User:Lcmortensen/Sentencing Act 2002

The Sentencing Act 2002 is an Act of Parliament in New Zealand, which details sentencing or otherwise dealing with an offender guilty of a criminal offence.

The Sentencing Act applies to all offenders aged 17 and over, and those offenders under 17 who are sentenced in the adult courts.

Purposes
Section 7(1) of the Act lists the purposes for which a court may sentence or otherwise deal with an offender. The purposes are:
 * to hold the offender accountable for harm done to the victim and the community by the offending
 * to promote in the offender a sense of responsibility for, and an acknowledgment of, that harm
 * to provide for the interests of the victim of the offence
 * to provide reparation for harm done by the offending
 * to denounce the conduct in which the offender was involved
 * to deter the offender or other persons from committing the same or a similar offence
 * to protect the community from the offender (incapacitation)
 * to assist in the offender’s rehabilitation and reintegration

Section 7(2) specifies that the purposes are listed in random order and therefore does not imply any purpose should be given greater weight than any other purpose.

Principles
In sentencing or otherwise dealing with an offender the court—


 * must take into account the gravity of the offending, including the degree of culpability
 * must take into account the seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed
 * must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate
 * must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate
 * must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances
 * must take into account any information provided to the court concerning the effect of the offending on the victim
 * must impose the least restrictive outcome that is appropriate in the circumstances
 * must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe
 * must take into account the offender’s personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose
 * must take into account any outcomes of restorative justice processes that have occurred, or that the court is satisfied are likely to occur, in relation to the particular case.

Aggravating and mitigating factors
In sentencing or otherwise dealing with an offender the court must take into account the following aggravating factors to the extent that they are applicable in the case:
 * that the offence involved actual or threatened violence or the actual or threatened use of a weapon:
 * that the offence involved unlawful entry into, or unlawful presence in, a dwelling place:
 * that the offence was committed while the offender was on bail or still subject to a sentence:
 * the extent of any loss, damage, or harm resulting from the offence:
 * particular cruelty in the commission of the offence:
 * that the offender was abusing a position of trust or authority in relation to the victim:
 * that the victim was a constable, or a prison officer, acting in the course of his or her duty:
 * that the victim was an emergency health or fire services provider acting in the course of his or her duty at the scene of an emergency:
 * that the victim was particularly vulnerable because of his or her age or health or because of any other factor known to the offender:
 * that 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:
 * that the offence was committed as part of, or involves, a terrorist act (as defined in section 5(1) of the Terrorism Suppression Act 2002):
 * the nature and extent of any connection between the offending and the offender’s—
 * participation in an organised criminal group (within the meaning of section 98A of the Crimes Act 1961); or
 * involvement in any other form of organised criminal association:
 * premeditation on the part of the offender and, if so, the level of premeditation involved:
 * the number, seriousness, date, relevance, and nature of any previous convictions of the offender and of any convictions for which the offender is being sentenced or otherwise dealt with at the same time:
 * any failure by the offender personally (or failure by the offender’s lawyer arising out of the offender’s instructions to, or failure or refusal to co-operate with, his or her lawyer) to comply with a procedural requirement that, in the court’s opinion, has done either or both of the following:
 * caused a delay in the disposition of the proceedings:
 * had an adverse effect on a victim or witness.

In sentencing or otherwise dealing with an offender the court must take into account the following mitigating factors to the extent that they are applicable in the case:
 * the age of the offender:
 * whether and when the offender pleaded guilty:
 * the conduct of the victim:
 * that there was a limited involvement in the offence on the offender’s part:
 * that the offender has, or had at the time the offence was committed, diminished intellectual capacity or understanding:
 * any remorse shown by the offender, or anything as described in section 10:
 * that the offender has taken steps during the proceedings (other than steps to comply with procedural requirements) to shorten the proceedings or reduce their cost:
 * any adverse effects on the offender of a delay in the disposition of the proceedings caused by a failure by the prosecutor to comply with a procedural requirement:
 * any evidence of the offender’s previous good character:
 * that the offender spent time on bail with an EM condition as defined in section 3 of the Bail Act 2000.

Nothing in subsection (1) or subsection (2)—
 * prevents the court from taking into account any other aggravating or mitigating factor that the court thinks fit; or
 * implies that a factor referred to in those subsections must be given greater weight than any other factor that the court might take into account.

Sentences and orders
Section 10A of the Act specifies the hierarchy of sentences and orders. From least restrictive to most restrictive, these are:-
 * discharge or order to come up for sentence if called on
 * monetary penalties (fine, reparation)
 * low-level community sentences (community work, supervision)
 * high-level community sentences (intensive supervision, community detention)
 * home detention
 * imprisonment

Community work
Section 55 to 69A

Supervision and intensive supervision
Section 45 to 54A Section 54B to 54L

Community detention
Section 69B to 69M

Home detention
Section 80A to 80ZI

If the offender was aged under 17 at the time of the offence, the court can only sentence an offender to home detention for a category 4 offence, or an offence where the maximum penalty available is 14 years imprisonment or more. (section 15B)

Imprisonment
If the offender was aged under 17 at the time of the offence, the court can only sentence an offender to imprisonment for a category 4 offence, or an offence where the maximum penalty available is 14 years imprisonment or more. (section 18)

Life imprisonment
Life imprisonment is the mandatory penalty for treason, the presumptive penalty for murder, and is the maximum penalty for manslaughter and class A drug offences.

Sections 102 through 104 deal with sentencing an offender to life imprisonment for murder.