A Guide to Criminal Offending and Sentencing 4 (1)

A Guide toSentencing and the Criminal

Justice SystemEach year around 170,000 people are charged with criminal offences in New Zealand courts. Many of these people will be first-time offenders.

This resource provides information on what happens when you have been charged with a criminal offence, from start to finish.

It is especially targeted at first-time offenders who are unfamiliar with the criminal justice system and want to know what will happen to them during the process. It also looks at what the possible sentence will be as a first-time offender charged with one of a number of common charges.

The Ministry of Justice has another helpful site which explains the criminal process in the High Court using the example of Oliver, who is charged with manslaughter after a serious car crash. The site can be viewed at http://www.justice.govt.nz/education/crim_js/index.html.

How to use this resourceThis resource is designed to be interactive.

Blue boxes to the right of any section will tell you where to go to get more information about that subject. You will need to cut and paste the address to view each page.

Examples of situations are used to explain complex sections of law further. These are found in dark green boxes at the end of the relevant section.

If you click on words in red, you will be given an explanation of what the word means. At the end of the explanation, click on the words Back to section at the bottom and you will be returned to the section you came from.

Some of the forms you may need have been included as appendices. There are links to these within the relevant section. A blank form is provided for you to print out and complete.

You can also use the contents page to navigate within the resource. Click on the heading and you will be taken to the corresponding page.

The legal stuffThis resource is copyright of Whitireia Community Law Centre Trust Incorporated and all rights are reserved. No part of this publication may be reproduced for commercial or personal gain without the prior permission of the copyright holder.

Unless otherwise specified, images used in this resource are copyright of Microsoft Corporation.

This resource is intended to provide general information on the criminal and sentencing processes. The information provided does not constitute legal advice. You are advised to consult a lawyer or Community Law Centre directly for legal advice specific to your particular situation.

While every effort has been made to ensure the accuracy of the contents of this resource, no liability whatsoever is accepted by the authors, copyright holders or publishers, for loss consequent upon any error or omission.

More information

Legal Services Agency www.lsa.govt.nz

Example

A Guide to Sentencing and the Criminal Justice System

ContentsPart 1: The criminal justice system

Being charged with an offence ............................................................................................................. 3Police bail ............................................................................................................................................... 4Do I have to appear at court?................................................................................................................ 5Duty Lawyers ........................................................................................................................................ 5Legal aid ................................................................................................................................................ 6Your first appearance at court ............................................................................................................. 7Court bail ............................................................................................................................................... 9Pleading not guilty ................................................................................................................................ 10Status hearing ........................................................................................................................................ 11Defended hearing .................................................................................................................................. 12Appeals .................................................................................................................................................. 12

Part 2: SentencingDiversion ................................................................................................................................................ 13Plea in mitigation .................................................................................................................................. 14Maximum and mandatory sentences ................................................................................................... 15What sentences are available? ............................................................................................................. 15How does a Judge decide on a sentence? ............................................................................................. 16Aggravating and mitigating factors ..................................................................................................... 17Deferred sentences and discharges ...................................................................................................... 18What will I have to do if I receive a monetary penalty? .................................................................... 19What will I have to do if I’m sentenced to a community-based sentence? ....................................... 19What will I have to do if I get a sentence of detention? ...................................................................... 20

Part 3: Commonly occurring offencesDrunk driving......................................................................................................................................... 22Sustained Loss of traction .................................................................................................................... 23Driving while suspended ....................................................................................................................... 24Refusing to give blood ........................................................................................................................... 24Careless driving .................................................................................................................................... 25Careless driving causing injury ........................................................................................................... 26Driving without a licence ...................................................................................................................... 26Shoplifting ............................................................................................................................................. 27Disorderly behaviour ............................................................................................................................ 27Receiving stolen property ..................................................................................................................... 28Burglary ................................................................................................................................................. 28Wilful damage ....................................................................................................................................... 29Possession of cannabis .......................................................................................................................... 29Cultivation of cannabis ......................................................................................................................... 30Common assault .................................................................................................................................... 30Breach of a Protection Order ............................................................................................................... 31Benefit Fraud ........................................................................................................................................ 31Dishonestly using a document .............................................................................................................. 32Resisting Police ...................................................................................................................................... 32Trespass ................................................................................................................................................. 33

Glossary ....................................................................................................................................................... 34

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AppendicesIndependent Police Conduct Authority form ..................................................................................... 39Transfer of Proceedings ....................................................................................................................... 41Application for Variation of Sentence of Community Work.............................................................. 43

Part One: The Criminal Justice System

Being charged with an offence

There are four ways you may be charged with a criminal offence and become a part of the criminal justice system:

A District Court Judge or Justice of the Peace (JP) may issue a summons for you to appear in Court, The Police may arrest you under a warrant issued by a District Court Judge or JP, The Police may arrest you without a warrant if they have reasonable cause to believe that you have

committed, are committing or are attempting to commit a crime, You may be detained under the drink/drive provisions of the Land Transport Act

A summons will be issued for minor offences after the Police, government body or local authority have decided to prosecute by way of summons. The summons will be sent through the post or served on you personally.

It is extremely important that you appear in Court on the day stated if you have received a summons. If you do not attend, a warrant for your arrest may be issued.

Another common way a person comes in contact with the criminal justice system is when an individual makes a complaint which is investigated by the Police. You may be questioned first in relation to an alleged offence or, if the Police have reasonable cause to believe you committed the offence, you will be arrested immediately.

After you have been arrested, you’ll be questioned by the Police at the police station. If you are simply asked to attend the Police Station to answer questions, you are under no obligation to do so. You may leave at any time up until you are arrested.

You have the following rights:

The right to be advised of the reason you are being detained / arrested

The right to speak to a lawyerAny person who has been arrested or detained has the right to consult a lawyer without delay and to be informed of that right. If you do not have your own lawyer, the Police have a list of lawyers available for you to phone. This service (the Police Detention Legal Assistance Scheme) is free and paid for by the Legal Services Agency.

The right to remain silentYou must be advised by the Police of your right to remain silent. You are obliged to give your name, address, occupation and date and place of birth. If there is a vehicle involved, you must give the name and details of its owner, hirer or driver and if you are the owner/hirer, you must give the names and details of any passengers. You do not have to say anything else and anything else you say to the Police may be recorded and used in evidence against you.

If you are arrested, you must give your fingerprints and allow your photograph to be taken. If you have not been arrested, you do not have to allow either of these things. Depending on the outcome of the questioning, the Police will decide if they are going to release you or charge you with an offence. If they decide to charge you, they must then decide whether or not to grant you Police bail.

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More information

“You and the Police” pamphlet available from the NZ Law Society

http://www.lawyers.org.nz/PDFs/7348YouandthePolice.pdf


The Police have very broad powers of search and arrest and are therefore governed by quite strict rules as to their conduct while performing their duties. If you are unhappy with the way you are treated then you can make a complaint to the Police Complaints Authority. A complaint form is available here.

Police bail

When you’ve been arrested and charged, the Police must either grant you bail or bring you before the court as soon as possible to determine if you should get bail.

If it’s not possible for the Police to bring you before a court immediately (usually because you were arrested on the weekend), the Police may decide to release you on bail until that first court appearance.

If the Police don’t grant you bail, you’ll be held in custody until you’re taken to court, at which point you can apply to the court for bail.

Police have the power to require you to provide a "surety" (a person who enters into a binding promise) or to deposit a sum of money as a bail bond, but this usually isn’t required.

Instead they will require a fixed address and may impose certain conditions to your bail. The most common conditions are that you: Reside at a specified address; and not contact the victim or complainant; and/or not associate with co-offenders; and/or have a curfew (not being allowed away from your residential address between certain hours such as 7pm to

7am).

The Police have a discretion to grant bail in most situations and bail is normally granted unless there is good reason to believe that you will not turn up to court, or that you are likely to be a danger to the community (for example, through re-offending, or tampering with evidence or witnesses). Bail is generally granted to first offenders unless the crime is serious.

Bail can’t be granted by the Police when more serious offences such as serious assault or rape are involved. Police will not grant bail if they have reason to believe that the offender will not turn up in court or has no fixed address.

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Arrested

Questioning

Released without being

charged

Kept in custody until brought

before a Judge

Decision on bail by Police

Released on Police bail

Advised of rights, including right to a lawyer

Charged with an offence

ExamplePeter is a 17-year old college student. He was caught shoplifting a baseball cap from The Warehouse. This is the first time he’s been in trouble with the Police. He lives at home with his parents and his parents say that they will make sure he appears in court. Peter will get Police bail. There will be a condition that he lives with his parents and probably that he does not go near The Warehouse.

Fingerprints and photos taken

No Yes


Do I have to appear at court?

If you’ve been summonsed to court or have been released on Police bail, you must appear in the specified District Court to hear the charges against you. It is very important that you appear at the time and on that day specified or a warrant for your arrest may be issued.

Often people are charged with offences in a court which isn’t in the area they live in. This is because charges are laid in the court nearest to the place where the offence took place.

People who have been charged in a court a long way from home often want to transfer the case closer to where they live. This is only possible if they are going to plead guilty to the charge. If you planning to plead not guilty, you will have to appear in person at each court appearance in the court you were charged.

If you want to plead guilty and have the charges transferred to a court close to your home, you will need to fill in a Transfer of Proceedings form. You should fill it in (using the example given) and fax or post copies of the form to the original court you were charged in, as well as the court you want the charge to be heard in. You will receive a letter back stating whether the charge has been transferred. If you have not received this letter within a week of your court date, you need to contact the original court by phone. You must appear in court on the date that the charge has been transferred to.

Minor OffencesThe only time you won’t have to appear yourself after being summonsed is if you have been charged with a minor offence which does not carry a possible term of imprisonment (such as careless driving) and you wish to plead guilty to the offence. In this situation you are able to enter a guilty plea by post. You will need to write a letter to the Registrar of the District Court saying that you are entering a guilty plea and giving any explanation as to the circumstances of the offence and your own personal circumstances to help the Court decide the appropriate penalty. You need to make sure this letter will reach the Court at least three days before the date you are supposed to appear in court. You will receive a response by post giving the penalty.

Duty Lawyers

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ExampleJohn broke into a house and stole a TV and DVD player. He has been convicted of burglary several times in the past. One year ago he breached the curfew imposed on him by the court as a condition of bail. He has no fixed address. John will probably be held in Police custody until he appears in court for the first time where the issue of bail will be decided by the Judge or JP.

ExampleAndrew lives in Porirua. He was driving to Auckland one weekend when he was involved in a small accident in Taupo. The other driver broke her thumb as a result of the accident. After the Police investigate, they decide to charge Andrew with “careless driving causing injury”. Andrew will receive a summons to appear in the Taupo District Court, because that is the court closest to where the offence took place.

ExampleAndrew must appear in the court at Taupo unless he wants to plead guilty. If he wants to plead guilty, he can ask for the charge to be transferred to the court at Porirua. However, if he wants to plead not guilty, he will have to go to Taupo for the first appearance and also for every other appearance in Court. He should expect to go to Taupo at least three times for a careless driving causing injury charge. He can choose whether to instruct a lawyer in Porirua or in Taupo, although it may be cheaper to instruct a lawyer in Taupo because a lawyer from Porirua will charge him travelling time to go to Taupo.


When you arrive at court on the day you’ve been summonsed, the first thing you should do is speak to a Duty Lawyer.

Duty Lawyers are paid for by the Legal Services Agency and their services are free for you. They are there to make sure that everyone who appears in Court for the first time has the chance to be advised by a lawyer. Anyone can receive advice from the Duty Lawyer if they have not hired a lawyer.

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The Duty Lawyer will be able to: explain the charge to you and how serious it is; tell you about the usual range of sentences that the courts give for the charge; tell you if you might have a defence to the charge; explain what happens after you plead guilty or not guilty; apply for bail for you if you are in custody; request a variation in bail conditions; ask for your case to be "remanded" (put off) so that you can get more advice or

information; explain about Police diversion; and help you apply for legal aid.

If you are pleading guilty to a charge that will not involve a likelihood of imprisonment or community work, the Duty Lawyer can enter the guilty plea for you. They can also tell the Judge about your personal circumstances and your point of view about the offence and aspects that might lead to a lighter sentence (a "plea in mitigation"). It is unlikely you would need to speak in court at all in this situation.

When you arrive at court there may be notices telling you where to find the Duty Lawyer. If not, ask the court staff or a court volunteer where to find the Duty Lawyer.

Duty Lawyers are extremely busy making sure that everyone who needs to, can see a lawyer. They will usually only spend a few minutes with you, finding out what you want to do about the charge and the details of your situation. Usually the Duty Lawyers work on a “first come, first served” basis so you will probably have to wait to speak to one. Make sure you get to court early to ensure you get to talk to a lawyer before your case is called. If the charge is serious or you wish to plead not guilty to it, the Duty Lawyer will be of limited help. They can ask for your case to be remanded for a couple of weeks to allow you to get further legal advice. This may be from a legal aid lawyer or you will have to “instruct” a lawyer directly by agreeing to pay them for their services. They can also help you fill in a legal aid form.

Legal aid

If you’ve been charged with an offence but can’t afford a lawyer, your legal fees may be paid through criminal legal aid. Legal aid covers all your lawyer’s fees and other fees and expenses of your court case. But you may have to pay some or all of it back.

Legal aid is granted by the Legal Services Agency (the LSA). It is only granted where the person involved is on a low income and doesn’t have any assets they could sell to pay for a lawyer. The offence must be quite serious (i.e. there is a possibility of six months imprisonment). The LSA may also take into account if you have any previous convictions (which may mean the sentence is more likely to be prison) and special barriers or disabilities such as mental illness or language difficulties.

If you qualify for legal aid, you will be assigned a lawyer unless you write down your “preferred” lawyer on the form. If that person is a legal aid provider and is qualified to deal with your kind of charge, they will be assigned. If you don’t know any lawyers, you can ask for the LSA to assign the Duty Lawyer you spoke to or just allocate you someone. You can check if your preferred lawyer is a legal aid lawyer by checking on the LSA website at the right.

The Duty Lawyer will have forms for you to use to apply for legal aid. Courts, lawyers and Community Law Centres will usually have copies of these forms if you want to apply for legal aid before you have appeared in court for the first time.

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More information

Legal Services Agency

http://www.lsa.govt.nz/duty.php

More information


http://www.lsa.govt.nz/search.php


The legal aid form asks for the following information: the offence you are charged with (so make sure you have your court summons with you); your contact address; your date of birth; your source of income; the amount of your income each week, and for the last 12 months; any savings and debts; and if you own a house or car etc, how much they are worth.

When you have applied for legal aid, you will receive a letter back from the LSA saying whether or not you have been granted legal aid. If you have been refused legal aid, you can appeal this decision. You should speak to a lawyer or Community Law Centre before doing this. If you have been granted legal aid you need to contact the assigned lawyer immediately – do not wait for them to contact you.

Your first appearance at court

The diagram below shows the process a charge goes through when dealt with in the District Court. More information about each step can be found on the following pages.

Unless you have been held in Police custody, your first appearance in court you will usually be in front of the registrar. The registrar is not a Judge but is a court official. They will ask you if you want to plead guilty or not guilty. If you haven’t spoken to a Duty Lawyer, the Registrar will advise you to see one first. After that, the Registrar will ask you again for your plea. If you want to be represented by a Duty Lawyer or your lawyer, he or she will enter the plea for you.

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More information


http://www.lsa.govt.nz/claid.php

First appearance at Court (usually before a Registrar)

Time given to complete diversion

Charges withdrawn by

Police

Completed

Notcompleted

No plea entered

Remand without plea to a future Court

date in order to get legal advice

Guilty plea indicated

Convicted of offence and sentenced by a Judge

(on same day or after pre-sentence report)

Not guilty plea entered

Disclosure of evidence by Police

Status hearing before a Judge

Continue not guilty plea

Defended hearing

Found not guilty

Found guilty

Diversion offered by the

Police

Minor offence

Remanded to status hearing or straight to a hearing for minor

traffic

Transferred to Judge’s court and

plea entered

Serious offence

Change plea to guilty

Found not guilty


The Duty Lawyer will get a copy of the summary of facts from the Police so that they (and you) know exactly what the Police allege you have done.

Entering a “Plea”What happens next will depend on how you are going to plead:

You want to plead guilty to a minor chargeThe guilty plea is indicated to the registrar who will transfer you to appear before a Judge usually on the same day. The Duty Lawyer will present your point of view and all aspects that might lead to a lighter sentence (a “plea in mitigation”). You don’t have to say anything yourself if you don’t want to. Usually the sentence will be given on the spot subject to any victim impact statement prepared by the Police.

Check with the Duty Lawyer to see if you may qualify for Police diversion.

You want to plead not guiltyThe case will be “remanded” until a later date for a status hearing (or depositions in a case of serious “indictable” offences). You may be remanded in custody or on bail. More information about this is in the next section on “Court bail”.

Before your next hearing you will need to instruct a lawyer, apply for legal aid or, if you decide you want to defend yourself, you will need to get the evidence the Police are relying on for the offence.

You can request “disclosure” of all the evidence from prosecution - the Police have to tell you what evidence they hold against you before they can use it in a court hearing. You should do this in writing to the Officer in charge of your prosecution, citing the Privacy Act and Official Information Act as authority for your requests.

You’re not sure what you want to doThe Duty Lawyer will ask for the case to be remanded to allow you to get legal advice. Usually this will be for two weeks. You will need to instruct your own lawyer, speak to a Community Law Centre or apply for legal aid.

You want to plead guilty to a serious chargeWhere you face the possibility of imprisonment, the Duty Lawyer will decline to enter a guilty plea for you. They will advise you to seek legal advice before you decide to plead guilty and usually seek a remand without plea to allow this to happen.

However, if you still wish to plead guilty, you can do so. The Judge will ask for a pre-sentence report and remand you, possibly in custody or with bail.

Waiting for your case to be calledYou can wait in the back of the court in the public gallery or outside the courtroom itself. You may have to wait a long time before the Judge deals with your case so be prepared to be at court for most of the day.

The court is virtually always open to the public. This means anyone can watch from the back of the public gallery and the media may be there to report on important or noteworthy cases. Your name may be published by the media unless you have name suppression.

Your name will be called when it is time to appear in front of the Judge. If the charge has a possible penalty of imprisonment, you must stand in the dock. If there is no possibility of imprisonment, you can stand outside the dock. If you’re not sure a Court official will tell you.

Judges are referred to as “Your Honour”, Sir or Ma’am (pronounced marm). The courtroom will look similar to this:

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Court bail

If you’ve been remanded because the matter has not been dealt with in your first appearance at court (and most matters aren’t), you will be either remanded at large, (no bail) or bail conditions will be imposed. If bail is not granted you will be kept in custody until your next appearance at court.

Bail may be granted automatically (“as of right”) for some offences. If the offence you are being charged with carries a maximum penalty of less than three years imprisonment, you will be granted bail as of right provided you have a place to live and there is no risk of re-offending or of you failing to appear at court. However, there are two important exceptions to this rule:

If you have been charged with male assault female, assault on a child under 14 or breach of a Protection Order, you are not bailable as of right.

If you have previously been convicted of an offence punishable by imprisonment, you are not bailable as of right.

When you are not automatically eligible for bail, you need to apply for it. For most people the Police agree that bail should be granted and will suggest the conditions they believe are needed for that bail. Conditions that may be imposed include:

Must live at a given address; Must be at that address between given hours and present to Police if and when they check (curfew); Must report to the local Police station regularly (often weekly or twice-weekly on a given day); Not to contact the complainant, the victim or any prosecution witnesses; Not to contact or associate with co-offenders; Not to go near a given address (usually the victim’s); Not to consume alcohol; Not to drive; Surrender your passport.

If both you and the Police agree to proposed conditions, bail can be granted by the Registrar.

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More information

Courts of New Zealand

http://www.courtsofnz.govt.nz/about/system/role/bail.html

Prosecution Defence lawyers

Dock

Registrar

Judge

Public gallery

Witness Box

Press


If you do not agree with the proposed conditions or the Police oppose you getting bail, a Judge will have to decide whether you should be granted bail.

There are three things the Judge must take into account when deciding whether to grant bail: Is there a risk you may fail to appear in court on the date you’ve been remanded to? Is there a risk that you may interfere with witnesses or other evidence? Is there a risk that you may offend while on bail?

The court can also consider other matters, such as: The nature of the offence you’ve been charged with, and how serious it is; The strength of the evidence and the probability of conviction; How serious the possible penalty of the offence is and the likely punishment imposed; Your character and past conduct or behaviour (including proven criminal behaviour); Whether you have a history of offending while on bail, or breaching court orders; The likely length of time before the matter comes to hearing or trial; The possibility of prejudice to the defence in the preparation of the defence if you are remanded in

custody; Any other special matter that is relevant in the particular circumstances.

In some situations the court must also take into account any views of the victim has about whether you should be granted bail.

The rules about granting bail are complex and are found in the Bail Act 2000. You can view them at the site given in the blue box at right (under “Statutes”).

If you breach any condition of bail (e.g. don’t turn up for court at the required date) a warrant for arrest will be issued and the bail is likely to be revoked. If you do not appear in court at the date set this may result in you being charged with a new offence separate to the one you have already been charged with.

If you don’t appear in court when you are supposed to, you will need to go the nearest Police station to make a “voluntary appearance” in court or risk being arrested and held in custody. You will be rearrested and brought before the court at the earliest opportunity.

Pleading not guilty The Duty Lawyer will first ask for the case to be remanded to allow you to get legal advice. Usually this will be for two weeks. You will need to instruct a lawyer, speak to a Community Law Centre or apply for legal aid.

Charges are divided in to three classifications. The way you proceed if you are pleading not guilty depends on how the charge is classified.

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More information

Public Access to Legislation Project

www.legislation.govt.nz

ExampleJohn broke into a house and stole a TV and DVD player. He has been convicted of burglary several times in the past. One year ago he breached the curfew imposed on him by the court as a condition of bail. He has no fixed address. He is likely to be refused Court bail given he has a record of offending on bail. If he has several convictions for the same offence, it is probable that he will be imprisoned if convicted, which is also a factor when considering bail. Time in custody is included as part of the eventual sentence.

ExamplePeter is a 17-year-old college student. He was caught shoplifting a baseball cap from The Warehouse. He was charged and given Police bail. When he appears in Court he will be remanded to complete diversion. The Court will either remand “at large” (ie with no bail conditions) or impose its own bail conditions.


Summary offences A summary offence is generally any minor offence which carries a penalty of up to three months’ imprisonment. This includes most offences punishable solely by a fine and infringement offences. All charges under the Summary Offences Act are summary offences.

Summary offences are dealt with by a Judge (or Justice of the Peace) alone. There is no jury.

When you plead not guilty to a summary offence, you will be remanded for approximately four weeks for a status hearing in the District Court.

You can represent yourself at the status hearing (or bring a “McKenzie Friend” who may be allowed to sit with you and assist you), although it is often more advisable to instruct a lawyer.

Indictable offences Indictable offences are serious crimes, generally with a maximum penalty of greater than 3 months' imprisonment. Indictable means that you have the right to a jury trial. There are two types of indictable offence:

Electable offences Electable offences are indictable offences which may also be tried summarily – i.e. you can elect whether you want to be heard by a Judge alone or by a Judge and jury. Most offences are electable offences. The Crown or the Police can choose whether to lay the charge summarily or indictably. If they have not specified, you get to choose whether you want to be heard by a Judge or a jury.

Purely indictable offencesOffences are usually purely indictable if they carry a maximum penalty of more than 10 years’ imprisonment. They may be heard in the District Court or the High Court. The Judge decides on a sentence once the jury has determined a guilty verdict.

Your lawyer or the Duty Lawyer will advise you if the offence is indictable. If you are being charged with an indictable offence there is a different process after the first appearance. This resource does not deal with those situations and if you have been charged with an indictable offence or are appearing in the High Court, you need to instruct a lawyer or apply for legal aid as soon as possible.

The status hearing

The status hearing is where a not guilty plea is formally entered before a Judge and the legal issues and hearing details discussed (eg. number of witnesses, length of hearing). It also often involves an informal discussion between the Judge, the prosecution and the defendant or their lawyer, about the case.

You have the chance to discuss the charges against you with the Police prosecutor and the Judge, including anything you may disagree with. You can learn what the Police say and present your side of the story and ask questions about anything you don’t understand. The Judge may highlight problems with the Police case or with your defence. You can ask the Judge what the likely sentence would be if you changed your plea to guilty by the Judge.

After you’ve got this information you can decide if you still want to plead not guilty or if you want to change your plea. If you do change your plea, the Judge may sentence you then and there or remand the matter to another day if the Judge needs more information (such as a pre-sentence report).

If you continue with the not guilty plea, a defended hearing will be set down for a future date stipulated by the Judge.

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More information

Ministry of Justice

http://www.justice.govt.nz/pubs/courts/shenglish.html


The defended hearing

The defended hearing usually happens two to three months after the status hearing. This is your opportunity to test the Police case and present your evidence.

Nothing that was said at the status hearing can be used. All the evidence must be presented to the Judge. The prosecution must prove guilt “beyond reasonable doubt” for you to be convicted of the charge.

The prosecutor will start a defended hearing by outlining the circumstances of the case and then present their case by calling witnesses. Each prosecution witness can be cross-examined by the defence lawyer (or you if you are representing yourself). The prosecutor then has the chance to re-examine the witness if a matter raised in cross-examination needs to be clarified.

Once the prosecution has presented their case the defence can call evidence. You, as the defendant, are not obligated to give evidence yourself. If any witnesses are called they can also be cross-examined by the prosecutor.

In some cases a defendant can ask for the case to be dismissed on completion of the prosecution evidence. This application would be on the grounds that the evidence presented does not prove the elements of the offence to the required standard. In these cases the defendant has “no case to answer”.

The Judge can ask questions of any party at any time. Once the defence and prosecution evidence has been heard either party can make submissions to the Judge about the legal aspects of the case.

The Judge will either give a decision then or “reserve” it to be delivered at a later date. Sentencing may also take place then or at a later date if a pre-sentence report is required or if the decision is reserved.

Appeals

If you don’t agree with your conviction or think your sentence is not fair there is the possibility to appeal to the High Court or the Court of Appeal. This is a very complex matter and you should contact a lawyer to give you advice about how to proceed.

The time limit for appeals is generally twenty working days after conviction although this may be extended in special circumstances “with leave” of the court. You should seek advice as soon as you can after the verdict.

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More information

‘A peek in the courthouse’

http://wairarapa.co.nz/times-age/weekly/court.html


Part Two: Sentencing

After being found guilty or pleading guilty, a Judge must decide how to sentence a defendant. The Sentencing Act 2002 provides the principles behind sentencing.

The following pages give an outline of the types of sentences generally available to the court and the main factors influencing the sentencing process.

Part Three uses common examples of offences to show what a likely sentence will be for a first offender.

Diversion

When a first offender faces a minor charge and intends to plead guilty, Police will grant diversion in almost all cases. Diversion allows the Police to withdraw a charge from the court on the condition that you fulfil certain obligations imposed on you by the Police Diversion Officer. This process enables you to accept responsibility for what has happened and respond to it, but gives you the chance to avoid receiving a criminal conviction.

Diversion is available only if the offending is not too serious; and you accept responsibility for your actions by admitting your guilt, and showing

remorse; and generally, this is the first time you have been charged.

Usually the victim’s views about diversion will be considered.

Once you have been found eligible for diversion your court case will be remanded (put off) for you to have a diversion interview with a local Police Diversion Officer. This interview will confirm that you are an appropriate candidate for diversion and will establish what your diversion conditions will be. The conditions will be written up into a diversion agreement that you sign to show that you agree voluntarily to fulfil the conditions.

The conditions have to be appropriate for you and the offending, should not be more than what you may have received in the court process, and achievable in the diversion time frame. They could involve paying money (reparation) to the victim or a charity, making good any damage (eg painting over graffiti), an apology for what you have done, counselling, some form of community work or even meeting with the victim in a restorative justice process (subject to availability of resources in the area).

Diversion is not available for drink driving charges. In some areas of New Zealand getting diversion for offences involving domestic violence or drugs might not be possible as a matter of local Police policy. This is not a general rule and you should always ask for diversion if this is the first time you have been charged.

To find out whether you are being offered diversion, you have to get in touch with the Police, or could do so in Court by asking the Duty Lawyer to consult with the Police.

You may request a review of either the decision to offer diversion (or not), or the diversion conditions. This request can either be written or verbal, but either way you should be told what the result of the review is within 5 working days of the request being received.

Once diversion is completed the police will usually arrange for the charge to be withdrawn without the need for you to be present in court.

If diversion is not granted the normal court procedure will then apply.14

More information

‘Police Adult Diversion Scheme’

http://www.police.govt.nz/service/diversion/


Plea in mitigation

Before the Judge decides on a sentence, the Duty Lawyer or your lawyer (or yourself if you don’t have a lawyer representing you) may give a “plea in mitigation”.

A plea in mitigation is a presentation of all the matters which you consider the court should know before a sentence is imposed. This is a chance for you to explain the reason why the offending took place and the circumstances around it, as well as your personal circumstances and show the Judge why all these things should be taken into account.

Take the following case for example.

The Police Summary of Facts says:

Usually if you have pleaded guilty and the Duty Lawyer is going to enter a plea in mitigation for you, they will explain to the Judge whether the summary of facts is agreed to and give reasons for any disagreement. Where there is serious disagreement that could affect the sentence there may need to be a “fact hearing”. They will outline your personal circumstances (e.g. you have three children and need to be able to drive them to school) and financial situation. They will usually submit to the Judge what they believe is an acceptable penalty for you in all the circumstances. It is then up to the Judge to decide.

The Duty Lawyer will tell the Judge all the relevant circumstances from the offender’s perspective (eg. that this incident happened after the person’s mother’s funeral and when he was upset). A plea in mitigation doesn’t excuse the behaviour and is not a defence. It is an opportunity for the Duty Lawyer to provide the Judge with an explanation of what happened and give another side to the story the Police have told the Judge. It is a very good idea to take proactive action before the sentencing to show you take responsibility for your actions (eg. enrol in a defensive driving course if you are pleading guilty to a careless driving charge or alcohol counselling if the offence involved alcohol).

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On the 23rd day of November 2005 at about 5.32pm, the DEFENDANT was driving east on Main Road approaching a moderate left-hand bend.

He rounded the bend at 50-60 km/hr with the vehicle well inside the fogline, the left wheels of the vehicle left the sealed road and onto the gravel. As a result the vehicle slid sideways.

The driver had overcorrected twice before crossing the centreline into the path of an oncoming vehicle causing them to collide.

Road conditions were wet at the time.

The DEFENDANT has not previously appeared before the Court.


Maximum and mandatory sentences

Every offence contained in law includes a sentencing guideline for Judges. Usually this is by including a maximum penalty in the statute. In some cases, it also includes a minimum “mandatory” penalty.

Maximum sentences are hardly ever imposed. Only the most serious offending will carry the maximum sentence the law provides for a certain crime.

Instead, the Judge starts towards the bottom of the sentencing range and considers factors relating to the offence and to you as a person. These factors are set down in the Sentencing Act 2002.

Judges have the discretion to decide sentences but the Sentencing Act sets out the general purposes and principles of sentencing: it lists aggravating and mitigating factors the court must take into account to the extent they are applicable to the case, it specifies the purpose for which each kind of sentence can be imposed; and it requires Judges to provide reasons, in open court, for the sentence or order given at a level of detail appropriate to the offence.

What sentences are available?

The main groups of sentences and penalties available are:

Custodial sentences Life imprisonmentPreventative detentionImprisonment for a fixed term

Detention sentences Home DetentionCommunity Detention

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Example – Maximum SentenceSection 196, Crimes Act Common Assault“Every one is liable to imprisonment for a term not exceeding one year who assaults any other person.” Anyone who has been charged with common assault can be imprisoned, but this term must be 1 year or less.

Example – Mandatory SentenceSection 58, Land Transport Act Driving while under the influence of alcohol or drugs“(1) A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while under the

influence of drink or a drug, or both, to such an extent as to be incapable of having proper control of the vehicle. (2) If a person is convicted of a first or second offence against subsection (1),—

(a) The maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500; and

(b) The court must order the person to be disqualified from holding or obtaining a driver licence for 6 months or more.”

If you are charged with driving while under the influence of alcohol or drugs you must also be disqualified for driving for at least six months and you may be imprisoned for up to three months or receive a fine of up to $4500.

More information

Public Access to Legislation Project

www.legislation.govt.nz


Community-based sentences Community work Supervision Intensive Supervision

Monetary penaltiesFines Reparation

Minimal outcomesDeferred Sentence Discharge without convictionConviction and discharge

Other penalties Disqualification from drivingConfiscation of vehicle or other property

The most common sentence is monetary – either fines or reparation or both. Almost half of all defendants are given monetary sentences. Approximately a quarter are given community work. Only 10% of charges will result in a custodial sentence.

How does a Judge decide on a sentence?

As every case is different, the Judge will decide on the appropriate sentence by considering all the factors set down in the Sentencing Act. The Judge will start with a general view of the requirements for sentencing and the nature of the offence and then take into account the circumstances of the particular case.

The purposes of sentencing are to: Hold the offender accountable for harm done to the victim and the community by the offending Promote in the offender a sense of responsibility for that harm Provide for the interests of the victim of the offence and provide reparation for harm done Denounce the offender’s conduct Deter the offender or other persons from committing the offence Protect the community from the offender, and Assist in the offender's rehabilitation and reintegration.

The Judge must take into account the seriousness of the offending in the particular case and the seriousness of the type of offence in comparison with other types of offences.

The court is bound to impose the least possible restrictions appropriate in the circumstances. The maximum penalty prescribed for the offence can be imposed if the offending is within the most serious of cases, unless circumstances relating to the offender make that inappropriate.

Any information provided to the court about the effect of the offending on the victim must be taken into account by the court. Also, if there are any particular circumstances relating to the offender that mean that a sentence that would otherwise be appropriate would, in the particular instance, be disproportionately severe, this must be taken into account.

If the offender has offered to make amends to a victim, offered compensation, or taken part in a restorative justice process, this will also be taken into account in sentencing.

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More information

Courts of New Zealand

http://www.courtsofnz.govt.nz/about/system/role/sentencing.html





The Judge is required to sentence you to the minimum possible sentence given the factors above. This means if the penalty for the charge specifies a $2000 fine or 3 months’ imprisonment, the Judge must consider giving you a fine in the first place. If a fine would not satisfy the purposes of sentencing, the next option would be community work. If community work is not appropriate the last option available to the Judge is a custodial sentence.

If a fine would be appropriate, but you can’t afford to pay one, the Judge can impose community work instead.

Reparation is also likely to be imposed as compensation for loss or damage of property and emotional harm to the victim.

The sentencing options available to the Judge have different purposes. It may be appropriate in some circumstances for the sentence to be primarily punitive (a punishment) e.g. community detention, but in other circumstances a primarily rehabilitative approach will be warranted e.g. intensive supervision. The Judge also has the ability to combine sentencing options so that each sentence is appropriate for the individual and the offending e.g. community work and supervision.

In addition to the factors above, the Judge must also consider “aggravating” and “mitigating” factors.

Aggravating and mitigating factors

Aggravating factors are factors which make the crime more serious and will tend to increase the sentence. Aggravating factors include:

The offence involved unlawful entry into, or unlawful presence in, a home (sometimes called a “home invasion”).

The offence was committed while the offender was on bail or still subject to a sentence. The offence involved abusing a position of trust or authority in relation to the victim. The offender committed the offence partly or wholly because of hostility towards a group of persons who

have an enduring common characteristic such as race, colour, nationality, religion, gender identity, sexual orientation, age, or disability; and the hostility is because of the common characteristic; and the offender believed that the victim has that characteristic.

The extent of any loss, damage, or harm resulting from the offence. The offence was committed as part of, or involves, a terrorist act. The victim was particularly vulnerable because of his or her age or health or because of any other factor

known to the offender. If there was any particular cruelty in the commission of the offence. The extent of any loss, damage, or harm resulting from the offence. Premeditation on the part of the offender and, if so, the level of premeditation involved. The existence of any previous convictions.

Mitigating factors are factors which make the offence less serious and will tend to decrease the sentence. They include:

The age of the offender. Whether and when the offender pleaded guilty. The conduct of the victim. If there was a limited involvement in the offence on the offender's part. If the offender has, or had at the time the offence was committed, diminished intellectual capacity or

understanding. Any remorse shown by the offender or if there has been any offer to make amends. Any evidence of the offender's previous good character.

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In sentencing the Judge will look at which factors exist and how to weigh them.

Deferred sentences and discharges

There are three other sentences which are available at the discretion of the Judge: a deferred sentence, discharge without conviction and discharge and conviction.

A deferred sentence is when the Judge orders you to “come up for sentence if called upon” within a certain period. This means that you will be convicted but won’t be punished at this stage. This gives the court the discretion to penalise you for this offence if you commit a second one. If that happens, you’ll receive a sentence for the first and second offences.

The Sentencing Act also gives a Judge the discretion to discharge you without conviction (so that you have no criminal record) or simply to convict and discharge without a penalty.

A discharge without conviction will only happen occasionally as the Judge must be satisfied that if you were convicted “the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence”. A discharge without conviction will rarely be given when an offence carries a mandatory minimum sentence. If you have been charged with a driving offence which carries a mandatory disqualification, the Judge will generally need to find that there are “special reasons” for this mandatory disqualification to be waived before considering your discharge application.

First, the Judge looks at the seriousness of the offending by looking at the particular facts of your case. Secondly, the Judge identifies the direct and indirect consequences of a conviction on you. Then the Judge determines whether those consequences of a conviction would be out of proportion to the gravity of the offending. Evidence such as medical certificates, letters from counsellors and character references are usually needed to persuade the Judge that a discharge would be appropriate.

A conviction and discharge is available if the Judge is satisfied that a conviction is sufficient penalty in itself. You may however still be required to pay reparation if you are convicted and discharged.

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ExampleDavid went into a shop with a gun and told the shop assistant to hand over all the money in the till. She only had $500 to give him. He says he wanted to get some money to buy Christmas presents for his children and since he lost his job he couldn’t afford to buy any. The shop assistant was traumatised by the robbery and still has nightmares. After his arrest he co-operated fully with the police and entered an early guilty plea.Aggravating factors for David are that there would have been some level of premeditation to have a gun involved. The shop also suffered loss (the $500 taken) and there was psychological harm done to the shop assistant. Factors which will be taken into account in mitigation will be that David doesn’t have any previous convictions, he was fully cooperative and he entered a guilty plea early.

ExampleA Police officer was charged with drunk driving in July 2006. He was off-duty and had been drinking when there was a car accident. As he had the only oxygen tanks in the rural area, he drove his Police car 2.5km down the road to the accident site. An evidential blood test came back with 106 milligrams of alcohol per 100 millilitres of blood (the limit is 80 milligrams). If convicted the Police officer faces the real likelihood of loosing his job if convicted.

After he pleaded guilty, the Judge hearing his case discharged him without conviction. The Judge considered there were special reasons including the fact that the policeman knew he risked his career if he helped but still did so anyway, the circumstances leading to the incident, his 16 years as a Police officer, the real risk that he would lose his job if convicted and his longstanding contribution to the community. The consequences of conviction far outweigh the gravity of the offence in the circumstances of the case.


What will I have to do if I receive a monetary penalty?

Monetary penalties include fines and reparation.

Reparation is payment to victims of crime as compensation for: loss of or damage to property; emotional harm; and loss or damage which arises from or is caused by the emotional or physical

harm to the victim or the loss of or damage to property.

The amount is set by the Judge when you are sentenced. It is usually based on information about the amount of damage, the costs to the victim and your ability to pay. Fines are direct penalties for breaching the law. The maximum (and sometimes, minimum) amounts are set down in law.

In addition to fines and reparation, the Judge can order you to pay other costs such as witness costs or technician costs. In most cases you will also be ordered to pay $130 court costs per charge.

If you have received a monetary penalty as a sentence, you will receive a Notice of Fine from the Court a few days after your appearance. You now have 28 days to either pay the fine, appeal it or apply to the Collections Unit at your local Court for an extension of the due date or for payment by instalments.

If you apply for payment by instalments, you will have to provide information about your income and expenses so that a Collections Officer can decide how much money you can afford to pay every week.

If the due date has passed and you have not taken any action, the Court can take enforcement action against you. $100 is added to your fine as an enforcement fee.

In some cases you may be sent a "48 hour" card. You must respond within 48 hours to avoid enforcement action.

The Court can enforce your fine in any of the following ways: your car can be clamped; your property can be taken and sold at public auction; money can be taken automatically from your wages or benefit; you can be arrested and brought before the Court; a charging order can be taken over your property; or money can be deducted directly from your bank account.

Also, if you have any reparation owing, or more than $5000 worth of unpaid fines, you cannot travel overseas unless you have reached an agreement over repayments. You will be stopped at the airport and unless you can resolve the problem then and there, you will not be allowed to travel.

What will I have to do if I’m sentenced to a community-based sentence?

The aim of community-based sentences is to allow a person to make reparation for their crimes and address their offending, while maintaining their normal life and employment. Community-based sentences are often used by Judges as a warning (ie. This is the last chance before prison).

Community work requires offenders to do unpaid work in the community. The aim is to pay something back to the community for the offence committed. It may also provide an opportunity to learn new skills and work habits.

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More information

Department of Justice

http://www.justice.govt.nz/pubs/courts/reparationtovictims.html

More information

Department of Justice

www.fines.govt.nz


A Probation Officer will work with you to determine what sort of community work will be most appropriate given your personal circumstances, skills and the offence you committed.

Judges can order between 40 and 400 hours of community work. The number of hours given will depend on the seriousness of the crime. If you are given 100 hours or less, you will be required to complete the community work within 6 months. If you have more than 100 hours, you must complete at least 100 hours every 6 months. If any community work is deemed unsatisfactory by a probation officer those hours can be deducted from the total hours completed. It is a criminal offence to fail to complete your community work and this requirement is very strictly policed.

If you have been sentenced to 80 hours or more community work the court may authorise a probation officer to use up to 20% of the hours to be spent in training in basic work and living skills. This would only happen if you consented to it.

Supervision is a rehabilitative community-based sentence which requires offenders to address the causes of their offending. Offenders can be sentenced to supervision for any period between six months and one year. Standard conditions are given as part of the sentence and the Judge may also impose special conditions to address your particular offending needs.

Standard conditions include reporting to the Community Probation Service, restrictions on living and work arrangements, and restrictions on associating with people. Special conditions include participation in treatment, personal development or rehabilitative programmes (as long as they are not residential in nature) and addressing any other issues which reduce your risk of re-offending such as alcohol or drug counselling. Breaching a supervision order is a criminal offence and carries a maximum penalty of 3 months imprisonment.

Intensive supervision is a new sentencing option for the court. It is targeted at people convicted of serious offences who are at a higher risk of re-offending. It can be imposed for a minimum of 6 months and up to 2 years. The court must be satisfied that intensive supervision would reduce the likelihood of further offending and that you either need it for longer than 1 year or you need a condition that is not available through supervision (such as a residential drug and alcohol programme).

The standard conditions are similar to supervision, but the special conditions can include a wide variety of programmes including residential programmes, and undertaking training in basic work and living skills. Other special conditions are judicial monitoring (coming back to court every now and then to show the Judge you are complying with your sentence) and the condition to take prescriptive medicine (although this can only be imposed with your consent).

What will I have to do if I get a sentence of detention?

The sentences of home detention and community detention are community based sentences. They operate by restricting your freedom by (usually) electronically monitoring your whereabouts. Home detention has been around for a while but the decision whether or not to grant it used to be up to the Parole Board after sentencing. Now the sentencing judge can impose home detention directly. Before you are sentenced to home detention or community detention a probation officer will provide the court with a pre-sentence report outlining whether these options are recommended by them and the details of the recommendations.

Community detention is like a customised curfew that can be in place for up to 6 months. It will generally be electronically monitored but does not have to be. The curfew period must be for between 2 hours and 84 hours in any week, and the times and address of the curfew have to be set at the time of sentence. The court has to be satisfied that you agree to the conditions, the address is suitable, the occupants of the address agree to it and the address is in an area where community detention is being operated.

Community detention may be appropriate if for example you have been convicted a couple of times of “boy racing” at night-time. The court could identify that it is Friday and Saturday nights that are when your offending

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More information

Department of Corrections

http://www.corrections.govt.nz/public/communityassistance/correctionsinthecommunity/


has occurred and target those times for your curfew. Breaching your community detention is a criminal offence punishable by a maximum term of 6 months imprisonment or a $1500 fine.

Home detention can only be used as a sentence if nothing else would be appropriate and the court would otherwise sentence you to a short term of imprisonment. The length of the home detention sentence must be between 14 days and 12 months. Home detention means you are confined to a particular address all the time unless your probation officer gives you authority to leave that address e.g. for work. Just like community detention, before imposing the sentence of home detention the court must be sure that the offender agrees to the conditions, the address is suitable, the occupants of the address agree and the address is in an area where home detention is operated.

Home detention can be combined with a sentence of reparation, a fine or community work. There are standard conditions of home detention and the court can also impose special conditions. The standard conditions relate to reporting to and complying with directions given by the probation officer, remaining at the home detention residence, possession and production of the home detention order, employment, association, participation in a rehabilitative and re-integrative needs assessment and submission to electronic monitoring of compliance with detention conditions. Special conditions may be imposed in some circumstances relating to your finances, prescription medication (with your consent), a programme, and judicial monitoring.

When the term of home detention is more than 6 months the standard conditions apply to you for another 12 months and the special conditions may apply for some or all of that 12 months. If the home detention is for less than 6 months the court may impose conditions after home detention has ended but it must specify for how long the conditions will last.

If you breach any term or condition of your home detention it is an offence punishable by up to 1 year imprisonment or a $2000 fine. It is also an offence to breach post-detention conditions.

Your entitlements to a benefit are not affected by the fact you are serving a sentence of home detention.

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Part Three: Commonly Occurring Offences

This part of the resource provides information on likely sentences for offences which are often committed by people appearing in the District Court for the first time.

Most of the examples below assume that diversion is not available or has already been given previously. It is Police policy not to allow diversion for drunk driving, refusing to give blood and driving while suspended, disqualified or while forbidden to drive.

Each scenario shows a likely possible outcome from the sentencing process and is intended to give you an idea of what might happen to you if you’re in a similar situation. The sentence for a specific offence varies from court to court and between Judges and cannot be predicted accurately.

Example 1: Drunk driving

Offence: Driving with excess breath alcohol – section 56 of the Land Transport Act 1998.It is an offence to drive a vehicle with an evidential breath test reading of more than 400 micrograms of alcohol per litre of breath, or an evidential blood test reading of more than 80 milligrams of alcohol per 100 millilitres of blood.

Penalty: The penalty for this charge depends on whether you have been convicted of driving with excess breath or blood alcohol previously.

If this is the first or second time you have been convicted of this charge, the maximum penalty is imprisonment of up to 3 months or a fine of up to $4500. The court must disqualify you from driving for 6 months.

If you have been convicted of this charge on more than two previous occasions, (or refusing or failing to give blood), there is a maximum penalty of 2 years in prison and a $6000 fine. The court will order you to be disqualified from holding a drivers licence for at least a year and a day and your car will be confiscated if any of the other offending has been within 4 years of the current offence.

Likely sentence: Martin is 35 and is a first-time offender. He will be disqualified from driving for six months and be fined around $500 plus court costs of $130.

As a general rule, if you are convicted of drunk driving, your fine is around $1 for every unit of breath alcohol or $5 for every unit of blood alcohol. If you elected to have a blood test, you must also pay the doctor’s fee and lab costs for having the blood tested. This is likely to be around $200-$300 extra depending on the time of day/night you were tested.

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Martin (35) is at his best mate’s birthday party. He drinks about a dozen beers and a couple of vodka shots throughout the night. He needs to get home to go to work the following day and doesn’t have any money for a taxi. He figures if he has a couple of hours sleep in his car, he should be okay to drive.

On his way home he is stopped by the Police. He’s asked to do a breath test, which he fails. He is required to accompany the Police back to the Police station for an evidential test, which records 500 micrograms of alcohol per litre of breath. Martin declines to undergo a blood test after this is offered.


Special notes: If Martin had been under 20, there would be a different penalty. If you are younger than 20, you are only allowed to have 150 micrograms of alcohol per litre of breath, or 30 milligrams of alcohol per 100 millilitres of blood. The maximum penalties change to imprisonment of up to 3 months or a $2250 fine and minimum disqualification of three months.If a person under 20 blows more than 400 micrograms they will face the adult charge and the adult penalty accordingly.

When someone fails an evidential breath test, they are given the opportunity to undergo a subsequent blood test. The person has 10 minutes to decide. If they pass the blood test but fail the breath test, no offence is committed.

Example 2: Operating a vehicle causing a sustained loss of traction

Offence: Without reasonable excuse, operating a vehicle in a manner that causes a sustained loss of traction. Section 22A(3) of the Land Transport Act 1998. It is also an offence to drive a motor vehicle in a race or in an unnecessary exhibition of speed or acceleration. These “boy racer” rules are designed to stop dangerous driving on the road.

Penalty: The penalty for this charge is the same as the penalty for dangerous or reckless driving.

The maximum penalty is imprisonment of up to 3 months or a fine of up to $4,500. The Court must disqualify you from driving for a minimum of 6 months.

Likely sentence: Mike will be disqualified from driving for a six months. He is likely to be fined around $300 - $500 and ordered to pay court costs of $130. If he can’t afford to pay the fine (or he has other unpaid fines), he could be sentenced to around 40-60 hours of community work instead.

Special notes: Under s.96(1A) of the Land Transport Act the Police “may” impound cars for 28 days on the roadside when the driver has been charged with operating a vehicle causing a sustained loss of traction. This seems to be a practice which is followed by the police. The offender will have to pay around $400 to recover the car after the 28 days has elapsed.

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Mike has had his car for just under a year. He has spent thousands of dollars on “accessories” and “modifications” and is extremely proud of the vehicle which has proven to be a magnet. However the car has also attracted the attention of the Police who regularly pull him over to check his licence and warrant. One day he looses it after being embarrassed by Police in front of his new girlfriend for the third time in one day. As he accelerates away from the Police he sprays loose metal over the road as a result of a major wheel spin. He is immediately pulled over again and charged with causing a sustained loss of traction. His car is impounded on the spot.


Example 3: Driving while suspended

Offence: Driving while suspended – section 32(1)(c) of the Land Transport Act 1998It is an offence to drive a motor vehicle on a road while your driver licence is suspended.

Penalty: The penalty for this charge depends on whether you have been convicted of driving while disqualified or suspended previously.

If this is the first or second time you have been convicted of this charge (or of driving while disqualified or contrary to a limited licence), the maximum penalty is imprisonment of up to 3 months or a fine of up to $4500. The Court must disqualify you from driving for 6 months or more.

If this is the third or more time you have been convicted of this, there is a maximum penalty of 2 years in prison and a $6000 fine. The court will order you to be disqualified from holding a drivers licence for at least a year.

Likely sentence: Joe will be disqualified from driving for a further six months. This period only begins when his original suspension finishes. All up, he will be disqualified from driving for nine months. He is likely to be fined around $300-500 and ordered to pay court costs of $130. If he couldn’t afford to pay the fine (or he hadn’t paid the speeding tickets he accumulated), he could be sentenced to around 40-60 hours of community work instead.

After his car has been impounded for 28 days, he will need to collect it from the storage provider and pay the storage and towing costs of around $400.

Special notes: If Joe had been driving his mother’s car instead of his own when he got stopped, he would still have had it impounded. His mother could appeal the impoundment to the Police but there are very limited grounds for any appeal, (eg. such as the car was stolen at the time or the owner couldn’t reasonably have known that the person driving was suspended).

Example 4: Refusing to give blood

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Andrea had dinner and shared a bottle of wine at a restaurant with a friend. As she was driving home, the Police stopped her at a checkpoint. She winds down her window and is asked to speak into the “sniffer”. Since she’s not sure if she’ll be over the limit, she panics and refuses to do this. The Police officer then asks her to accompany him to the Police station to give an evidential breath test.

At the station she is unable to provide a breath sample as she is so upset. The Police officer requires her to give a blood test. She refuses to do this as she says she is scared of needles. She is charged with refusing to give blood.

Joe has a modified Subaru Impreza he’s very proud of, and he has the speeding tickets to prove it. After his fifth ticket in a year, he’s accumulated 150 demerit points, enough to have his licence suspended for three months. The Land Transport Safety agent serve a notice of suspension on him at his home.

He is caught one Friday night driving around with his friends. His car is confiscated on the spot and he is charged with driving while his licence is suspended.

More information

Roadside Impoundment and Suspension factsheet

www.communitylaw.org.nz


Offence: Failure or refusal to permit blood specimen to be taken – section 60 of the Land Transport Act 1998It is an offence to fail or refuse to permit a blood specimen to be taken after having been required to do so by an enforcement officer. It is an offence to refuse to give blood even if you might not have been above the legal limit.

Penalty: The penalty for this charge depends on whether you have been previously convicted of drink driving offences or refusing to give blood. If this is the first or second time you have been convicted of this charge, the maximum penalty is imprisonment of up to 3 months or a fine of up to $4500. The Court must disqualify you from driving for 6 months or more.

If this is the third or more time you have been convicted of this (or of drunk driving, driving while under the influence of alcohol or drugs), there is a maximum penalty of 2 years in prison and a $6000 fine. The court will order you to be disqualified from holding a drivers licence for at least a year and a day. Your car will usually be confiscated also.

In addition, the Police officer must suspend your licence for 28 days on the spot any time you refuse to give blood.

Likely sentence: Andrea will be disqualified from driving for six months. This is in addition to the compulsory 28 day suspension she got on the night she was arrested. She is likely to be fined around $500-800 and ordered to pay court costs of $130.

Special notes: Had Andrea already been convicted of drink driving in the last four years, the court must confiscate her car (unless she can prove there would be extreme hardship to herself or undue hardship to another person). The car will be confiscated and sold at public auction. The proceeds are used to cover the costs of the sale, then any money she owes on the car will be repaid, along with any court fines owing. The rest will be paid back to Andrea. She would also be unable to own a car for twelve months after the conviction. To avoid confiscation, an accused should sell their car before the enter a guilty plea and face sentencing

Example 5: Careless driving

Offence: Operating a vehicle on a road carelessly – section 37 of the Land Transport Act 1998It is an offence to operate a vehicle on a road carelessly or without reasonable consideration for other persons using the road.

If you have been involved in any kind of car accident and no one else is at fault, it is generally very difficult to avoid being charged with careless driving.

Penalty: The maximum penalty is a fine of up to $3000. You may be disqualified from driving for any period that the Court sees fit.

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Vanessa is driving home after visiting a friend. She gets lost and turns into a one-way street – going the wrong way. As she turns the corner, she doesn’t see Eric, who is cycling down the street. She hits him and he falls off his bike. Luckily she was going quite slowly and so Eric isn’t injured, although the wheel of his bike is buckled. A passer-by calls the Police and they arrive. After an investigation, Vanessa is charged with careless driving.


Likely sentence: Diversion is possible for a careless driving offence. A discharge without conviction may be possible if Vanessa offers to do a defensive driving course and compensates Eric for the damage to his bike.

However, if the Police don’t agree diversion is an option and the JP’s do not believe a discharge without conviction would be appropriate in the circumstances, it is likely that Vanessa will receive a fine or around $100-200 and court costs of $130. She may be ordered to pay reparation to Eric to compensate him for the cost of fixing his bike. She may also be disqualified from driving for three months.

Special notes: Because this is not an imprisonable offence, a defendant is permitted to plea guilty by letter to the court. If they choose to do this, even though they have received a summons they do not have to attend court.

Example 6: Careless driving causing injury

Offence: Careless driving causing injury – section 38 of the Land Transport Act 1998It is an offence to operate a vehicle on a road carelessly or without reasonable consideration for other persons using the road, and by that act or omission cause an injury to or the death of another person.

Penalty: The maximum penalty is imprisonment of up to 3 months or a fine of up to $4500. The Court must disqualify you from driving for 6 months or more.

Likely sentence: Mary will be disqualified from driving for six months. She may be fined around $500 or ordered to complete community work. She will be ordered to pay court costs of $130 and reparation to Eric for the cost of his bike, his medical costs and possibly compensation for emotional harm.

Example 7: Driving without a licence

Offence: Driving without an appropriate driver licence – section 31 of the Land Transport Act 1998It is an offence to drive a vehicle on a road with an expired driver licence or without an appropriate licence.

Penalty: The maximum penalty is a fine of up to $1000.

Likely sentence: Shannon speaks to the Duty Lawyer at court. The Duty Lawyer talks to the Police for her and they agree that if she gets her licence within six weeks, the Police will withdraw the charge. She is remanded without plea for six weeks to allow this to happen.Shannon is lucky that the Police agree to this – they don’t have to. If they won’t, Shannon is likely to get a fine of around $150.

Special notes: If Shannon had been previously caught driving without a licence and “forbidden to drive”, the Police would have a record of this.

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Mary is driving home after work. She was on her cellphone talking to her daughter when she failed to notice a line of stationary vehicles in front of her. She collides with the last car, which is shunted into a motorcyclist who is thrown off the bike. Robert breaks his leg and his motorbike is written-off.

17-year old Shannon doesn’t have a drivers licence, but she’s learnt how to drive a car from some of her friends. One night when her parents are out at dinner, Shannon takes the car and goes to see one of her mates. On the way back home she is stopped by the Police.

More information

Roadside Impoundment and Suspension factsheet



They will then impound her parents’ car for 28 days. Her parents won’t be able to get the car back before then and will have to pay storage fees of around $400 unless they can prove to the Police that they did everything possible to prevent Shannon from taking the car. Often the Police will require that parents lay a complaint for unlawfully taking a car before they will agree to return it.

Example 8: Shoplifting

Offence: Theft or stealing – section 219 of the Crimes Act 1961It is an offence to:

(a) dishonestly and without claim of right, take any property with intent to deprive any owner permanently of that property or of any interest in that property; or

(b) dishonestly and without claim of right, use or deal with any property with intent to deprive any owner permanently of that property or of any interest in that property after obtaining possession of, or control over, the property in whatever manner.

Penalty: The penalty for theft depends on the value of the property stolen:

Value of property Maximum penalty$1001 + Imprisonment up to 7 years$501 – 1000 Imprisonment up to 1 yearUp to $500 Imprisonment up to 3 months

Even though the Crimes Act doesn’t specifically say it, you can be penalised by having a fine or community work imposed, if the circumstances of the offence don’t warrant the most serious penalty of imprisonment.

Likely sentence: Deb can’t get diversion for this, since it is the second time she’s been charged. In the circumstances she is likely to get a fine of around $100-200 and she’ll pay court costs of $130. If Farmers got the lipstick back in new condition, she will not have to pay reparation. If she’s opened it and used it before the security guard stopped her, she will have reparation of $16.95 imposed also.

Special notes: Convictions for dishonesty have serious implications for future employment and insurance options. A failure to disclose such a conviction at policy renewal time could be grounds for avoidance of a subsequent claim. The Police can also require a DNA sample being given for their database following conviction for theft provided they serve a compulsion notice on the offender within 6 months of conviction.

Example 9: Disorderly behaviour

Offence: Disorderly behaviour – section 3 of the Summary Offences Act 1981It is an offence to behave, incite or encourage any person to behave, in a riotous, offensive, threatening, insulting, or disorderly manner that is likely in the circumstances to

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Deb is in Farmers when she sticks a lipstick worth $16.95 in her bag. She is stopped by a security guard when she walks out and is asked to show them her bag. She does this and the lipstick is found. The Police are called and she is subsequently charged with theft. This is the second time this has happened – six months ago she was caught stealing mascara and was given Police diversion.

Sally is with some of her friends drinking at a bar. She gets into an argument with the bartender and is asked to leave by the bouncer. The Police get called and when they arrive Sally is heard swearing loudly at the bouncer and threatening to have him beaten up.


cause violence against persons or property to start or continue, in or within view of any public place.

Penalty: The maximum penalty is imprisonment of up to 3 months or a fine of up to $2000.

Likely sentence: Sally is likely to receive a fine of $100 - $200 and court costs of $130. The sentence may be reduced if she proves to the court that she is undergoing alcohol counselling.

Special notes: When offending arises because of alcohol or drug related behaviour, it is advisable to seek assistance from an agency such as Care NZ before the court date. A letter confirming that you are getting help will assure the Judge that you are addressing the problem that landed you in court.

Example 10: Receiving stolen property

Offence: Receiving – section 346 of the Crimes Act 1961It is an offence to receive any property stolen or obtained by any other crime, knowing that property to have been stolen or so obtained, or being reckless as to whether or not the property had been stolen or so obtained.

Penalty: The penalty for receiving depends on the value of the property stolen:

Value of property Maximum penalty$1001 + Imprisonment up to 7 years$501 – 1000 Imprisonment up to 1 yearUp to $500 Imprisonment up to 3 months

Likely sentence: Although Lane didn’t exactly know that the laptop was stolen, he could have guessed that given the low price, the sticker and his knowledge of Allan’s previous conviction that it could well have been stolen. In this case his conduct could be viewed as “reckless”. He is likely to receive a fine of around $300 - $500 and court costs of $130 or community work. If the laptop wasn’t recovered then $950 reparation will probably be ordered to the CAB.

Example 11: Burglary

Offence: Burglary – section 346 of the Crimes Act 1961It is an offence to enter any building without authority and with intent to commit a crime in the building or ship.

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Lane buys a second hand laptop from his friend Allan for $200. He’s seen the same computer in shops for around $950. Lane knows that Allan was done for theft a couple of months ago. On the back of the computer there is a sticker that says “Citizens Advice Bureau Porirua”. Allan says that he bought the computer from one of the CAB workers. When Lane tries to sell the laptop to Cash Converters, the Police are called. Lane is questioned and the Police decide to charge him with “receiving” when they discover the computer was recently reported stolen from the CAB.

Tom’s parents’ neighbours are on holiday overseas and his mum is feeding their cat. He takes the key one night while his parents are sleeping and enters into the neighbours’ house. He steals their TV set (worth $500), DVD player ($150) and computer ($1500).

After an investigation, the Police charge Tom with burglary.


In this case, Tom has been charged with burglary because he entered the neighbours’ house with intent to steal the TV (theft).

Penalty: There is a maximum penalty of 10 years imprisonment for burglary.

Likely sentence: Burglary is a serious offence and Tom can expect community work, rather than a fine. He is likely to get around 100 hours of community work, plus having to pay court costs of $130. If the property isn’t recovered, he will also have to pay $2150 reparation for loss of property to the neighbours.

Special note: A conviction for burglary also gives the Police the power to require a DNA sample to be given under the Criminal Investigations (Bodily Sample) Act. This sample can be kept by the Police indefinitely.

Example 12: Wilful damage

Offence: Wilful damage – section 11 of the Summary Offences Act 1981It is an offence to intentionally damage any property or set on fire any tree.

Penalty: There is a maximum penalty of 3 months imprisonment or a fine not exceeding $2000.

Likely sentence: Steve is likely to get a fine of $200 - $300 and reparation for the cost of the tyres. If he’s never been in trouble and has already paid for the tyres, the Judge may decide to convict and discharge him or require him to come up for sentence if called upon.

Example 13: Possession of cannabis

Offence: Possession of a Class C drug – section 9 of the Misuse of Drugs Act 1975It is an offence to procure or have in your possession, consume, smoke, or otherwise use, any controlled drug.

Drugs are classified according to class. Cannabis plant and seed are class C drugs, while cannabis oil and resin are class B.

Penalty: There is a maximum penalty of 3 months imprisonment or a fine not exceeding $500 for possessing Class C drugs.

Likely sentence: Liam is likely to receive a fine of around $150 and court costs of $130.

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Steve’s angry because his girlfriend cheated on him with his best mate, Kieran. He slits the tyres on Kieran’s car one night. As he is doing it, the Police arrive.

Liam buys a couple of tinnies of cannabis from a friend of a friend in a pub on Courtenay Place. Later he is randomly stopped by the Police as he is driving in Willis St to check his breath/alcohol level. He’d recently smoked a joint and after smelling cannabis in the car Steve is searched and one tinnie found in his pocket.


Example 14: Cultivation of cannabis

Offence: Cultivation of prohibited plants – section 9 of the Misuse of Drugs Act 1975It is an offence to cultivate a prohibited plant (which includes cannabis) without a licence.

Penalty: There is a maximum penalty of 7 years imprisonment if the charge is dealt with indictably. If the Police choose to lay it summarily (or you have the option to choose summary jurisdiction), the maximum penalty is 2 years imprisonment and/or a $2000 fine.

Likely sentence: Sandra is likely to receive a fine of around $150 and court costs of $130.

Special notes: It is a mitigating factor that Sandra was only growing the plants for her own use – she did not intend to sell the cannabis.

There is a ‘presumption’ that cannabis plant weighing over 28 grams is possessed for supply, which is a serious offence. The onus is on the defendant to prove that it was for their personal use only.

Example 15: Common assault

Offence: Common assault – section 9 of the Summary Offences Act 1981It is an offence to assault another person.

There is also a charge of common assault in the Crimes Act. You will be charged under the Crimes Act if the assault is more serious.

Penalty: There is a maximum penalty of 6 months imprisonment or a fine not exceeding $4000 under the Summary Offences Act.

Likely sentence: Mark is likely to receive a fine of around $300 and court costs of $130. He could mitigate the sentence by undertaking alcohol counselling and apologising to Sean before the matter is heard in court, or taking part in a restorative justice conference.

Special notes: Under the Crimes Act, the penalty for common assault is a maximum period of 12 months’ imprisonment. If the assault is on a female or a child, the maximum penalty is 2 years.

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Sean and Mark are in a bar in Wellington on Saturday night. After they’ve had a few drinks they start arguing about some money Sean says he lent Mark. Mark says he didn’t borrow any money and ends up grabbing Sean by the shirt and shoving him. Sean falls down and bruises his cheek when he hits a bar stool. An off duty Police officer witnessed the whole argument and Mark is charged with assaulting Sean.

Sandra has seven cannabis plants in her garden for her own use. After they fall out because of a fence dispute, her neighbour calls the Police who discover the plants.


Example 16: Breach of a Protection Order

Offence: Contravention of a Protection Order – section 49 of the Domestic Violence Act 1995It is an offence to do any act in contravention of a protection order without reasonable excuse.


If Neil had breached the order twice in the last three years, he would be liable for up to 2 years imprisonment.

Likely sentence: Neil faces imprisonment only if it is a serious breach. In this case he is likely to receive a fine of around $150 and court costs of $130. He will get a warning to stay away from his wife. With a very minor breach, it is possible to get a deferred sentence.

Special notes: The only time that Neil can visit his ex-wife is when she invites him to or in an emergency. As soon as she wants him to leave, he must do so. The protection order does not prevent his wife contacting Neil and the non-contact provisions can be suspended at will by his ex-wife should she agree to a reconciliation. In that case they can live together but the non-violence conditions still apply.

Example 17: Benefit Fraud

Offence: Section 127 Social Security Act 1964 makes it an offence for a person to make any statement knowing it to be false, or to wilfully omit to do or say anything for the purpose of misleading WINZ as to their eligibility for a welfare benefit.

Penalty: The maximum penalty is 12 months imprisonment or a fine not exceeding $5000 or both.

Likely sentence: If this is the first time Paul has offended he is likely to be convicted and receive 60 –100 hours community work.

Special Notes: Because this is a WINZ matter, the case will be prosecuted by the Ministry’s prosecutor and not the Police. Because of this Police diversion is not available to first time offenders.

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Neil’s ex-wife has a Protection Order against him because Neil had beaten her up when he was drunk several times. He is therefore forbidden to contact her. One night he comes to her flat and tries to talk to her about getting back together. He has been drinking again.

She tells him to leave and when he doesn’t, she calls the Police. They come and arrest Neil. He spends the night in the cells after being charged with breaching the Protection Order.

Paul has been on the unemployment benefit for 3 years. During that time he worked “under the table” for his brother-in-law for about 9 months. He falls out with another family member who reports the fact he was working to Work and Income. He is investigated by the Ministry and eventually summonsed to appear in court for failing to notify WINZ of his earnings. WINZ allege that he wrongfully claimed $5,800 over the months he was working.

More information

Self help guides to protection orders



Example 18: Dishonestly using a document

Offence: Dishonestly using a document – section 228 of the Crimes Act 1961It is an offence to dishonestly take a document or use a document with intent to obtain any property or pecuniary advantage.

Penalty: There is a maximum penalty of 7 years imprisonment.

Likely sentence: John is likely to get around 60 hours of community work for this offence. He will also have to pay $200 reparation to the victim (or their bank) and $130 court costs.

Special notes: A credit card, although made of plastic, is defined as a document for the purposes of the Crimes Act.

Example 19: Resisting Police

Offence: Resisting a Police officer – section 23 of the Summary Offences Act 1981It is an offence to resist any constable acting in the execution of his/her duty.


Likely sentence: Peter is likely to get a fine of $150 and court costs of $130. He could mitigate the sentence by apologizing to the Police officer (by letter) before the matter is heard in court and providing a copy of that letter to the Duty Lawyer. He will also be convicted on the disorderly conduct charge. In some cases, the Police are prepared to withdraw some charges if and offender agrees to plead guilty on other charges. In this case, Peter could ask the Duty Lawyer to see if Police will withdraw the resisting arrest if he pleads guilty to the disorderly conduct charge at the first appearance.

Special notes: It is also an offence to encourage any other person to resist the Police. For example, Peter’s friend Bob shouts out to Peter from across the road, “Don’t listen to the Police officer Peter, just walk away!” Bob may also be charged with resisting a Police officer.

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John finds someone’s wallet when he’s on the bus. He leaves it there but takes the credit card out of it. He uses the card to buy $200 worth of groceries before the card is cancelled.

Peter has had too much to drink and is making a nuisance of himself at the local shopping centre. The local community constable is called and after Peter refuses to leave the area the Police officer puts his hand on Peter’s right shoulder and states that Peter is arrested for disorderly conduct. Peter pushes the officer’s hand away from him and walks off. He is arrested charged with disorderly conduct and resisting a Police officer.


Example 20: Trespass

Offence: Trespass – section 3 of the Trespass Act 1980Every person commits an offence who trespasses on any place and, after being warned to leave that place by an occupier of that place, neglects or refuses to do so.

Penalty: There is a maximum penalty of a fine not exceeding $1,000 or to imprisonment for a term not exceeding 3 months.

Likely sentence: Billie is likely to get a fine of $150 and court costs of $130.

Special notes: There is a special defence to a trespass charge – the defendant must prove that it was necessary for them to remain in or on the place concerned for their own protection or the protection of some other person, or because of some emergency involving their property or the property of some other person.

If you have been served with a trespass notice to stay away from somewhere and you are found on that property, you will be charged with trespass.

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Billie goes to the White Swan Pub one Friday night after work. Billie meets up with a group of mates from work and the group order jugs of tequila. Billie quickly becomes intoxicated and begins shouting expletives to the dismay of the people around her. At one point she gets aggressive towards a young woman who was wearing the same top as she was. Roger the Publican asks Billie to leave the White Swan Pub because of her behaviour. Billie refuses to leave and instead pushes Roger away and continues drinking. Roger subsequently calls the Police, and shortly after the Police arrive and arrest Billie for trespass.


GlossaryDistrict Court The District Court deals with minor criminal offences and civil claims. There are 66

District Courts in New Zealand. District Courts are near the bottom of the Court structure.

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Life imprisonment An indeterminate sentence of imprisonment (i.e. the sentence continues to apply for the entire life of the offender, although the offender can be released on parole) that is generally only imposed on offenders convicted of murder.

Prisoners are only eligible for parole after serving the minimum period of imprisonment set by the court (the minimum term for which is ten years).

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McKenzie Friend A person who is given approval by the Judge to assist a non-represented person in court is called a “lay assistant” or “McKenzie Friend”. The person is there to provide moral support and advice. They are allowed to speak quietly with the defendant and take notes, but they cannot act as a legal representative or address the court.

Generally a person will have to advise the Judge that they are bringing a McKenzie friend. There is no “right” to have a McKenzie Friend in the New Zealand courts. The McKenzie Friend may have to sign a confidentiality agreement before they are allowed to appear.

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Name suppression If you have been charged with a criminal offence and are awaiting trial or sentencing, you may apply to the court for an order suppressing publication of your name. An order for permanent suppression is extremely difficult to get. The court will usually only grant a permanent order if publishing your name would lead to the identification of a victim or if exceptional circumstances outweigh the public interest in having an open court.

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Supreme Court

Court of Appeal

High Court

Tribunals and Authorities

District Court (including Youth and

Family Courts)

Employment Court

EnvironmentCourt

Maori Land Court

Courts Martial Appeal Court

Maori AppellateCourt


Sometimes, the court will grant a temporary order preventing publication of your name for a limited period of time (e.g. 48 hours). Usually this will be done to give defendants the opportunity to inform family, friends or their employers of their situation.

If you are convicted of an alcohol or drug-related driving offence, your name can be published in the newspaper, along with the charge and details of the sentence imposed. Section 66 of the Land Transport Act prohibits suppression of your name for these charges unless there are exceptional circumstances.

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Pre-sentence A pre-sentence report is prepared by the Department of report Corrections before a person is sentenced, whenever it is

possible that the person will be imprisoned.

A probation officer will interview you to find out more about the background of the offending and your personal circumstances. The report will also contain an assessment of how willing you are to change your behaviour and any voluntary programme attended to prove this. The report will give a recommendation for the Judge on the type of sentence which might be appropriate.

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Preventative Preventive detention is an indeterminate, life-long sentence, which is imposed on the detention highest-risk offenders and which means they need never be released from jail if they are

still considered a risk to the community. Those who are released can be recalled at any point for the rest of their lives. It is only imposed on serious, repeat offenders.

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Restorative justice Restorative justice is a process that aims to put things right for the people who have been victims of offences. In New Zealand, the main way it does this is through a meeting between the victim and offender called a restorative justice conference.

Court-referred restorative justice conferences have been trialled in New Zealand recently for certain criminal offences. At a conference victims can have a say and focus on their needs and offenders have the chance to talk about what they have done and take responsibility for putting things right. Conferences are safe and private and run by trained facilitators. Victims and offenders are encouraged to have support people with them. The conference is voluntary and only takes place if the victim and the offender both agree to participate.

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Variation of It is possible to apply to the court for a variation of a sentence of community work. Community work: If, for example, an offender finds work and is having difficulty with the sentence, they can

apply to the court to have it converted to a fine. The application needs the support of Community Corrections. A sample form is available here.

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More information

Department of Corrections

http://www.corrections.govt.nz/public/policyandlegislation/cps/volume-1/part-2/chapter-1/about-pre-sentence-reports.html

More information

Ministry of Justice

http://www.justice.govt.nz/cpu/restorative-justice/restorative.html


Summary of Facts The Summary of Facts gives a short statement about what the offence you have been charged with relates to. It gives the potential penalties of the charge and also includes whether you have previous convictions or not. The Judge has this in front of them when they decide on sentencing. It will also be read aloud in court by the Police Prosecutor.

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37

CAPTION SUMMARY

POLICE vs Anthony Arnold BROWN-SMITH 22 The WayTitahi BayPORIRUA

D.O.B: 16.12.1953AGE: 53OCC: General Hand

CHARGE(S): OPERATED A VEHICLE CARELESSLY [Section 37 Land Transport Act 1998]

Penalty: Max $3,000 fine, may be disqualified

SUMMARY OF FACTS

On the 23rd day of November 2005 at about 5.32pm, the DEFENDANT was driving east on Main Road approaching a moderate left-hand bend.

He rounded the bend at 50-60 km/hr with the vehicle well inside the fogline, the left wheels of the vehicle left the sealed road and onto the gravel. As a result the vehicle slid sideways.

The driver has overcorrected twice before crossing the centreline into the path of an oncoming vehicle causing them to collide.

Road conditions were wet at the time.

The DEFENDANT has not previously appeared before the Court.


Summons A summons is an official command from a court requiring someone to appear in court to be tried for a criminal offence. This is the normal way of dealing with most offences, especially minor ones. An information is filed in the court and then the Court will mail the defendant a summons. It is a standard form which will have been typed over to include all the details about the defendant and the offence.

On the following example, words in italics are the added details of the defendant.

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38

SUMMONS JUSSP0001cOMP

IN THE DISTRICT COURT AT PORIRUA CRN 06091010511

SEX MALE Date of Birth 16/12/1953 Country of birth NEW ZEALAND

Occupation GENERAL HAND LIC. No. ACG05512381

Type of case SUMMONSLicense issued or renewed by

DAVID SAMUEL HARVEY , of WELLINGTONCONSTABLE , has said on oath that he has just cause to suspect and does suspect that

you the said

ANTHONY ARNOLD BROWN-SMITH(within the space of six months last past,

namely)on THE 23RD DAY OF NOVEMBER 2006at TITAHI BAY , did commit an offence against

LAND TRANSPORT ACT 1998 SECTION 37(1)

in that you OPERATED A VEHICLE ON A ROAD NAMELY MAIN ROAD CARELESSLY

being an offence punishable summarily

YOU ARE SUMMONED to appear on MONDAY THE 13TH DAY OF DECEMBER 2006 AT 10:00AM

Dated at WELLINGTON at the District Court at PORIRUA

this 30TH DAY OF NOVEMBER 2006 to answer the information E W Smith Justice of the Peace(Deputy) Registrar (Not being a Constable)

Please present this summons or quote this number when writing or calling

ANTHONY ARNOLD BROWN-SMITH 22 THE WAYTITAHI BAYPORIRUA

INSTRUCTIONS

IT IS IMPORTANT that you read all of this document CAREFULLY.

For information on HELP or ADVICE read the back of this form.

If you are in DOUBT or have ANY QUESTIONS get in touch with your Solicitor or the Registrar of any Court immediately.


Victim Impact A Victim Impact Statement provides the opportunity for victims to give information about Statement how a crime has affected them and impacted on their lives.

It will include information on physical or emotional harm, loss of or damage to property, and any other effects the victim has experienced because of the offence. It does not include what the victim thinks the sentence should be.

It may be submitted by the victim in writing, tape or video and the content will be read by the Judge and taken into account at sentencing. It is the responsibility of the Prosecutor to ensure that a Victim Impact Statement is prepared.

Back to section

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More information

Victims Rights Act 2002

http://www.justice.govt.nz/pubs/courts-publications/050-services-for-victims.html

INDEPENDENT POLICE CONDUCT AUTHORITY

I want to make a complaint

CONFIDENTIAL: NO information you provide will be released except to the Police wihtout your specific authorisation.

Level 10, Baldwin Centre342 Lambton QuayWellington

Telephone (04) 499 2050Toll-free 0800 503 728 (24 hours)Facsimile (04) 499 2053

Correspondence to:PO Box 5025, WELLINGTON

SPECIAL INSTRUCTIONS FOR CONTACT

COMPLAINANT

YOUR NAME

YOUR POSTAL ADDRESS

Mr / Mrs / Miss Christian NamesMs / Other

Surname

Number Street

Suburb City STD Telephone No

OTHER PERSONS INVOLVED

HIS/HER NAME

Mr / Mrs / Miss Christian NamesMs / Other

Surname

Number StreetYOUR POSTAL ADDRESS

Suburb City STD Telephone No

POLICE OFFICERS INVOLVED

NAME

STATION

RANK

COLLAR No

CAR No

IN UNIFORM?

AGE (approx)

DESCRIPTIONAND

APPEARANCE

YES NO YESYESYES NO NONO

REQUEST FOR ADJOURNMENT / TRANSFER

THE CONDUCT COMPLAINED OF Please give as precise and accurate details of the time and place of the incident as you can.

WHEN DID IT HAPPEN?

DAY

DATE

WHERE DID IT HAPPEN?

TIME

THE COMPLAINTDescribe what happened and the conduct of any Police officers you wish to complain about. Add extra pages if necessary.

SIGNED ……………………………………………………………………………………….. DATE …………………………………

CRN ………………………...

BETWEEN POLICE (Informant)

AND …………………………………………Name

…………………………………………Address

…………………………………………

………………………………………… (Defendant)Occupation

NAME OF SOLICITOR FOR DEFENDANT Not applicable

ADDRESS FOR SENDING OF NOTICE ……………………………………………………………….

PRESENT DATE OF HEARING ……………………………………………… COURT …………………….

PROPOSED NEW DATE OF HEARING ……………………………………. COURT …………………….

I request that the (preliminary) hearing of the charges / informations be adjourned / transferred to the

District Court at …………………………………… on …………………………………………… because:

……………………………………………………………………………………………………………………….

.

……………………………………………………………………………………………………………………….

………………………………………………………………………………………………………………………

I INTEND TO PLEAD Guilty

DATE ……………………………………….. Signed ……………………………………………………Defendant

FOR OFFICE USE ONLY

Consent obtained Y / N From …………………………………………………………………………………………..

APPLICATION GRANTED / REFUSED

FOR HEARING ON …………………………………………………………….. AT ……………………………………………………

DEPUTY REGISTRAR

Notice of Adjournment to Informant on ……………………………………….. by Post / Fax / Hand

Defendant on ………………………………………. By Post / Fax / Hand

CR Sheet Noted Stats Noted Fixtures Diary Noted Computer Updated

IN THE DISTRICT COURTAT ____________________

CRN ______________________

IN THE MATTER OF Sections 68 and 72 of the Sentencing Act 2002

AND

IN THE MATTER OF an application by ___________________________________

of _______________________________________________

_________________________________________________

Occupation _______________________________________

To have the sentence of community work imposed on ___________________________ reviewed.

TO: The Registrar of the District Court at ____________ andTO: The Warden, Community Corrections, _____________

I, ____________________________________ of ______________________________

_______________________________________, ______________________________

WILL APPLY to the Court at on the ____ day of ___________ 200 at ______________ am/pm

For the sentence of community work imposed on _____________________ to be reviewed

UPON THE FOLLOWING GROUNDS:

1. THAT I was sentenced to _________ hours community work in the District Court

at __________________ on ____________________ following conviction for

______________________________ _________________________

_______________________________________________________

2. I HAVE completed _____________ hours of this sentence.

3. THAT circumstances have changed since the sentence was imposed that would justify the variation of the sentence and that variation of the sentence will not be contrary to the interests of the community or myself [details of how and why sentence should be varied]:

4. THAT _______________________________________________________________

______________________________ __________________________

______________________________ __________________________

______________________________ __________________________

5. THAT _______________________________________________________________

______________________________ __________________________

______________________________ __________________________

______________________________ __________________________

6. THAT _______________________________________________________________

______________________________ __________________________

______________________________ __________________________

______________________________ __________________________

7. THAT _______________________________________________________________

______________________________ __________________________

______________________________ __________________________

______________________________ __________________________

Dated this ___________ day of ___________________ 200

___________________________Applicant

Presented by filing by: ____________________________________________________

Address: _______________________________________________________________

MEMORANDUM

IN THE DISTRICT COURTAT ____________________

CRN ______________________

IN THE MATTER OF Sections 68 and 72 of the Sentencing Act 2002

AND

IN THE MATTER OF an application by ___________________________________

of _______________________________________________

_________________________________________________

Occupation _______________________________________

To have the sentence of community work imposed on ___________________________ reviewed.

MAY IT PLEASE YOUR HONOUR

I, ________________________________________ the Warden, Community

Corrections Centre, , does not oppose the above application and

given the urgency of the situation the matter should be placed before the Court at the

earliest opportunity.

I do however wish to be advised of the date and time of the hearing so that the

Department can be present to answer any questions the Court may ask.

Dated this ________ day of ________________________ 200___

________________________________

The Warden, Community Corrections Centre,

A Guide to Criminal Offending and Sentencing 4 (1)

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Transcript of A Guide to Criminal Offending and Sentencing 4 (1)