in the Table.

4.1.4 Dangerous driving

If you were to sentence an adult, first time offender who pleads guilty, to a fine for driving at 120km in a 50km zone, approximately what amount of fine is your starting point for this offence?

Forty-six percent of convicted charges for reckless/dangerous driving resulted in a fine in 2001. The majority of these were for ‘driving in a dangerous manner’ under the Land Transport Act 1998 section 35 1(b). This carries a maximum penalty of a fine of $4,500 or 3 months in prison. The median fine was $400. 

There were wide ranging responses to this question of the amount of fine that would be the starting point for this offence, again perhaps reflecting the variety of circumstances which may surround this offence. One in five Judges said that they would impose a fine of between $400 and $499 and a similar proportion indicated they would impose a fine between $500 and $599. One in ten Judges (12%) said they would impose fines of $800 or more. The median fine was $500.

Figure 4.4 Starting point for fines for hypothetical offence of ‘dangerous driving’

Most Judges would not change the amount of the fine where the person had two prior non-traffic convictions, but about three-quarters would consider another sentence where the offender had two prior convictions for ‘dangerous driving’. Again, age made little difference to the amount of fine imposed. Four out of five Judges would increase the fine where the offender pleaded not guilty. 

Half of the Judges said that where the offender was on the unemployment benefit they would consider another sentence. Most Judges indicated that they would not change the fine where the offender had an above average income. 

Table 4.4 Factors which Judges would take into account in increasing or decreasing the amount of the fine for ‘dangerous driving’¹

	Decrease the fine %	Not change the fine %	Increase the fine %	Consider another sentence %
Offender had two prior (non-traffic) convictions2	0	98	0	2
Offender had two prior similar convictions	0	0	23	72
Offender was aged 17-19	9	82	0	8
Offender was aged 40 or over	0	97	2	2
Offender pleaded not guilty	0	18	79	3
Offender was on the unemployment benefit	17	27	0	50
Offender had an above average income	2	84	13	2

Note:

1. Up to three Judges did not respond to this question.
2. A small number of Judges ticked more than one option in response to these questions. Their responses have not been included in the Table.

4.1.5 Overall

Table 4.5 shows the mean and median[12] fines Judges indicated they would impose for each of the four offence types. It also shows the standard deviation.[13] The larger the standard deviation the greater the variation between Judges in the amount of fines imposed. For example, consensus among Judges in the amount of fine imposed was greatest for ‘possession of cannabis’. Variation between Judges in amount of fine imposed was greatest for ‘dangerous driving’. 

Table 4.5 Mean, median fines and standard deviation of starting point of fines imposed for hypothetical offences

	Mean	Median	Standard deviation
Possession of cannabis	$152	$150	44.50
Common assault	$477	$500	153.55
Drink driving	$563	$600	82.29
Dangerous driving	$579	$500	182.74

There was a high degree of consensus among Judges in the amount of fine imposed for both ‘possession of cannabis’ and ‘driving with excess breath alcohol’. In both of these scenarios the Judges were told the amount of cannabis in possession and the excess breath alcohol level indicating the seriousness of the offence. The variation between Judges in the amount of fine imposed for ‘common assault’ and ‘dangerous driving’ reflects the uncertain circumstances surrounding the offence described in both these scenarios. For example, with respect to ‘common assault’ Judges indicated that injuries to victim and provocation would have a significant impact on the amount of fine imposed. 

‘Possession of cannabis’ was the only offence where the majority of Judges did not consider the offender’s lack of employment to be a relevant factor in the amount of the fine imposed. For all other offences, around half of the Judges indicated that they would consider another sentence for an offender who was on the unemployment benefit. No doubt this is due to the very different amounts of fines imposed for ‘possession of cannabis’ ($150) compared to the other offences where the median fine was $500 or $600. Across all scenarios only about one in five Judges said they would decrease the fine where the offender was receiving an unemployment benefit. 

A minority of Judges indicated that they would increase the fine where the offender had an above average income. This was consistent across the four offences, although Judges were most likely to increase the fine for an offender with above average income convicted of ‘common assault’ (23%) and least likely in the case of an offender convicted of ‘driving with excess breath alcohol’ (2%). 

A prior criminal history, if unrelated to the current offence, made little difference to the amount of the fine the Judge would impose from the starting point. That is, the vast majority of Judges indicated that they would not change the amount of the fine where the offender had two prior dissimilar convictions. However, the situation was very different where the offender had two prior convictions similar to their current offence. In this case Judges would either increase the fine or consider another sentence. They were most likely to increase the fine in the case of ‘possession of cannabis’ and consider another sentence where the offender was convicted of ‘common assault’, ‘driver exceeding specified alcohol limits’ and ‘dangerous driving’, again perhaps reflecting the already high starting points for these latter offences. 

Age had little impact on the amount of fine the Judge would impose, with most Judges saying that they would not change the amount of fine regardless of whether the offender was younger or older. The exception to this was ‘common assault’, where a third of Judges said that they would either decrease the fine or consider another sentence where the offender was aged 17-19. 

The majority of Judges indicated they would increase the fine where the offender pleaded not guilty. However, a plea of guilty is a mitigating factor (rather than a plea of not guilty being an aggravating factor) and Judges pointed out that they would give a discount from the starting point for a plea of guilty rather than increase the fine for a plea of not guilty. 

Judges were asked in the interviews why they tended to give an alternative sentence in each of the scenarios rather than decrease the fine where the offender was on the unemployment benefit. While people’s inability to pay a fine was considered to be a factor, Judges also mentioned the need to maintain some level of consistency in sentencing. 

Well it comes down to ability to pay at the end of the day. There does come a point where a small fine is simply not going to mark the gravity of the offence. 

To impose on an unemployed person, a fine of $150 which might be similar in degree of penalty to that on the business man of $800 doesn’t give the right message to the public when it is said that people can drink and drive etc etc. The public see that someone only got fined $150. They don’t know what their circumstances are and therefore the deterrent aspect isn’t met and therefore I think Judges look for alternative sentences. 

Especially with EBA’s [Excessive Breath Alcohol] because trying to achieve consistency. We need to try and get consistency across the board…