Contents

Chapter 7
Inherent jurisdiction, prosecutions
and penalties

Setting penalties

7.59There is no agreed method for setting maximum penalties of offences in New Zealand. The Legislation Advisory Committee Guidelines on Process and Content of Legislation,612 which are a guide to making good legislation, state that maximum penalties should not be disproportionally severe, but should reflect the worst case of offending covered by the offence.613 The maximum penalty will also impact upon the procedure that the courts will adopt, including whether the High Court can hear the case and whether the defendant has the right to elect trial by jury.
7.60In setting maximum penalty levels for the proposed new offences in this Report, we note that the Supreme Court in the first Siemer case decided the maximum penalty allowed by the common law for contempt must be less than that specified in section 24(e) of the New Zealand Bill of Rights Act 1990 (NZBORA), which guarantees a person charged with an offence the right to a jury trial.614 As we have already noted,615 at the time of the Court’s decision the right to a jury trial was guaranteed when the penalty for an offence was a maximum of more than three months’ imprisonment, so the maximum sentence that could be imposed for contempt was three months. In 2013, section 24(e) of NZBORA was amended to increase the penalty maximum after which a person is guaranteed the right to a jury trial to two years or more. A consequence of that change has been the increase in the maximum term of imprisonment for contempt to two years. We have taken this into account in determining penalty levels for the proposed new offences.
7.61In Tables 1 and 2, we set out the new offences616 and quasi-offences617 we have recommended. We also set out our proposed maximum penalties and provide the rationale for these levels in our discussion below.

7.62To assist in setting maximum penalty levels for the proposed new offences, we considered some examples of the maximum penalties for similar current offences (Table 3) and quasi-offences (Table 4).

7.63In doing so, we are conscious of the Legislation Advisory Committee Guidelines on Process and Content of Legislation which state that references to similar offences must be done with care. New Zealand has not adopted the inflation-adjusted penalty unit system found in many other jurisdictions and therefore when comparing offences in different statutes, the penalties may be unduly low simply because of the age of the statute, and therefore not necessarily provide an accurate guide.618

7.64In the examples of similar current offences and their penalties it is difficult to find consistency of penalty. Given the underlying policy rationale for each of our recommended offences is to protect the administration of justice and maintain public confidence in the justice system, we have started with the approach that there should be similar penalties for each offence. We have then, however, considered whether any are more or less serious. In setting maximum penalties we have been particularly influenced by the penalty levels recently set for the newly created offences in the Harmful Digital Communications Act 2015 and also those that apply for breaches of suppression orders in section 211 of the Criminal Procedure Act.

7.65We consider the offence of publishing a false allegation or accusation against the judiciary where there is a real risk the publication could undermine public confidence in the independence, integrity or impartiality of the judiciary is more serious than the other new offences. We consider the seriousness of the offence is similar to the new offence of causing harm by posting digital communications under section 22 of the Harmful Digital Communications Act, which carries a similar penalty as that recommended here. In view of the more serious nature of this offence we have recommended the maximum penalty for the offence should be a term of imprisonment up to but not including two years or a fine not exceeding $50,000, or a fine not exceeding $100,000 for a corporate defendant.

7.66For the other new offences, for individuals, we have set a maximum term of imprisonment not exceeding three or six months and maximum fines not exceeding $10,000 or $25,000, depending on the gravity of the offence. For the strict liability offences, breaching suppression and take down orders, the maximum penalty is limited to a fine. For corporate defendants we have set a fine not exceeding $100,000 and reduced this to $40,000 for strict liability offences.

recommendations


Table 1: New offences recommended in Report
Chapter Offence Proposed maximum individual penalty Proposed maximum corporate penalty
Chapter 2 It would be an offence to intentionally publish information that is relevant to any trial where there is a real risk that the publication of that information prejudices a fair trial. A term of imprisonment not exceeding 6 months or a fine not exceeding $25,000. Fine not exceeding $100,000.
Chapter 2 It would be an offence to knowingly or recklessly publish material in breach of the statutory prohibition, a suppression order or a take down order. A term of imprisonment not exceeding 6 months or a fine not exceeding $25,000. Fine not exceeding $100,000.
Chapter 2 It would be an offence to publish material in breach of the statutory prohibition, a suppression order or a take down order. [strict liability] Fine not exceeding $10,000. Fine not exceeding $40,000.
Chapter 4 It would be an offence for a member of the jury constituted for a trial to intentionally investigate or research information when he or she knows or ought reasonably to know that it is or may be information relevant to the case. A term of imprisonment not exceeding 3 months or a fine not exceeding $10,000. N/A
Chapter 4 It would be an offence for any person, including a person who is serving or has served on a jury, to intentionally disclose, solicit or publish details of a jury’s deliberations. A term of imprisonment not exceeding 3 months or a fine not exceeding $10,000. Fine not exceeding $40,000.
Chapter 6 It would be an offence to publish an untrue allegation or accusation against a judge or the court where there is a real risk that the publication could undermine public confidence in the independence, integrity or impartiality of the judiciary or a court. A term of imprisonment of up to 2 years or a fine not exceeding $50,000. Fine not exceeding $100,000.
Chapter 6 It would be an offence to knowingly or recklessly breach a take down order or other order made under R48. A term of imprisonment not exceeding 6 months or a fine not exceeding $25,000. Fine not exceeding $100,000.
Chapter 6 It would be an offence to breach a take down order or other order made under R48. [strict liability] Fine not exceeding $10,000. Fine not exceeding $40,000.


Table 2: New quasi-offences recommended in Report
Chapter Quasi-offence Maximum individual penalty Maximum corporate penalty
Chapter 3 Disruptive behaviour in the courtroom, including disrupting proceedings or disobeying a court order in the course of proceedings. Imprisonment not exceeding 3 months or a fine not exceeding $10,000. N/A
Chapter 5 Breach of or failure to comply with an applicable court order. Imprisonment not exceeding 6 months or a fine not exceeding $25,000. Imprisonment not exceeding 6 months or a fine not exceeding $25,000 may be imposed on director or officer.


 

Table 3: Some examples of similar current offences and their penalties
Section Offence Maximum individual penalty Maximum corporate penalty
s 211(1) Criminal Procedure Act 2011 The offence covers knowingly or recklessly publishing material in breach of a suppression order. A term of imprisonment not exceeding 6 months. Fine not exceeding $100,000.
s 211(2) Criminal Procedure Act 2011 The strict liability offence covers the publishing of material in breach of a suppression order without lawful excuse. A fine not exceeding $25,000. Fine not exceeding $50,000.
s 32 Juries Act 1981 The offence covers failure to attend for service or serve when called upon. Fine not exceeding $1,000. N/A
s 32A Juries Act 1981 The offence covers employers who dismiss a person on jury service. Fine not exceeding $10,000. Fine not exceeding $10,000.
s 32B Juries Act 1981 The offence covers publication of information that identifies a juror. Term of imprisonment not exceeding 3 months and/or fine not exceeding $10,000. Fine not exceeding $10,000.
s 21 Harmful Digital Communications Act 2015 The offence covers failure to comply with an order made under the Act. Term of imprisonment not exceeding 6 months or a fine not exceeding $5,000. Fine not exceeding $20,000.
s 22 Harmful Digital Communications Act 2015 The offence covers causing harm by posting digital communications. Term of imprisonment not exceeding 2 years or a fine not exceeding $50,000. Fine not exceeding $200,000.


Table 4: Some examples of quasi-offences and their penalties
Section Quasi-offence Maximum individual penalty Maximum corporate penalty
s 212 District Court Act 2016 Disruptive behaviour in the courtroom, including disrupting proceedings or disobeying a court order in the course of proceedings. A term of imprisonment not exceeding 3 months or a fine not exceeding $1,000. N/A
s 165 Senior Courts Act 2016 Disruptive behaviour in the courtroom, including disrupting proceedings or disobeying a court order in the course of proceedings. A term of imprisonment not exceeding 3 months or a fine not exceeding $1,000. N/A
s 134 District Court Act 2016 Breach of or failure to comply with a relevant court order. A term of imprisonment not exceeding 3 months or a fine not exceeding $1,000. N/A
612Since the disestablishment of the Legislation Advisory Committee, the Legislation Design and Advisory Committee is responsible for the LAC Guidelines on Process and Content of Legislation.
613Legislation Advisory Committee “Legislation Advisory Committee Guidelines” (October 2014) <www.ldac.org.nz> at [21.6].
614Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767.
615See chapter 5 at [5.30].
616An offence is one prosecuted by the filing of a charging document in the District Court under s 14 of the Criminal Procedure Act 2011.
617A “quasi-offence” as we have referred to it, is the continuation of the current hybrid offence used for contempt.
618Legislation Advisory Committee, above n 613, at [21.6].