Introduction

Part 1: Is it necessary to create a new offence?

Part 2: Has the appropriate mental element been determined?

Part 3: Are appropriate defences available?

Part 4: Is the offence a summary or indictable offence, and is this appropriate?

Part 5: If the offence is an infringement offence, is this appropriate?

Part 6: Has an appropriate range and level of penalties been determined?

PART 7    

12.7.1 Outline    
12.7.2 Comment    
12.7.3 Guidelines

Almost every society with a legal system draws a distinction between conduct that is treated as a criminal offence and conduct that, while regarded as wrongful, is regulated only by the civil law. However, it is often difficult to determine whether or not any particular conduct requires the intervention of the criminal law.

Issues discussed

The following issues are discussed in this Chapter:

Part 1: Is it necessary to create a new offence?

Part 2: Has the appropriate mental element been determined?

Part 3: Are appropriate defences available?

Part 4: Is the offence a summary or indictable offence?

Part 5: Is the offence an infringement offence?

Part 6: Has an appropriate range and level of penalties been determined?

This Part discusses the purposes of the criminal law, the distinctions between criminal law and civil law, and guidelines on when it may be appropriate to create a criminal offence.

One modern statement of the purpose of the criminal law is found in the American Law Institute's Model Penal Code, where it is suggested that those purposes are:

As a generalisation, the criminal law does three things. It tells citizens that certain conduct is prohibited. Secondly, it provides for the investigation and prosecution of those who are alleged to have broken the rules. Those who are proved to have broken the rules are (in general) convicted. They are also punished, and a variety of penalties specific to the criminal law are available for that purpose.

The criminal law is concerned with the punishment of offenders and the deterrence of others from wrongdoing. It is not primarily concerned with compensation, which is the province of the civil law. In contrast, the civil law is not primarily concerned with punishment. The remedies provided by civil law have other purposes (eg, compensation, the remedying of wrongs, stopping unlawful conduct). It must be acknowledged that there are exceptions to this general principle: in particular, the civil remedy of exemplary damages (which is designed to inflict punishment rather than compensate), and the sentence of reparation (which is designed to compensate the victim rather than punish the offender).

The criminal law is intended to punish only that conduct which is in some way blameworthy. This is reinforced by the process of conviction, which is distinctive to the criminal law. Conviction operates as an enduring form of censure by society for the wrongdoing. The wrongdoer is, by the process of conviction, labelled a criminal, and gains a criminal record that may have life-long consequences for the person's employment prospects, freedom to travel, and other opportunities. The notion of blameworthiness as an integral feature of the criminal process is longstanding. This is illustrated by the following quotation from Denning LJ, as he then was, who wrote that ever since the time of Henry I:

The civil law, in contrast, does not, in general, employ concepts of moral fault. An adverse judgment does not necessarily imply a form of moral fault on the part of any person, and does not involve any form of symbolic condemnation of the person or their conduct on the part of society.

In a liberal and pluralistic society the criminal law is primarily used to prevent or punish serious harm caused to other individuals or the wider collective interests of society at large. In order to be credible and accepted in the community, criminal offences:

• must reflect current societal values about the type of conduct which is sufficiently serious to warrant the punishment of the criminal law:

• must define the prohibited conduct with sufficient precision to enable the ordinary citizen to know in advance whether or not his or her conduct will be criminal.

There has been, and will continue to be, ongoing debate about the extent to which the criminal law should be utilised to prohibit behaviour -

There is also a need to balance the interests of the community to be protected from crime and that of the accused to ensure that mental as well as physical elements of the offence are established before a conviction is entered.

Ultimately, it must be acknowledged that the proper scope of the criminal law is a matter involving political and ethical judgments, and there is room for opposing views on the question of whether, and to what extent, the criminal law may be utilised to regulate public morals or so-called victimless crimes.

Some of the questions which need to be addressed when considering whether to create a criminal offence include the following:

Will the conduct in question, if permitted or allowed to continue unchecked, cause substantial harm to individual or public interests?

Would public opinion support the use of the criminal law, or is the conduct in question likely to be regarded as trivial by the general public?

Is the conduct in question best regulated by the civil law because the appropriate remedies are those characteristic of the civil law (eg, compensation, restitution)?

Is the use of the criminal law being considered solely or primarily for reasons of convenience rather than as a consequence of a decision that the conduct itself warrants criminal sanctions?

If the conduct in question is made a criminal offence, how will enforcement be undertaken, who will be responsible for the investigation and prosecution of the offence, and what powers will be required for enforcement to be undertaken?

If the new offences in question are unlikely to be enforced, or enforced only rarely, the question of whether a criminal sanction is warranted should be examined carefully, because creating offences that are not going to be enforced brings the law into disrepute. If enforcement of the law is going to be left to the Police as part of their general duty to enforce the law, it may be useful to make prior enquiries of the Police as to the likely priority to be given to the new offence or offences being created.

Would it be more economic or practicable to regulate the conduct in question through the use of existing or new civil law remedies?

Does the conduct in question primarily involve the non-payment of fees or other sums of money to the Crown or other statutory bodies? In general, such money should be recovered by use of civil remedies (which may include a specialised civil penalty regime) rather than making non-payment a criminal offence.

Is the conduct that is to be categorised as a criminal offence able to be defined with precision?

Vague expressions are unsatisfactory, as are global expressions to the effect that "failure to comply with any provision of this Act" constitutes "an offence". The latter approach suggests that there has been little or no analysis of each element of personal conduct regulated by the legislation, for the purpose of deciding whether a criminal sanction is warranted.

This Part discusses the different classes of mental element, and specifies criteria to be applied in determining the appropriate mental element for a particular offence.

Millar v MOT [1986] 1 NZLR 660, attempted to simplify the previous complex categorisation of offences into three different classes of offence.

The first class of offence is those offences in which mens rea (the mental element) is an ingredient of the offence and the prosecution is required to prove it.[61]

The second class of offence is those offences that do not require the prosecution to prove mens rea. However, it is a defence for the defendant to prove total absence of fault on the balance of probabilities.[62]

The third class of offence is offences of absolute liability, where it is not necessary for the prosecution to prove mens rea, and total absence of fault is not a defence.[63]

There is a presumption that unless there is good reason the prosecution should have the onus of proving mens rea (the mental element). The required mental element can be expressed in a number of ways, including the use of words such as "knowingly", "intentionally", or "recklessly". A mens rea requirement should be imposed if an activity is wrongful in all circumstances and regarded by the general public as "truly criminal".

An offence may properly be categorised as a strict liability offence (where there is no need for the prosecution to prove mens rea, but there is a defence if the defendant proves total absence of fault) if -

There is very limited scope for the creation of new absolute liability offences in New Zealand (ie those offences where even a total absence of fault is not a defence). Absolute liability offences have been the subject of critical comment on the basis that it is completely inappropriate to subject citizens to the criminal process in any circumstances if they can demonstrate absence of fault. The use of an absolute liability offence should be contemplated only if -

This Part discusses issues concerning the burden of proof, and the types of defences that should be provided in the case of different classes of offence.

The questions of the burden of proof and the question of what, if any, defences should be provided are interlinked. The law in this area has become complex owing in part to an apparent conflict between section 67(8) of the Summary Proceedings Act 1957 and section 25(c) of the New Zealand Bill of Rights Act 1990.

Section 67(8) of the Summary Proceedings Act 1957 provides:

There is extensive case law on this, the essence of which is that:

Section 25 of the New Zealand Bill of Rights Act 1990 provides:

A summary of the position is that offences which contain neutrally worded qualifications such as "without reasonable excuse or lawful authority" or "without lawful justification or excuse or colour of right" probably cast a different burden on the defendant, depending on whether they are tried summarily or on indictment.[65] In the case of an offence tried summarily, the Courts are likely to apply section 67(8) of the Summary Proceedings Act and impose a legal burden on the defendant to prove, on the balance of probabilities, that the exception applies. In the case of offences tried indictably, the Courts are likely to hold, applying section 25(c) of the New Zealand Bill of Rights Act, and in the absence of any provision similar to section 67(8), that there is only an evidential burden on the defendant to raise a doubt, in which case the legal burden of disproving that the exception applies passes to the Crown.

Some guidelines in relation to the use of defences are set out below.

The need for clarity suggests that if legislators wish to impose a legal burden on the defendant to establish an exception or defence, words like "prove" or "proved" should be used.

The rule in section 67(8) of the Summary Proceedings Act may be displaced by use of words indicating that there must be "evidence" of some relevant qualification (eg, "in the absence of evidence to the contrary"). This is suggestive that an "evidential" rather than a legal burden is being placed on the defendant.

Words which place a burden on the defendant to prove something generally create a "prima facie" infringement of section 25(c) of the New Zealand Bill of Rights Act. For Bill of Rights vetting purposes the question will be whether the creation of such a burden is a "justified limitation" in terms of section 5 of the Act.

In assessing whether such offence provisions fall within the scope of section 5 of the New Zealand Bill of Rights Act, obvious regard will be had to the likely categorisation of the offence as per Millar, the maximum penalty, and questions such as whether the subject matter of the defence is peculiarly within the knowledge of the defendant.

In general, it is preferable to avoid placing a legal burden of proof on a defendant, particularly if the case involves a "truly criminal offence". If the formulation of a particular offence involves an "exception, exemption, proviso, rule, or qualification", consideration should be given to placing only an evidential burden on the defendant, or simply requiring the defendant to put the matter in issue (see section 257A(6B) of the Crimes Act 1961).

Subject to the limitations referred to in guidelines 3 and 4, it is helpful to the public and the courts for legislators to identify and spell out specific defences in the case of public welfare regulatory offences, if it is possible to identify such defences as part of the policy development process.

This Part discusses the distinction between summary offences and indictable offences, and sets out guidelines for describing and categorising offences as summary or indictable offences.

A series of questions and answers are set out below.

What is the practical significance of the distinction between summary and indictable offences?

If an offence is proceeded with on indictment, the defendant cannot elect to have the offence tried summarily (in other words, the offence will almost always be tried by a jury, rather than a Judge alone). On the other hand, if the offence is a summary offence, it will be tried in the District Court by a Judge or lower level judicial officer, unless it is punishable by MORE than 3 months' imprisonment AND the accused elects jury trial.

What is a summary offence?

This term is defined in a slightly unhelpful way in section 2 of the Summary Proceedings Act as: "any offence for which the defendant may not, except pursuant to an election made under section 66 of this Act, be proceeded against by indictment; and, where the enactment creating an offence expressly provides that it may be dealt with either summarily or on indictment, includes such an offence that is dealt with summarily". A summary offence -

• includes minor offences (section 20A of the Summary Proceedings Act):

• includes infringement offences (section 21 of the Summary Proceedings Act):

• generally includes offences punishable solely by a fine[66]:

• generally includes offences punishable by up to three months' imprisonment.

What is an indictable offence?

This term is defined in a very indirect way. Section 2(2) of the Crimes Act states in effect, that every offence under the Act is a crime. A crime is defined in section 2(1) as an offence which may be proceeded against by indictment. An indictable offence is therefore:

• an offence under the Crimes Act

• an offence under another enactment specifically declared to be an indictable offence.

An offence with a maximum penalty of greater than 3 months' imprisonment may also be classed as an indictable offence.[67]

What are the different classes of indictable offence?

(a) Indictable offences triable summarily

These are listed in the First Schedule to the Summary Proceedings Act and in section 6(2) of the Summary Proceedings Act. Generally they include a range of offences in the Crimes Act (although not all) punishable by between 1 and 10 years imprisonment. There are also a wide range of offences in other statutes listed in the First Schedule. Again indictable offences are not generally declared to be triable summarily if the maximum period of imprisonment that might be imposed is greater than 10 years.

(b) Purely indictable offences

These are offences which may be tried only on indictment. They comprise those indictable offences not listed in the First Schedule to the Summary Proceedings Act, or in section 6(2) of that Act. There are 3 main categories of purely indictable offence:

• Those triable in the District Court without further direction (those offences described in paras (a) to (d) of section 28A of the District Courts Act).

• Those triable in the District Court on the prior direction of the High Court (para (e) section 28. District Courts Act). These are called middle band offences.

• The rest, which are triable solely in the High Court.

Note: There is a subsequent ability to transfer proceedings from the District Court to the High Court under Section 28J of the District Courts Act.

There are different rules governing jurisdiction to impose sentence for different classes of offence.

It is helpful to both the legal profession and to the Courts to specify in the legislation whether a particular offence is a summary offence or an indictable offence.

If an offence is punishable by more than 1 year's imprisonment it should generally be categorised as an indictable offence.

If an offence is punishable by more than 1 year's imprisonment but less than 10 years imprisonment, the prosecution should be given an option of trying the offence summarily. This is achieved by including the offence in the list of indictable offences triable summarily in the First Schedule of the Summary Proceedings Act 1957.

In no case should an offence have retrospective effect (ie criminalise conduct that was lawful at the time of commission), R v Poumako, CA, 31 May 2000.

This Part discusses infringement offences and sets out guidelines governing their use.

Infringement offences are offences which may be proceeded against, under section 21 of the Summary Proceedings Act 1957, by serving an infringement notice on a defendant, and, if the infringement fee remains unpaid, by subsequently serving a reminder notice. If the fee remains unpaid, a copy of the reminder notice may be filed in a District Court, and, unless the defendant requests a hearing, an order is deemed to be made that the defendant pay a fine equal to the infringement fee for the offence and any prescribed costs.

There is now an ability for an informant and a defendant to agree to time payments.

Infringement offences involve a substantial element of compromise. No conviction is entered if proceedings for the offence are taken by way of infringement notice. In return, there is no requirement for any court hearing to take place unless the defendant specifically requests it, and, unless a hearing is requested, an order requiring payment for a fine is automatically generated as a consequence of the informant filing of a copy of a reminder notice.

There are a number of statutory hybrids. Two variations are -

An infringement notice procedure is not suited for use in connection with -

• offences requiring proof of mens rea; or
• offences that are punishable by imprisonment;[170] or
• offences that are not easy to establish (for example, offences relating to the breach of a general statutory duty requiring expert evidence).

An infringement notice procedure is best suited for those offences that -

• are offences of strict liability that are committed in large numbers; and
• involve misconduct that is generally regarded as being of comparatively minor concern by the general public; and
• involve acts or omissions that involve straightforward issues of fact.

An infringement notice procedure is generally only practicable if there are a sufficient number of enforcement officers available dedicated to the task of issuing infringement and reminder notices (a dedicated enforcement team).

Before creating new infringement notice procedures, it is highly desirable to consult with the Department for Courts, as changes may be required to be made to the standard form of reminder notice prescribed in the Summary Proceedings Regulations 1958.

The invention of new hybrid forms of infringement notice procedures is to be discouraged, as new procedures are difficult to perfect in practice. If a non-standard form of infringement notice is required, it is preferable to use one of the 2 hybrids described under Comment, 12.5.2, as a model (the Land Transport Act 1998 model or the Biosecurity Act 1993 model.) Both models took considerable time and expertise to develop, the latter through a process of trial and error.

Reminder notices should in all cases provide a full summary of defences available in respect of the offence, and legislation that empowers the use of reminder notices that are not prescribed under the Summary Proceedings Act 1957 should contain a full statement of the details required to be included in those notices.

The level of infringement fee should generally be less than $500 (see the discussion in Part 2).

NOTE: Sections 12.6.2 and 12.6.3 of the 2001 edition of the Legislation Advisory Committee Guidelines refer to the Criminal Justice Act 1985. This Act has now been replaced by the Sentencing Act 2002.

This Part discusses some of the underlying principles of New Zealand's sentencing regime and contains guidelines on appropriate penalties.

The general approach of Parliament since the late 19th century has been to fix a maximum penalty for an offence but no minimum penalty. The statutory maximum is designed for the very worst type of case falling within the definition of the offence. The determination of the actual sentence to be imposed, which can range from the statutory maximum on the one hand to discharge without conviction on the other hand, is a matter for the sentencing court. The sentencing court, in a very broad sense, sets an appropriate sentence by assessing the offender's culpability.

In conducting a sentencing exercise, the Court is guided by sentencing principles set out in:

• Part 1 of the Criminal Justice Act 1985:

• submissions from the prosecution and the defence at the hearing where sentence is imposed:

• information from probation and reparation reports, and victim impact statements:

• previous judgments of other courts (particularly the High Court and the Court of Appeal), about the principles to be adopted in sentencing generally or about the appropriate range of sentences for the particular offence in question (sometimes "benchmark sentences" are set for particular offences).

There are a number of exceptions to the regime outlined above, including:

• the penalty for murder, which is a mandatory sentence of life imprisonment:

• a number of public welfare regulatory offences which contain provision for mandatory or minimum penalties for certain offences (eg, some offences in the Land Transport Act 1988):

• offences for which an infringement notice regime is available (infringement offences). These typically involve a fixed penalty (infringement fee).

As a general rule, imprisonment should be used as a penalty for only the more serious offences. In determining whether imprisonment should be a penalty, and if so, the maximum term of imprisonment, the scheme of statutory presumptions regarding the use of imprisonment specified in sections 5 to 7 of the Criminal Justice Act 1985 should be considered.

Under the Criminal Justice Act 1985, community based sentences are available as an alternative to imprisonment (not as an alternative to a fine). Thus, community based sentences should not be made available as a sentencing option if the offence does not itself warrant imprisonment as a maximum penalty, because this is inconsistent with the sentencing regime provided in the Criminal Justice Act 1985, and will create anomalies.

Finally, so far as imprisonment is concerned, the need for an arrest or search warrant power is not by itself sufficient justification for a penalty of imprisonment. If such powers are justified they can be conferred distinctly for the offence. Imprisonment as a penalty must also be matched to the seriousness of the offence, and in particular to its fault element.

Fine

The most commonly imposed sanction in New Zealand is the fine. In many instances, it is the only penalty available to the Courts for a particular contravention of the criminal law.

Provision is made under the Summary Proceedings Act 1957 for fines to be paid immediately, over a time period longer than the standard 28 day period, or by instalment. No fine may be imposed unless the Court is satisfied that the defendant has the financial ability to pay the fine.

A maximum fine should be set at a realistic level in relation to the gravity of the conduct which it is intended to punish. Any factors favouring very high maximum fines have to be balanced against the risk that defendants will simply not be able to pay such penalties.

If a fine is an appropriate penalty, an issue to be considered is the imposition of daily penalties for continuing offences, such as offences for various types of pollution. Continuing offences with daily penalties introduce the possibility of large, indeterminate fines. Generally, such a penalty will not be desirable, as certainty is a cornerstone of the criminal law. A more appropriate remedy may be an order requiring discontinuance, or some other relief designed to end the unlawful activity.

In considering the appropriate penalty for an offence, consideration should be given to the following:

If the offence does not require proof of mens rea by the prosecution, but is either a strict liability offence (where proof of total absence of fault is a defence) or an offence of absolute liability, imprisonment is not generally an appropriate penalty. The level of fault involved in such offences will, in general, warrant only a fine, even if the consequences of the offence are severe.

Mandatory or minimum penalties should generally be avoided unless the offence is properly categorised as an infringement offence, or there are compelling reasons of social policy for providing mandatory or minimum penalties. Mandatory and minimum penalties may restrict the ability of the sentencing court to impose a just sentence (one that has proper regard to the offender's culpability and, in the case of a fine, ability to pay the fine), and also conflicts with the principle that the sentencing court rather than the legislature is the body best equipped to assess the appropriate sentence to be imposed in individual cases.

Increases to a maximum term of imprisonment for any particular offence should generally be contemplated only as a consequence of -

It is easy to assert that increasing penalty levels for any given offence will succeed in deterring at least some people from committing the offence. Frequently, however, such assertions are not supported by research or detailed consideration of either the nature of the offence or the actual or likely effect of increasing penalties, that would enable a proper assessment to be made of the justification for an increase.

It is inappropriate to increase any maximum penalty with retrospective effect, as this is inconsistent with fundamental principles enshrined in the Criminal Justice Act 1985 and the New Zealand Bill of Rights Act 1990 - R v Poumako [2000] 2 NZLR 695.

Some regard must be had to the level of maximum penalties provided across the statute book for similar offences or offences of similar severity. There are limits, however, to the utility of a search for consistency. As a result of the ad hoc development of the criminal law in different contexts, there are disparate maximum penalties for behaviour of similar seriousness on the statute book.

In setting the maximum fine for any offence, consider whether there is any potential for an offender to make a windfall profit from his or her unlawful behaviour. In other words, is the maximum fine sufficient to deter unlawful behaviour? This is a particularly important consideration if the offence will commonly be committed by companies or other corporate bodies.

Standard fees payable in respect of an infringement offence should be set at a low level (generally not exceeding $500). The reason for this is that a standard mandatory penalty provides no ability for the means or the overall culpability of an offender in respect of the offence to be taken into account.

Careful consideration should be given to the appropriateness of including offences in delegated legislation such as regulations or ministerial rules. There is a substantial body of opinion that all offences should be included in primary legislation. There are, however, many examples of offences created by regulations, and at least in part by ministerial rules. If it is possible to specify the details of an offence with adequate precision at the time when primary legislation is introduced, the offence should be included in primary legislation. If delegated legislation is to create criminal offences, the empowering legislation should specify the maximum permissible penalties and other relevant details. Imprisonment is not an appropriate sanction for offences created by delegated legislation

This Part discusses the limitation period applicable for different classes of offence and specifies criteria to be applied in determining whether there should be a departure from the ordinary rules.

The standard period of limitation for offences that may only be dealt with summarily is, in the absence of specific provision to the contrary, 6 months from the date of the offence (section 14 of the Summary Proceedings Act 1957). This long standing rule first appeared in section 5 of the Justices of the Peace Act 1866, and in all subsequent New Zealand legislation on the topic. It reflects the understanding that matters punishable on summary conviction are less serious and less significant than matters that can be tried on indictment. Because of this it is, in general, unreasonable and inappropriate to allow the investigation of these offences to extend beyond a period of 6 months from the date of the offence.

In the case of any offence punishable by less than 3 years imprisonment or a fine of less than $2,000 (whether summary or indictable) and for which no shorter period of limitation is applicable, no proceedings or any further proceedings may be taken more than 10 years from the date of commission of the offence, without the consent of the Attorney-General (section 10B of the Crimes Act 1961).

There is no period of limitation for indictable offences (whether purely indictable or included in the list of offences set out in Schedule 1 of the Summary Proceedings Act 1957 of indictable offences that may be tried summarily).

A large number of Acts authorise the bringing of proceedings for particular summary offences after a much longer period than 6 months (for example, by allowing the bringing of prosecutions within 1, 2, or 3 years after the date of the alleged offence). There has been a trend in recent years to use statutory formulae commencing the relevant limitation period with events such as the date on which the relevant facts become known or should have become known to the informant, or were drawn to the attention of the authorities (for example, see section 80(4) of the Building Act 1991, section 109(2) of the Hazardous Substances and New Organisms Act 1996, and section 338(4) of the Resource Management Act 1991).

In general, the only summary offences where there is justification for departing from the "6 month" rule are offences that -

• cause or involve a risk of serious harm to health or safety; or
• involve fraud or other dishonest behaviour that may be difficult to detect.

While formulae employing a "discoverability" test have an advantage in responding to the long latency period that some offences have before the facts constituting the offence become known, the disadvantage is that there is considerable scope for legal argument about when the facts of an offence either become known or ought to have become known. Formulae incorporating concepts of "discoverability" suffer from uncertainty in practice, from the perspective of both prosecutors and defendants.

To promote certainty it is sensible and efficient to extend the limitation period to a specified period from the act or omission constituting the offence, rather than expanding the limitation period by reference to the discoverability test.

In general, public welfare regulatory offences and other strict liability offences should be created as summary offences and not as indictable offences. It is inappropriate to have no period of limitation for this type of offence.

When creating summary offences -

• consider whether the standard period of 6 months running from the date of the alleged offence is sufficient to allow a reasonable opportunity for detection and decision-making as to whether to bring a prosecution. (That period will generally be adequate for most summary offences.):
• if a longer period can be justified as an exception to the general rule it is preferable to provide for a fixed limitation period of 1, 2, 3, or 6 years dating from the date of the alleged offence rather than from the date on which the relevant act or omission was discovered or ought to have been discovered. Dating the period of limitation from the date of the offence avoids the uncertainty involved in a formula based on discoverability:
• if even a limitation period of 6 years from the date of the offence is insufficient to deal with latent offences, consider using a formula consistent with section 10B of the Crimes Act (that is, create a limitation period of 6 years from the date of the offence, but require the Attorney-General to consent to the bringing of a prosecution more than 3 years after the date of the alleged offence):
• ensure that a limitation period is not able to be extended at the discretion of an enforcement officer or informant.