Sentencing Act 2002

1: Title
This Act is the Sentencing Act 2002.
2: Commencement
1: This Act comes into force on a date to be appointed by the Governor-General by Order in Council.
2: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 2(1) brought into force 30 June 2002 Sentencing Act Commencement Order 2002 Section 2(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
1: Sentencing purposes and principles, and provisions of general application
Preliminary provisions
3: Purposes
The purposes of this Act are—
a: to set out the purposes for which offenders may be sentenced or otherwise dealt with; and
b: to promote those purposes, and aid in the public's understanding of sentencing practices, by providing principles and guidelines to be applied by courts in sentencing or otherwise dealing with offenders; and
c: to provide a sufficient range of sentences and other means of dealing with offenders; and
d: to provide for the interests of victims of crime.
4: Interpretation
1: In this Act, unless the context otherwise requires,— biometric information section 2(1) bodily sample
a: a sample of the person’s blood, breath, hair, or urine; or
b: any other sample of a similar kind from the person commencement date section 2 community-based sentence section 44 community work centre section 30 controlled drug section 2(1) counsel court Crown organisation section 4 curfew address curfew period detention conditions section 80C section 80D detention end date determinate sentence of imprisonment District Court the Youth Court drug or alcohol condition
a: that is imposed under section 52(2)(bb) 54I(3)(ba) 80D(4)(ca) 80N(1) and (2)(b) 93(1) or (2)(b)
b: that prohibits an offender from doing 1 or more of the following:
i: using (as defined in this section) a controlled drug:
ii: using a psychoactive substance:
iii: consuming alcohol drug or alcohol monitoring device
a: a controlled drug used by the person:
b: a psychoactive substance used by the person:
c: alcohol consumed by the person epidemic management notice section 8(1) forfeiture order section 5(1) health assessor
a: is, or is deemed to be, registered with the Medical Council of New Zealand continued by section 114(1)(a)
b: is, or is deemed to be, registered with the Psychologists Board continued by section 114(1)(a) home detention residence hospital Mental Health (Compulsory Assessment and Treatment) Act 1992 immediate family
a: means a member of the victim's family, whanau, or other culturally recognised family group, who is in a close relationship with the victim at the time of the offence; and
b: to avoid doubt, includes a person who is—
i: the victim's spouse, civil union partner, or de facto partner; or
ii: the victim's child or stepchild; or
iii: the victim's brother or sister or step-brother or step-sister; or
iv: a parent or step-parent of the victim; or
v: a grandparent of the victim incapable
a: means that the person—
i: lacks, wholly or partly, the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare; or
ii: has the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare, but wholly lacks the capacity to communicate decisions in respect of matters of that kind; and
b: includes the person being indeterminate sentence of imprisonment instrument forfeiture order section 142N instrument of crime
a: means property used (wholly or in part) to commit, or to facilitate the commission of, a qualifying instrument forfeiture offence; and
b: in relation to a qualifying instrument forfeiture offence that is an offence against section 8(1), (1A), (2A), or (2B) section 4(1)
c: in relation to any property referred to in paragraphs (a) and (b), the proceeds of any disposition of that property or any other property into which that property is converted, after the commission of the qualifying instrument forfeiture offence, except to the extent provided otherwise by any order of a court under this Act or the Criminal Proceeds (Recovery) Act 2009 medical laboratory technologist section 114(1)(a) medical officer
a: a person acting in a hospital who, in the normal course of the person's duties, takes blood specimens; or
b: a nurse; or
c: a medical laboratory technologist medical practitioner section 114(1)(a) minimum period of imprisonment section 86 89 103 subpart 2 non-release day Te Rā Aro ki a Matariki/Matariki Observance Day, nurse section 114(1)(a) offender post-detention conditions section 80N post-imprisonment condition section 93(1) or (2)(b) prison Corrections Act 2004 prison officer section 3(1) probation area probation officer section 24 psychoactive substance section 9 qualifying instrument forfeiture offence
a: means an offence punishable by a maximum term of imprisonment of 5 years or more; and
b: includes an attempt to commit, conspiring to commit, or being an accessory to an offence if the maximum term of imprisonment for that attempt, conspiracy, or activity is 5 years or more sentence of imprisonment
a: includes a determinate sentence of imprisonment and an indeterminate sentence of imprisonment; but
b: does not include a term of imprisonment imposed, whether by committal, sentence, or order, for—
i: non-payment of a sum of money; or
ii: disobedience of a court order; or
iii: contempt of court sentence term short-term sentence section 4(1) staff member of a prison section 3(1) tainted property section 5(1) testing trial Judge the District Court, means a Judge who holds a warrant under section 14 using section 8(2)(c) or (d) victim
a: means—
i: a person against whom an offence is committed by another person; and
ii: a person who, through, or by means of, an offence committed by another person, suffers physical injury, or loss of, or damage to, property; and
iii: a parent or legal guardian of a child, or of a young person, who falls within subparagraph (i) or subparagraph (ii), unless that parent or guardian is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned; and
iv: a member of the immediate family of a person who, as a result of an offence committed by another person, dies or is incapable, unless that member is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned; and
b: despite paragraph (a), if an offence is committed by a person, does not include another person charged (whether as a principal or party or accessory after the fact or otherwise) with the commission of, or convicted or found guilty of, or who pleads guilty to,—
i: that offence; or
ii: an offence relating to the same incident or series of incidents as that offence.
2: For the purposes of this Act,—
a: an offender is subject to a sentence of imprisonment until the sentence expires (in accordance with sections 82 83
ab: an offender is subject to a sentence of home detention from the date the sentence commences in accordance with section 80W 80X 80Y section 80Z section 80ZG(2)
b: except as provided in paragraph (c), an offender is subject to a sentence of community work from the date that the sentence commences in accordance with section 75 75A 76
ba: except as provided in paragraph (c), an offender is subject to a sentence of community detention from the date that the sentence commences in accordance with section 75 75B 76
c: an offender is not subject to a community-based sentence during any period that the community-based sentence is suspended under section 78(2)(a)
3: For the purposes of this Act, otherwise dealing with an offender other means of dealing with an offender
a: means dealing with the offender in relation to an offence following a finding of guilt or a plea of guilty, instead of imposing a sentence; and
b: to avoid doubt, does not include dealing with a person for non-payment of a sum of money, disobedience of a court order, or contempt of court.
4: For the purposes of this Act, the offender, in the case of a Crown organisation that is charged with, or convicted of, an offence against the Building Act 2004 , the Health and Safety at Work Act 2015 the Resource Management Act 1991 Part 3 Children’s Section 4(1) biometric information inserted 22 August 2017 section 57 Enhancing Identity Verification and Border Processes Legislation Act 2017 Section 4(1) bodily sample inserted 15 May 2017 section 4 Sentencing (Drug and Alcohol Testing) Amendment Act 2016 Section 4(1) community work centre amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011 Section 4(1) controlled drug inserted 15 May 2017 section 4 Sentencing (Drug and Alcohol Testing) Amendment Act 2016 Section 4(1) Crown organisation inserted 18 October 2002 section 28(1) Crown Organisations (Criminal Liability) Act 2002 Section 4(1) curfew address inserted 1 October 2007 section 4(3) Sentencing Amendment Act 2007 Section 4(1) curfew period inserted 1 October 2007 section 4(3) Sentencing Amendment Act 2007 Section 4(1) detention conditions inserted 1 October 2007 section 4(3) Sentencing Amendment Act 2007 Section 4(1) detention end date inserted 1 October 2007 section 4(3) Sentencing Amendment Act 2007 Section 4(1) District Court amended 1 March 2017 section 261 District Court Act 2016 Section 4(1) drug or alcohol condition inserted 15 May 2017 section 4 Sentencing (Drug and Alcohol Testing) Amendment Act 2016 Section 4(1) drug or alcohol monitoring device inserted 15 May 2017 section 4 Sentencing (Drug and Alcohol Testing) Amendment Act 2016 Section 4(1) epidemic management notice inserted 19 December 2006 section 4 Sentencing Amendment Act (No 2) 2006 Section 4(1) forfeiture order inserted 1 December 2009 section 6 Sentencing Amendment Act 2009 Section 4(1) health assessor replaced 18 September 2004 section 175(1) Health Practitioners Competence Assurance Act 2003 Section 4(1) home detention repealed 1 October 2007 section 4(1) Sentencing Amendment Act 2007 Section 4(1) home detention residence inserted 1 October 2007 section 4(3) Sentencing Amendment Act 2007 Section 4(1) immediate family replaced 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 4(1) incapable amended 17 December 2002 section 53 Victims' Rights Act 2002 Section 4(1) instrument forfeiture order inserted 1 December 2009 section 6 Sentencing Amendment Act 2009 Section 4(1) instrument of crime inserted 1 December 2009 section 6 Sentencing Amendment Act 2009 Section 4(1) instrument of crime replaced 5 October 2021 section 57 Counter-Terrorism Legislation Act 2021 Section 4(1) instrument of crime inserted 7 July 2010 section 4 Sentencing Amendment Act (No 2) 2010 Section 4(1) medical laboratory technologist inserted 15 May 2017 section 4 Sentencing (Drug and Alcohol Testing) Amendment Act 2016 Section 4(1) medical officer inserted 15 May 2017 section 4 Sentencing (Drug and Alcohol Testing) Amendment Act 2016 Section 4(1) medical practitioner inserted 15 May 2017 section 4 Sentencing (Drug and Alcohol Testing) Amendment Act 2016 Section 4(1) minimum period of imprisonment amended 16 August 2022 section 4 Three Strikes Legislation Repeal Act 2022 Section 4(1) non-release day inserted 1 October 2007 section 4(3) Sentencing Amendment Act 2007 Section 4(1) non-release day amended 12 April 2022 wehenga 7 Te Ture mō te Hararei Tūmatanui o te Kāhui o Matariki 2022 section 7 Te Kāhui o Matariki Public Holiday Act 2022 Section 4(1) nurse inserted 15 May 2017 section 4 Sentencing (Drug and Alcohol Testing) Amendment Act 2016 Section 4(1) penal institution repealed 1 June 2005 section 206 Corrections Act 2004 Section 4(1) post-detention conditions inserted 1 October 2007 section 4(3) Sentencing Amendment Act 2007 Section 4(1) post-imprisonment condition inserted 15 May 2017 section 4 Sentencing (Drug and Alcohol Testing) Amendment Act 2016 Section 4(1) prison inserted 1 June 2005 section 206 Corrections Act 2004 Section 4(1) prison officer inserted 18 September 2012 section 4 Sentencing (Aggravating Factors) Amendment Act 2012 Section 4(1) probation area replaced 1 October 2007 section 4(2) Sentencing Amendment Act 2007 Section 4(1) probation officer amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011 Section 4(1) psychoactive substance inserted 15 May 2017 section 4 Sentencing (Drug and Alcohol Testing) Amendment Act 2016 Section 4(1) qualifying instrument forfeiture offence inserted 1 December 2009 section 6 Sentencing Amendment Act 2009 Section 4(1) sentence term inserted 1 October 2007 section 4(3) Sentencing Amendment Act 2007 Section 4(1) sentencing guidelines repealed 3 June 2017 section 4(2) Statutes Repeal Act 2017 Section 4(1) short-term sentence inserted 1 October 2007 section 4(3) Sentencing Amendment Act 2007 Section 4(1) staff member of a penal institution repealed 1 June 2005 section 206 Corrections Act 2004 Section 4(1) staff member of a prison inserted 1 June 2005 section 206 Corrections Act 2004 Section 4(1) tainted property inserted 1 December 2009 section 6 Sentencing Amendment Act 2009 Section 4(1) testing inserted 15 May 2017 section 4 Sentencing (Drug and Alcohol Testing) Amendment Act 2016 Section 4(1) trial Judge replaced 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011 Section 4(1) trial Judge amended 1 March 2017 section 261 District Court Act 2016 Section 4(1) using inserted 15 May 2017 section 4 Sentencing (Drug and Alcohol Testing) Amendment Act 2016 Section 4(1) victim replaced 17 December 2002 section 53 Victims' Rights Act 2002 Section 4(2)(ab) inserted 1 October 2007 section 4(4) Sentencing Amendment Act 2007 Section 4(2)(b) amended 1 October 2007 section 4(5) Sentencing Amendment Act 2007 Section 4(2)(ba) inserted 1 October 2007 section 4(6) Sentencing Amendment Act 2007 Section 4(4) inserted 18 October 2002 section 28(2) Crown Organisations (Criminal Liability) Act 2002 Section 4(4) amended 23 December 2023 section 6 Resource Management (Natural and Built Environment and Spatial Planning Repeal and Interim Fast-track Consenting) Act 2023 Section 4(4) amended 21 December 2018 section 10(1) Children's Amendment Act 2018 Section 4(4) amended 4 April 2016 section 232 Health and Safety at Work Act 2015 Section 4(4) amended 1 July 2015 section 43(2) Vulnerable Children Act 2014 Section 4(4) amended 31 March 2005 section 414 Building Act 2004
4A: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1AA Section 4A inserted 22 December 2016 section 4 Sentencing (Electronic Monitoring of Offenders) Amendment Act 2016
5: Application of this Act
1: Except as provided in subsection (2), this Act binds the Crown.
2: This Act does not apply to proceedings under the Armed Forces Discipline Act 1971
3: Subject to section 6 sections 148 to 160 1985 No 120 s 3
6: Penal enactments not to have retrospective effect to disadvantage of offender
1: An offender has the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty.
2: Subsection (1) applies despite any other enactment or rule of law. 1985 No 120 s 4 Purposes and principles of sentencing
7: Purposes of sentencing or otherwise dealing with offenders
1: The purposes for which a court may sentence or otherwise deal with an offender are—
a: to hold the offender accountable for harm done to the victim and the community by the offending; or
b: to promote in the offender a sense of responsibility for, and an acknowledgment of, that harm; or
c: to provide for the interests of the victim of the offence; or
d: to provide reparation for harm done by the offending; or
e: to denounce the conduct in which the offender was involved; or
f: to deter the offender or other persons from committing the same or a similar offence; or
g: to protect the community from the offender; or
h: to assist in the offender's rehabilitation and reintegration; or
i: a combination of 2 or more of the purposes in paragraphs (a) to (h).
2: To avoid doubt, nothing about the order in which the purposes appear in this section implies that any purpose referred to must be given greater weight than any other purpose referred to.
8: Principles of sentencing or otherwise dealing with offenders
In sentencing or otherwise dealing with an offender the court—
a: must take into account the gravity of the offending in the particular case, including the degree of culpability of the offender; and
b: 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 for the offences; and
c: 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; and
d: 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; and
e: 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; and
f: must take into account any information provided to the court concerning the effect of the offending on the victim; and
g: must impose the least restrictive outcome that is appropriate in the circumstances , in accordance with the hierarchy of sentences and orders set out in section 10A
h: 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; and
i: 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; and
j: 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 (including, without limitation, anything referred to in section 10 Section 8(g) amended 1 October 2007 section 6(2) Sentencing Amendment Act 2007
9: Aggravating and mitigating factors
1: 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:
a: that the offence involved actual or threatened violence or the actual or threatened use of a weapon:
b: that the offence involved unlawful entry into, or unlawful presence in, a dwelling place:
c: that the offence was committed while the offender was on bail or still subject to a sentence:
ca: that the offence was a family violence offence (as defined in section 123A
i: while the offender was subject to a protection order (as defined in section 8 section 123B
ii: against a person who, in relation to the protection order, was a protected person (as so defined):
d: the extent of any loss, damage, or harm resulting from the offence:
e: particular cruelty in the commission of the offence:
f: that the offender was abusing a position of trust or authority in relation to the victim:
fa: that the victim was a constable, or a prison officer, acting in the course of his or her duty:
fb: 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:
g: that the victim was particularly vulnerable because of his or her age or health or because of any other factor known to the offender:
h: 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
i: the hostility is because of the common characteristic; and
ii: the offender believed that the victim has that characteristic:
ha: that the offence was committed as part of, or involves, a terrorist act (as defined in section 5(1)
hb: that the offender was, at the time of the offending,—
i: a participant in an organised criminal group (within the meaning of section 98A
ii: involved in any other form of organised criminal association:
i: premeditation on the part of the offender and, if so, the level of premeditation involved:
j: 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:
k: 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:
i: caused a delay in the disposition of the proceedings:
ii: had an adverse effect on a victim or witness.
2: 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:
a: the age of the offender:
b: whether and when the offender pleaded guilty:
c: the conduct of the victim:
d: that there was a limited involvement in the offence on the offender's part:
e: that the offender has, or had at the time the offence was committed, diminished intellectual capacity or understanding:
f: any remorse shown by the offender, or anything as described in section 10
fa: 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:
fb: 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:
g: any evidence of the offender's previous good character:
h: that the offender spent time on bail with an EM condition as defined in section 3
3: Despite subsection (2)(e), the court must not take into account by way of mitigation the fact that the offender was, at the time of committing the offence, affected by the voluntary consumption or use of alcohol or any drug or other substance (other than a drug or other substance used for bona fide medical purposes).
3A: In taking into account that the offender spent time on bail with an EM condition under subsection (2)(h), the court must consider—
a: the period of time that the offender spent on bail with an EM condition; and
b: the relative restrictiveness of the EM condition, particularly the frequency and duration of the offender's authorised absences from the electronic monitoring address; and
c: the offender's compliance with the bail conditions during the period of bail with an EM condition; and
d: any other relevant matter.
4: Nothing in subsection (1) or subsection (2)—
a: prevents the court from taking into account any other aggravating or mitigating factor that the court thinks fit; or
b: 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.
4A: In subsection (1)(fb), emergency health or fire services provider
a: ambulance services, first aid, or medical or paramedical care:
b: services provided by or on behalf of Fire and Emergency New Zealand to save life, prevent serious injury, or avoid damage to property.
5: In this section, procedural requirement
a: the Criminal Procedure Act 2011
b: any rules of court or regulations made under that Act; or
c: the Criminal Disclosure Act 2008 1985 No 120 s 12A Section 9(1)(ca) inserted 1 July 2019 section 62 Family Violence (Amendments) Act 2018 Section 9(1)(fa) inserted 18 September 2012 section 5(1) Sentencing (Aggravating Factors) Amendment Act 2012 Section 9(1)(fb) inserted 18 September 2012 section 5(1) Sentencing (Aggravating Factors) Amendment Act 2012 Section 9(1)(ha) inserted 31 October 2003 section 3 Sentencing Amendment Act 2003 Section 9(1)(hb) replaced 21 November 2024 section 4 Sentencing Amendment Act 2024 Section 9(1)(k) inserted 1 July 2013 section 4(1) Sentencing Amendment Act (No 2) 2011 Section 9(2)(fa) inserted 1 July 2013 section 4(2) Sentencing Amendment Act (No 2) 2011 Section 9(2)(fb) inserted 1 July 2013 section 4(2) Sentencing Amendment Act (No 2) 2011 Section 9(2)(g) amended 4 September 2013 section 42(2) Bail Amendment Act 2013 Section 9(2)(h) inserted 4 September 2013 section 42(3) Bail Amendment Act 2013 Section 9(3A) inserted 4 September 2013 section 42(4) Bail Amendment Act 2013 Section 9(4A) inserted 18 September 2012 section 5(2) Sentencing (Aggravating Factors) Amendment Act 2012 Section 9(4A)(b) replaced 1 July 2017 section 197 Fire and Emergency New Zealand Act 2017 Section 9(5) inserted 1 July 2013 section 4(3) Sentencing Amendment Act (No 2) 2011 Additional aggravating factors in cases involving violence against, or neglect of, child under 14 years Heading inserted 17 December 2008 section 4 Sentencing (Offences Against Children) Amendment Act 2008
9A: Cases involving violence against, or neglect of, child under 14 years
1: This section applies if the court is sentencing or otherwise dealing with an offender in a case involving violence against, or neglect of, a child under the age of 14 years.
2: The court must take into account the following aggravating factors to the extent that they are applicable in the case:
a: the defencelessness of the victim:
b: in relation to any harm resulting from the offence, any serious or long-term physical or psychological effect on the victim:
c: the magnitude of the breach of any relationship of trust between the victim and the offender:
d: threats by the offender to prevent the victim reporting the offending:
e: deliberate concealment of the offending from authorities.
3: The factors in subsection (2) are in addition to any factors the court might take into account under section 9
4: Nothing in this section implies that a factor referred to in subsection (2) must be given greater weight than any other factor that the court might take into account. Section 9A inserted 17 December 2008 section 4 Sentencing (Offences Against Children) Amendment Act 2008 Taking into account offer or agreement to make amends
10: Court must take into account offer, agreement, response, or measure to make amends
1: In sentencing or otherwise dealing with an offender the court must take into account—
a: any offer of amends, whether financial or by means of the performance of any work or service, made by or on behalf of the offender to the victim:
b: any agreement between the offender and the victim as to how the offender may remedy the wrong, loss, or damage caused by the offender or ensure that the offending will not continue or recur:
c: the response of the offender or the offender's family, whanau, or family group to the offending:
d: any measures taken or proposed to be taken by the offender or the family, whanau, or family group of the offender to—
i: make compensation to any victim of the offending or family, whanau, or family group of the victim; or
ii: apologise to any victim of the offending or family, whanau, or family group of the victim; or
iii: otherwise make good the harm that has occurred:
e: any remedial action taken or proposed to be taken by the offender in relation to the circumstances of the offending.
2: In deciding whether and to what extent any matter referred to in subsection (1) should be taken into account, the court must take into account—
a: whether or not it was genuine and capable of fulfilment; and
b: whether or not it has been accepted by the victim as expiating or mitigating the wrong.
3: If a court determines that, despite an offer, agreement, response, measure, or action referred to in subsection (1), it is appropriate to impose a sentence, it must take that offer, agreement, response, measure, or action into account when determining the appropriate sentence for the offender.
4: Without limiting any other powers of a court to adjourn, in any case contemplated by this section a court may adjourn the proceedings until—
a: compensation has been paid; or
b: the performance of any work or service has been completed; or
c: any agreement between the victim and the offender has been fulfilled; or
d: any measure proposed under subsection (1)(d) has been completed; or
e: any remedial action referred to in subsection (1)(e) has been completed. 1985 No 120 s 12 Hierarchy of sentences and orders Heading inserted 1 October 2007 section 7 Sentencing Amendment Act 2007
10A: Hierarchy of sentences and orders
1: The hierarchy of sentences and orders set out in subsection (2) reflects the relative level of supervision and monitoring of, and restrictions imposed on, an offender under each sentence or order.
2: The hierarchy of sentences and orders, from the least restrictive to the most restrictive, is as follows:
a: discharge or order to come up for sentence if called on:
b: sentences of a fine and reparation:
c: community-based sentences of community work and supervision:
d: community-based sentences of intensive supervision and community detention:
e: sentence of home detention:
f: sentence of imprisonment. Section 10A inserted 1 October 2007 section 7 Sentencing Amendment Act 2007 Taking account of instrument forfeiture order or successful application for relief Heading inserted 1 December 2009 section 7 Sentencing Amendment Act 2009
10B: Court must take into account instrument forfeiture order or successful application for relief
1: In sentencing or otherwise dealing with an offender convicted of a qualifying instrument forfeiture offence, the court must take into account—
a: any instrument forfeiture order made, or to be made, in respect of property used to commit, or to facilitate the commission of, the qualifying instrument forfeiture offence:
b: any forfeiture of that property by any other order or means arising from the offender’s conviction:
c: any order for relief made under section 142L 142M
d: the nature of the relationship between that person and the offender:
e: the likely benefit to the offender of any order referred to in paragraph (c).
2: In deciding the weight to be given to any matter referred to in subsection (1)(a), (b), or (d), the court must take into account—
a: the value of the property that is the subject of the instrument forfeiture order or that is otherwise forfeited:
b: the nature and extent of the offender’s interest in that property.
3: Without limiting any other powers of a court to adjourn, in any case contemplated by this section a court may adjourn the proceedings until—
a: any property that is the subject of a forfeiture order has been surrendered to the Official Assignee; or
b: any appeal or application for relief in relation to an instrument forfeiture order or any other proceeding under the Criminal Proceeds (Recovery) Act 2009 Section 10B inserted 1 December 2009 section 7 Sentencing Amendment Act 2009 General provisions about discharge without conviction, etc, and imposition of reparation, fines, community-based sentences, sentences of home detention, Heading amended 1 October 2007 section 8 Sentencing Amendment Act 2007
11: Discharge or order to come up for sentence if called on
1: If a person who is charged with an offence is found guilty, or pleads guilty, before entering a conviction and imposing a sentence the court must consider whether the offender would be more appropriately dealt with by—
a: discharging the offender without conviction under section 106
b: convicting and discharging the offender under section 108
c: convicting the offender and ordering the offender, under section 110
2: If any provision applicable to the particular offence in this or any other enactment provides a presumption in favour of imposing, on conviction, a sentence of imprisonment, a sentence of home detention,
a: despite subsection (1), a court is not obliged to consider whether the offender would be more appropriately dealt with in the manner described in any of paragraphs (a), (b), or (c) of that subsection; but
b: the court is not precluded from dealing with the offender in that manner if the court thinks that it is appropriate in the circumstances. Section 11(2) amended 1 October 2007 section 9 Sentencing Amendment Act 2007
12: Reparation
1: If a court is lawfully entitled under Part 2 or order or order
1A: When considering undue hardship or other special circumstances under subsection (1), a court must not take into account that the offender is required to pay a levy under section 105B
2: A sentence of reparation may be imposed, in relation to any particular offence, on its own or in addition to any other sentence.
3: If a court does not impose a sentence or order
4: In this section, order of reparation section 106(3)(b) 108(2)(b) 110(3)(b 1985 No 120 s 11 Section 12(1) amended 13 February 2012 section 4(1) Sentencing Amendment Act 2011 Section 12(1A) inserted 1 July 2010 section 4 Sentencing (Offender Levy) Amendment Act 2009 Section 12(3) amended 13 February 2012 section 4(2) Sentencing Amendment Act 2011 Section 12(4) inserted 13 February 2012 section 4(3) Sentencing Amendment Act 2011
13: Sentence of fine
If a court is lawfully entitled under this or any other enactment to impose a fine in addition to, or instead of, any other sentence, the court must regard a fine as the appropriate sentence for the particular offence unless—
a: the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by imposing a fine; or
b: the court is satisfied that the application of any of the principles in section 8
c: any provision applicable to the particular offence in this or any other enactment provides a presumption in favour of imposing any other sentence or requires the court to impose any other sentence; or
d: the court is satisfied that a fine, on its own or in addition to a sentence of reparation, would otherwise be clearly inadequate in the circumstances.
14: Reparation, fines, and financial capacity of offender
1: Even if it would be appropriate in accordance with section 13
2: If a court considers that it would otherwise be appropriate to impose a sentence of reparation and a sentence of a fine, but it appears to the court that the offender has or will have the means to pay a fine or make reparation, but not both, the court must sentence the offender to make reparation.
15: Community-based sentence
1: If a court is lawfully entitled under this or any other enactment to impose a community-based sentence or a fine, or both, it may impose a community-based sentence only if—
a: the court, in accordance with section 13
b: the court is not going to impose a fine because of either of the circumstances referred to in section 14
2: This section is subject to any provision in this or any other enactment that—
a: provides a presumption in favour of or against imposing a particular sentence in relation to a particular offence; or
b: requires a court to impose a particular sentence in relation to a particular offence.
15A: Sentence of home detention
1: If a court is lawfully entitled under this or any other enactment to impose a sentence of home detention, it may impose a sentence of home detention only if—
a: the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and
b: the court would otherwise sentence the offender to a short-term sentence of imprisonment.
2: This section is subject to any provision in this or any other enactment that—
a: provides a presumption in favour of or against imposing a sentence of home detention in relation to a particular offence; or
b: requires a court to impose a sentence of imprisonment in relation to a particular offence. Section 15A inserted 1 October 2007 section 10 Sentencing Amendment Act 2007
15B: Limitation on sentence of home detention for person under
18
1: No court may impose a sentence of home detention on an offender in respect of a particular offence, other than a category 4 offence, or a category 3 offence for which the maximum penalty available is or includes imprisonment for life or for at least 14 years, 18
2: Section 15B inserted 1 October 2007 section 10 Sentencing Amendment Act 2007 Section 15B heading amended 1 July 2019 section 54(1) Oranga Tamariki Legislation Act 2019 Section 15B(1) amended 1 July 2019 section 54(2) Oranga Tamariki Legislation Act 2019 Section 15B(1) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011 Section 15B(2) repealed 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011
16: Sentence of imprisonment
1: When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.
2: The court must not impose a sentence of imprisonment unless it is satisfied that,—
a: a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g)
b: those purposes cannot be achieved by a sentence other than imprisonment; and
c: no other sentence would be consistent with the application of the principles in section 8
3: This section is subject to any provision in this or any other enactment that—
a: provides a presumption in favour of or against imposing a sentence of imprisonment in relation to a particular offence; or
b: requires a court to impose a sentence of imprisonment in relation to a particular offence. 1985 No 120 s 7(1)
17: Imprisonment may be imposed if offender unlikely to comply with other sentences
Nothing in this Part limits the discretion of a court to impose a sentence of imprisonment on an offender if the court is satisfied on reasonable grounds that the offender is unlikely to comply with any other sentence that it could lawfully impose and that would otherwise be appropriate. 1985 No 120 s 9
18: Limitation on imprisonment of person under
18
1: No court may impose a sentence of imprisonment on an offender in respect of a particular offence, other than a category 4 offence, or a category 3 offence for which the maximum penalty available is or includes imprisonment for life or for at least 14 years, 18
2: 1985 No 120 s 8 Section 18 heading amended 1 July 2019 section 55(1) Oranga Tamariki Legislation Act 2019 Section 18(1) amended 1 July 2019 section 55(2) Oranga Tamariki Legislation Act 2019 Section 18(1) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011 Section 18(2) repealed 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011 Permitted combinations of sentences
19: Permitted combinations of sentences
1: No court may impose a combination of sentences of different types on an offender in respect of 1 or more offences except as provided in this section.
2: A sentence of reparation may be imposed with any sentence.
3: A sentence of a fine may be imposed with any sentence, but may only be imposed with a sentence of imprisonment in respect of a particular offence if authorised by the enactment specifying the offence.
4: A sentence of supervision may be combined with any sentence except intensive supervision, home detention, or imprisonment.
5: A sentence of community work, subject to section 20(2)
6: A sentence of community detention may be combined with any sentence except home detention or imprisonment.
7: A sentence of intensive supervision may be combined with any sentence except supervision, home detention, or imprisonment.
8: A sentence of home detention may be combined with a sentence of reparation, a fine, or community work.
9: A sentence of imprisonment may be combined with a sentence of reparation or, subject to subsection (3), a fine. Section 19 replaced 1 October 2007 section 11 Sentencing Amendment Act 2007
20: Guidance on use of combinations of sentences
1: A court may impose a particular combination of sentences on an offender only if satisfied that any of the sentences making up the combination, if imposed alone or in any less restrictive combination, would not be in accordance with—
a: the purpose or purposes for which sentence is imposed; or
b: the application of the principles in section 8
2: A court may only combine a sentence of community work with a sentence of supervision or intensive supervision if satisfied that—
a: a sentence of community work is appropriate; but
b: the offender requires the imposition of standard conditions or any of the special conditions available under a sentence of supervision or intensive supervision to address the causes of his or her offending. Section 20 replaced 1 October 2007 section 11 Sentencing Amendment Act 2007
20A: Subsequent community-based sentence or sentence of home detention
1: This section applies to an offender who, while serving a community-based sentence or sentence of home detention (the first sentence second sentence
2: The court must, when imposing the second sentence,—
a: impose a sentence that would be permitted in combination with the first sentence under section 19
b: defer the commencement of the second sentence until the first sentence has been served; or
c: cancel the first sentence; or
d: cancel the first sentence and substitute any other sentence that could have been imposed on the offender at the time when the offender was convicted of the offence for which the sentence was imposed so that the sentences are a permitted combination of sentences under section 19.
3: When cancelling the first sentence under subsection (2)(c) or (d), the court must, when imposing the second sentence or substituting the first sentence with another sentence, as the case may be, take into account the portion of the first sentence that remains unserved.
4: A court—
a: must not cancel a first sentence under subsection (2)(c) or (d) if that sentence has been imposed by a higher court; and
b: if it considers the first sentence should be cancelled, must refer the matter to the court that imposed the first sentence.
5: For the purposes of this section, an offender is to be treated as serving a sentence of home detention until the offender is no longer subject to any post-detention conditions imposed under section 80N
6: Sections 54 54K 68 69I 80F
7: If the second sentence is a sentence of home detention or community detention and the court defers, under subsection (2)(b), the commencement of that sentence for more than 2 months, a probation officer must—
a: review the suitability of the home detention residence or curfew address; and
b: ensure every relevant occupant consents, in accordance with section 26A(3)
c: if necessary, apply to the court for a variation or cancellation of the sentence under section 69I 80F section 69JA 80FA
8: In this section, relevant occupant section 26A(4)(a) Section 20A inserted 22 January 2014 section 13 Administration of Community Sentences and Orders Act 2013
21: Effect of provisions concerning multiple sentences on powers of court
Nothing in sections 19 20 20A
a: empowers a court to impose any sentence that it would not otherwise be empowered to impose; or
b: limits the power of a court to make any order that it is empowered to make on the conviction of any person, whether under this or any other enactment. 1985 No 120 s 13(8), (9) Section 21 amended 22 January 2014 section 14 Administration of Community Sentences and Orders Act 2013 Provisions of general application restricting cumulative sentences
22: No sentence may be cumulative on non-association order
No sentence of any kind may be imposed cumulatively on a non-association order. 1985 No 120 s 28B(2)
23: No sentence may be cumulative on indeterminate sentence of imprisonment
No sentence of any kind may be imposed cumulatively on an indeterminate sentence of imprisonment. Proof of facts
24: Proof of facts
1: In determining a sentence or other disposition of the case, a court—
a: may accept as proved any fact that was disclosed by evidence at the
b: must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.
2: If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—
a: the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:
b: if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the
c: the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt
d: the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender's part in the offence:
e: either party may cross-examine any witness called by the other party.
3: For the purposes of this section,— aggravating fact
a: the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and
b: the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case mitigating fact
a: the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and
b: the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case. Section 24(1)(a) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011 Section 24(2)(b) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011 Section 24(2)(c) amended 7 July 2004 section 3 Sentencing Amendment Act 2004 Sentencing procedure
24A: Adjournment for restorative justice process in certain cases
1: This section applies if—
a: an offender appears before the District Court
b: the offender has pleaded guilty to the offence; and
c: there are 1 or more victims of the offence; and
d: no restorative justice process has previously occurred in relation to the offending; and
e: the Registrar has informed the court that an appropriate restorative justice process can be accessed.
2: The court must adjourn the proceedings to—
a: enable inquiries to be made by a suitable person to determine whether a restorative justice process is appropriate in the circumstances of the case, taking into account the wishes of the victims; and
b: enable a restorative justice process to occur if the inquiries made under paragraph (a) reveal that a restorative justice process is appropriate in the circumstances of the case. Section 24A inserted 6 December 2014 section 4 Sentencing Amendment Act 2014 Section 24A(1)(a) amended 1 March 2017 section 261 District Court Act 2016
25: Power of adjournment for inquiries as to suitable punishment
1: A court may adjourn the proceedings in respect of any offence after the offender has been found guilty or has pleaded guilty and before the offender has been sentenced or otherwise dealt with for any 1 or more of the following purposes:
a: to enable inquiries to be made or to determine the most suitable method of dealing with the case:
b: to enable a restorative justice process to occur, or to be completed
c: to enable a restorative justice agreement to be fulfilled:
d: to enable a rehabilitation programme or course of action to be undertaken:
da: to determine whether to impose an instrument forfeiture order and, if so, the terms of that order:
e: to enable the court to take account of the offender's response to any process, agreement, programme, or course of action referred to in paragraph (b), (c), or (d).
2: If proceedings are adjourned under this section or under section 10(4) 24A 1985 No 120 s 14(1), (5) Section 25(1)(b) amended 6 December 2014 section 5(1) Sentencing Amendment Act 2014 Section 25(1)(da) inserted 1 December 2009 section 8 Sentencing Amendment Act 2009 Section 25(2) amended 6 December 2014 section 5(2) Sentencing Amendment Act 2014
26: Pre-sentence reports
1: Except as provided in section 26A
2: A pre-sentence report may include—
a: information regarding the personal, family, whanau, community, and cultural background, and social circumstances of the offender:
b: information regarding the factors contributing to the offence, and the rehabilitative needs of the offender:
c: information regarding any offer, agreement, response, or measure of a kind referred to in section 10(1)
d: recommendations on the appropriate sentence or other disposition of the case, taking into account the risk of further offending by the offender:
e: in the case of a proposed sentence of supervision, intensive supervision, or home detention, recommendations on the appropriate conditions of that sentence:
f: in the case of a proposed sentence of supervision , intensive supervision, or home detention
i: a report on the programme or programmes, including a general description of the conditions that the offender will have to abide by; and
ii: confirmation that the report has been made available to the offender:
g: in the case of a proposed sentence of supervision , intensive supervision, or home detention
i: has been fully advised by a person who is qualified to prescribe that medication about the nature and likely or intended effect of the medication and any known risks; and
ii: consents to taking the prescription medication:
h: in the case of a proposed sentence of community work,—
i: information regarding the availability of community work of a kind referred to in section 63
ii: recommendations on whether the court should authorise, under section 66A
i: in the case of a proposed sentence of intensive supervision or possible release conditions for a proposed sentence of imprisonment for 24 months or less, the opinion of the chief executive of the Department of Corrections as to whether—
i: a condition that prohibits the offender from entering or remaining in specified places or areas at specified times or at all times (a whereabouts condition
ii: a whereabouts condition would facilitate or promote the objective of rehabilitating and reintegrating the offender; and
iii: a further condition requiring the offender to submit to electronic monitoring of his or her compliance with a whereabouts condition is warranted, having regard to the likelihood of non-compliance with the whereabouts condition.
3: The court must not direct the preparation of a report under subsection (1) on any aspects of the personal characteristics or personal history of an offender if a report covering those aspects is readily available to the court and there is no reason to believe that there has been any change of significance to the court since the report was prepared.
4: On directing the preparation of a report under subsection (1), the court may indicate to the probation officer the type of sentence or other mode of disposition that the court is considering, and may also give any other guidance to the probation officer that will assist the officer to prepare the report.
5: If a court has directed the preparation of a report under subsection (1), the probation officer charged with the preparation of the report may seek the further directions of the court on—
a: any particular item of information sought by the court; or
b: any alternative sentence or other mode of disposition that may be considered by the court if it appears that the sentence or other mode of disposition under consideration is inappropriate. 1985 No 120 s 15 Section 26(1) replaced 22 January 2014 section 15 Administration of Community Sentences and Orders Act 2013 Section 26(2)(e) replaced 1 October 2007 section 13(1) Sentencing Amendment Act 2007 Section 26(2)(f) amended 1 October 2007 section 13(2) Sentencing Amendment Act 2007 Section 26(2)(g) amended 1 October 2007 section 13(3) Sentencing Amendment Act 2007 Section 26(2)(h) replaced 1 October 2007 section 13(4) Sentencing Amendment Act 2007 Section 26(2)(i) inserted 22 December 2016 section 5 Sentencing (Electronic Monitoring of Offenders) Amendment Act 2016
26A: Pre-sentence reports
1: If the court is considering a sentence of community detention or home detention, the court must direct a probation officer to prepare a pre-sentence report for the court in accordance with subsection (2).
1A: If a probation officer intends to recommend to the court a sentence of community detention or home detention, the probation officer must prepare a pre-sentence report in accordance with subsection (2) and provide it to the court.
2: A pre-sentence report to which subsection (1) or (1A) applies section 26(2)
a: information regarding the suitability of the proposed curfew address or home detention residence, including the safety and welfare of the occupants of the proposed curfew address or home detention residence; and
b: in the case of a sentence of community detention, confirmation that the offender consents to the conditions of the sentence and the proposed curfew period; and
c: in the case of a sentence of home detention, confirmation that the offender consents to the standard detention conditions and any special conditions recommended by the probation officer or that the court has indicated it is considering imposing.
3: Before completing a report that covers the matters in subsection (2), the probation officer must—
a: ensure that every relevant occupant of the proposed curfew address or home detention residence, as the case may be, is aware of the nature of the offender's past and current offending; and
b: tell every relevant occupant that the reason for giving that information is to enable the occupant to make an informed decision about whether to consent to the offender remaining at the curfew address during the curfew period, or at the home detention residence while serving the sentence of home detention, as the case may be; and
c: tell every relevant occupant that the information provided about the offender must not be used for any purpose other than that described in paragraph (b); and
d: obtain the consent of every relevant occupant to the offender remaining at the curfew address during the curfew period, or at the home detention residence while serving the sentence of home detention, as the case may be; and
e: inform every relevant occupant that they may withdraw their consent, at any time, to the offender serving the sentence at the curfew address or in the home detention residence, as the case may be.
4: In subsection (3), relevant occupant
a: in relation to a residence that the probation officer is considering as a home detention residence,—
i: if the residence is a family residence, every person of or over the age of 16 who ordinarily lives there; and
ii: in the case of any other residence, every person whom the probation officer identifies as being a relevant occupant for the purposes of subsection (3); or
b: in relation to an address that the probation officer is considering as a curfew address,—
i: if the address is a residence, every person referred to in paragraph (a)(i) and (ii); and
ii: in the case of any other place, the person or persons whom the probation officer identifies as being authorised to give consent for the purposes of subsection (3).
5: Section 26(3), (4), and (5) Section 26A inserted 1 October 2007 section 14 Sentencing Amendment Act 2007 Section 26A heading amended 22 January 2014 section 16(1) Administration of Community Sentences and Orders Act 2013 Section 26A(1) replaced 22 January 2014 section 16(2) Administration of Community Sentences and Orders Act 2013 Section 26A(1A) inserted 22 January 2014 section 16(2) Administration of Community Sentences and Orders Act 2013 Section 26A(2) amended 22 January 2014 section 16(3) Administration of Community Sentences and Orders Act 2013 Section 26A(5) inserted 22 January 2014 section 16(4) Administration of Community Sentences and Orders Act 2013
27: Offender may request court to hear person on personal, family, whanau, community, and cultural background of offender
1: If an offender appears before a court for sentencing, the offender may request the court to hear any person or persons called by the offender to speak on—
a: the personal, family, whanau, community, and cultural background of the offender:
b: the way in which that background may have related to the commission of the offence:
c: any processes that have been tried to resolve, or that are available to resolve, issues relating to the offence, involving the offender and his or her family, whanau, or community and the victim or victims of the offence:
d: how support from the family, whanau, or community may be available to help prevent further offending by the offender:
e: how the offender's background, or family, whanau, or community support may be relevant in respect of possible sentences.
2: The court must hear a person or persons called by the offender under this section on any of the matters specified in subsection (1) unless the court is satisfied that there is some special reason that makes this unnecessary or inappropriate.
3: If the court declines to hear a person called by the offender under this section, the court must give reasons for doing so.
4: Without limiting any other powers of a court to adjourn, the court may adjourn the proceedings to enable arrangements to be made to hear a person or persons under this section.
5: If an offender does not make a request under this section, the court may suggest to the offender that it may be of assistance to the court to hear a person or persons called by the offender on any of the matters specified in subsection (1). 1985 No 120 s 16
28: Disclosure of reports
1: If a written report is submitted to a court, whether under section 26 section 33
a: except as provided in subsection (2), to the offender; and
b: if the offender is represented, to the offender's counsel, whether or not an order is made under subsection (2).
2: The court may order that any part of the report not be disclosed to the offender if it is of the opinion that the disclosure would be likely to prejudice the offender's physical or mental health or endanger the safety of any person.
3: The offender or his or her counsel may tender evidence on any matter referred to in any report, whether written or oral, that is submitted to a court under section 26 section 33
4: Failure to give a copy of any report in accordance with this section does not affect the validity of the proceedings in a court or of any order made or sentence imposed by a court. 1985 No 120 s 17
29: Access to reports
1: The following persons may have access to any report submitted to a court under section 26 section 33 section 142F
a: the manager prison
b: a Director of Area Mental Health Services, or a staff member of a hospital, who requires access to the report for the purposes of his or her official duties:
ba: a compulsory care co-ordinator, or a staff member of a facility under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
c: an officer or employee of the Department of Corrections or the Ministry of Justice prison
d: a member of the New Zealand Parole Board:
e: the prosecutor appearing on sentence or on appeal against sentence.
2: Despite anything in the Official Information Act 1982 Privacy Act 2020 section 28 section 34 1985 No 120 s 18 Section 29(1) amended 1 December 2009 section 9 Sentencing Amendment Act 2009 Section 29(1)(a) amended 1 June 2005 section 206 Corrections Act 2004 Section 29(1)(b) replaced 1 September 2004 section 51 Criminal Procedure (Mentally Impaired Persons) Act 2003 Section 29(1)(ba) inserted 1 September 2004 section 51 Criminal Procedure (Mentally Impaired Persons) Act 2003 Section 29(1)(c) amended 1 June 2005 section 206 Corrections Act 2004 Section 29(1)(c) amended 1 October 2003 section 14(1) State Sector Amendment Act 2003 Section 29(2) amended 1 December 2020 section 217 Privacy Act 2020
30: No sentence of imprisonment to be imposed without opportunity for legal representation
1: No court may impose a sentence of imprisonment on an offender who has not been legally represented at the stage of the proceedings at which the offender was at risk of conviction, except as provided in subsection (2).
2: Subsection (1) does not apply if the court is satisfied that the offender—
a: was informed of his or her rights relating to legal representation, including, where appropriate, the right to apply for legal aid under the Legal Services Act 2011
b: fully understood those rights; and
c: had the opportunity to exercise those rights; and
d: refused or failed to exercise those rights, or engaged counsel but subsequently dismissed him or her.
3: If, on any appeal against sentence, a court finds that a sentence was imposed in contravention of subsection (1), the court must either—
a: quash the sentence imposed and impose in substitution for it any other lawful sentence that the court thinks ought to have been imposed; or
b: quash the conviction and direct a new
4: For the purposes of this section, an offender refuses or fails to exercise his or her rights relating to legal representation if the offender—
a: refuses or fails to apply for legal aid under the Legal Services Act 2011
b: refuses or fails to engage counsel by other means. 1985 No 120 s 10 Section 30(2)(a) amended 17 December 2016 section 95(1) Statutes Amendment Act 2016 Section 30(3)(b) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011 Section 30(4)(a) amended 17 December 2016 section 95(2) Statutes Amendment Act 2016
31: General requirement to give reasons
1: A court must give reasons in open court—
a: for the imposition of a sentence or for any other means of dealing with the offender; and
b: for the making of an order under Part 2
2: The reasons may be given under this section with whatever level of particularity is appropriate to the particular case.
3: Nothing in this section limits any other provision of this or any other enactment that requires a court to give reasons.
4: The fact that a court, in giving reasons in a particular case, does not mention a particular principle in section 8 section 9 section 10 section 11
2: Sentences, orders, and related matters
1: Monetary penalties
Reparation
32: Sentence of reparation
1: A court may impose a sentence of reparation if an offender has, through or by means of an offence of which the offender is convicted, caused a person to suffer—
a: loss of or damage to property; or
b: emotional harm; or
c: loss or damage consequential on any emotional or physical harm or loss of, or damage to, property.
2: Despite subsection (1), a court must not impose a sentence of reparation in respect of emotional harm, or loss or damage consequential on emotional harm, unless the person who suffered the emotional harm is a person described in paragraph (a) of the definition of victim in section 4
3: In determining whether a sentence of reparation is appropriate or the amount of reparation to be made for any consequential loss or damage described in subsection (1)(c), the court must take into account whether there is or may be, under the provisions of any enactment or rule of law, a right available to the person who suffered the loss or damage to bring proceedings or to make any application in relation to that loss or damage.
4: Subsection (3) applies whether or not the right to bring proceedings or make the application has been exercised in the particular case, and whether or not any time prescribed for the exercise of that right has expired.
5: Despite subsections (1) and (3), the court must not order the making of reparation in respect of any consequential loss or damage described in subsection (1)(c) for which compensation has been, or is to be, paid under the Accident Compensation Act 2001
6: When determining the amount of reparation to be made, the court must take into account any offer, agreement, response, measure, or action as described in section 10
7: The court must not impose as part of a sentence of reparation an obligation on the offender to perform any form of work or service for the person who suffered the harm, loss, or damage.
8: Nothing in section 320 Accident Compensation Act 2001 1985 No 120 s 22(1) Section 32(5) replaced 6 December 2014 section 6 Sentencing Amendment Act 2014 Section 32(8) amended 3 March 2010 section 5(1)(b) Accident Compensation Amendment Act 2010
33: Court may order reparation report
1: If the court considers that a sentence of reparation may be appropriate section 34
a: in the case of loss of or damage to property, the value of that loss or damage and any consequential loss or damage:
b: in the case of emotional harm, the nature of that harm and the value of
c: in the case of any loss or damage consequential on physical harm,—
i: the nature and value
ii: the amount or extent of compensation paid or payable under the Accident Compensation Act 2001
d: the financial capacity of the offender:
e: the maximum amount that the offender is likely to be able to pay under a sentence of reparation:
f: the frequency and magnitude of any payments that should be required under a sentence of reparation, if provision for payment by instalments is thought desirable.
2: The court may decline to seek a report under subsection (1) and impose a sentence of reparation without further inquiry if—
a: the court is satisfied as to the amount of reparation that the offender should pay; or
b: the type of information referred to in a reparation report is available through other means (including, without limitation, a declaration made following a direction under section 41
c: in all the circumstances the court considers that a report is unnecessary.
3: For the purposes of the preparation of a reparation report, a court may direct the offender to make a declaration as to his or her financial capacity in accordance with section 42 1985 No 120 s 22(3) Section 33(1) amended 7 July 2004 section 4(1) Sentencing Amendment Act 2004 Section 33(1)(b) amended 7 July 2004 section 4(2)(a) Sentencing Amendment Act 2004 Section 33(1)(c)(i) amended 7 July 2004 section 4(2)(b) Sentencing Amendment Act 2004 Section 33(1)(c)(ii) replaced 6 December 2014 section 7 Sentencing Amendment Act 2014
34: Reparation reports
1: A probation officer or other person who is required by a court to prepare a report under section 33
2: If agreement is reached, the probation officer or other person must report the terms of the agreement to the court (in addition to any other matters on which the court has required a report).
3: If no agreement is reached, the probation officer or other person must,—
a: in respect of emotional harm, state in the report the respective positions of the offender and the person who suffered the harm, and that the matter is unresolved; and
b: in respect of loss of, or damage to, property, either—
i: determine the value of the loss or damage and the consequential loss or damage on the evidence available, and include that value in the report; or
ii: state in the report that the matter is unresolved; and
c: in respect of loss or damage consequential on emotional or physical harm, either—
i: determine the value of the loss or damage on the evidence available, and include that value in the report; or
ii: state in the report the respective positions of the offender and the person who suffered the loss or damage, and that the matter is unresolved.
4: Despite subsections (1) to (3), the person who suffered the harm, loss, or damage is not obliged to meet with the offender or otherwise participate in the preparation of the report.
5: The person who prepared a report under this section must give a copy to the person who suffered the harm, loss, or damage unless the court orders otherwise.
6: Failure to give a copy of any report in accordance with subsection (5) does not affect the validity of the proceedings in a court or of any order made or sentence imposed by a court. 1985 No 120 s 23
35: Taking into account financial capacity of offender
1: If the offender has insufficient means to pay the total value of the loss, damage, or harm, the court may sentence the offender to make—
a: reparation for any amount that is less than the value of the loss, damage, or harm; or
b: payment by instalments in respect of the loss, damage, or harm; or
c: both (a) and (b).
2: Subsection (3) applies if the court is considering whether to impose—
a: more than 1 sentence of reparation on an offender; or
b: a sentence of reparation and a sentence of a fine on an offender; or
c: a sentence of reparation on an offender who is subject to an earlier sentence or order of reparation or an earlier sentence of a fine, or a combination of any of those.
3: The court must take into account that any payments received from the offender must be applied in the order of priority set out in sections 86E to 86G 1985 No 120 s 22(6), (8) Section 35(2) replaced 13 February 2012 section 5 Sentencing Amendment Act 2011 Section 35(3) replaced 13 February 2012 section 5 Sentencing Amendment Act 2011
36: Payment conditions of sentence of reparation
1: If a court sentences an offender to make reparation, the court may—
a: make an order, under section 81(1)(a)
b: make an order, under section 83(1)
c: direct the Registrar to determine the conditions of payment of the reparation, including whether to—
i: require the offender to pay the reparation immediately under section 83(1)
ii: enter into an arrangement with the offender allowing the offender greater time to pay or allowing the offender to pay by instalments, or both, under section 86
2: If the court does not make an order or give a direction under subsection (1), the reparation must be paid in 1 lump sum within the time allowed for the payment of fines generally by section 80 Section 36 replaced 13 February 2012 section 6 Sentencing Amendment Act 2011
37: Copy of conditions of reparation to be given to person who suffered harm, loss, or damage
1: A copy of the conditions of a sentence of reparation must be given to the person who suffered the harm, loss, or damage.
2: Failure to give a copy of the conditions of the sentence in accordance with this section does not affect the validity of the proceedings in the court or of the sentence imposed by the court. 1985 No 120 s 24(c), (d)
38: Payment of sums to person who suffered harm, loss, or damage
1: Every sum payable under a sentence of reparation must be paid to the person who suffered the harm, loss, or damage, or, with that person's consent, to that person's insurer.
2: A sentence of reparation does not affect any right that the person who suffered the harm, loss, or damage has to recover by civil proceedings any damages in excess of the amount recovered under the sentence. 1985 No 120 s 24(e), (f)
38A: Cancellation of sentence of reparation
1: A court may, on an application under subsection (2) or (3) or on its own initiative,—
a: cancel a sentence of reparation; or
b: cancel a sentence of reparation and substitute any other sentence (including another sentence of reparation) that could have been imposed on the offender at the time when the offender was convicted of the offence for which the sentence was imposed.
2: An offender who is subject to a sentence of reparation or a Registrar may apply in accordance with section 72
3: A Registrar may apply in accordance with section 72
4: The court may make an order under subsection (1) (whether on application or on its own initiative) only if—
a: the person to whom the offender is required to pay the reparation—
i: has been informed and has been given the opportunity to be heard about the matter; or
ii: is unable to be found despite reasonable efforts made by the Registrar; and
b: the court is satisfied that—
i: the ground in subsection (2) or (3) has been established; and
ii: enforcement of the original sentence of reparation under Part 3 section 19
5: If the court is considering a substitute sentence,—
a: the court must take the following matters into account:
i: the amount of the original sentence of reparation that has been paid and the amount outstanding:
ii: any other sentences or orders imposed on the offender for the offending for which the original reparation was imposed and the extent to which the reparation was taken into account in imposing those sentences or orders; and
b: if the offender provided false or misleading information about the offender's financial position, the court may take the following matters into account:
i: the extent to which the information was false or misleading:
ii: the offender's culpability in providing the information, including whether, in the court's opinion, the offender intended to mislead the court.
6: If the court cancels a sentence of reparation, the amount of reparation outstanding is deemed to be remitted from the date the order is made or any other date that the court may specify. Section 38A inserted 1 August 2012 section 7 Sentencing Amendment Act 2011 Section 38A(4)(b)(ii) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011 Fines
39: Power to impose fine instead of imprisonment
, sentence of home detention,
1: If an enactment provides that a court may sentence an offender to imprisonment but does not prescribe a fine, the court may sentence the offender to pay a fine instead of sentencing the offender to imprisonment.
2: If an enactment provides that a court may sentence an offender to a community-based sentence but does not prescribe a fine, the court may sentence the offender to pay a fine instead of imposing a community-based sentence.
2A: If an enactment provides that a court may sentence an offender to a sentence of home detention but does not provide for a fine, the court may sentence the offender to pay a fine instead of imposing a sentence of home detention.
3: Subsections (1) , (2), and (2A)
4: 1985 No 120 s 26(1), (3) Section 39 heading amended 1 October 2007 section 16(1) Sentencing Amendment Act 2007 Section 39(2A) inserted 1 October 2007 section 16(2) Sentencing Amendment Act 2007 Section 39(3) amended 1 October 2007 section 16(3) Sentencing Amendment Act 2007 Section 39(4) repealed 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011
40: Determining amount of fine
1: In determining the amount of a fine, the court must take into account, in addition to the provisions of sections 7 to 10
2: Subsection (1) applies whether taking into account the financial capacity of the offender has the effect of increasing or reducing the amount of the fine.
3: If under an enactment an offender is liable to a fine of a specified amount, the offender may be sentenced to pay a fine of any less amount, unless a minimum fine is expressly provided for by that enactment.
4: Subsection (4A) applies if a court imposes a fine—
a: in addition to a sentence of reparation; or
b: on an offender who is subject to an earlier sentence or order of reparation.
4A: In fixing the amount of the fine, the court must take into account—
a: the amount of reparation payable; and
b: that any payments received from the offender must be applied in the order of priority set out in sections 86E to 86G
5: When considering the financial capacity of the offender under subsection (1), the court must not take into account that the offender is required to pay a levy under section 105B 1985 No 120 ss 26(4) 27 Section 40(4) replaced 13 February 2012 section 8 Sentencing Amendment Act 2011 Section 40(4A) inserted 13 February 2012 section 8 Sentencing Amendment Act 2011 Section 40(5) inserted 1 July 2010 section 6 Sentencing (Offender Levy) Amendment Act 2009
41: Financial capacity of offender
1: If the court considers that a fine of less than $100 may be an appropriate sentence, it may assume that the offender has the means to pay the fine unless evidence is presented to the contrary.
2: If the court considers that a fine of $100 or more may be an appropriate sentence, but it is uncertain about the offender's ability to pay the fine, the court may direct the offender to make a declaration as to his or her financial capacity in accordance with section 42
3: The court may decline to give a direction under subsection (2) and impose a fine without further inquiry if—
a: the type of information referred to in a declaration is available through other means (including, without limitation, a reparation report under section 33
b: in all the circumstances the court considers that a declaration is unnecessary. Criminal Justice Act 1991 s 20(1) (UK) Declaration as to financial capacity
42: Declaration as to financial capacity
A declaration as to financial capacity must contain information on all sources of income, assets, liabilities, and outgoings, including, without limitation,—
a: salary and wages:
b: benefits and pensions:
c: commissions:
d: interest and dividends:
e: income from rental property:
f: ownership of real estate:
g: vehicle ownership:
h: ownership of other property:
i: income and realisable assets that the offender does not currently have but which it is anticipated that the offender will receive during the 12 months following the date of giving the declaration:
j: debts:
k: essential outgoings of the offender and his or her dependants.
42A: Offender may be detained for purpose of making declaration
A court may direct that an offender be detained in the custody of the court for a period not exceeding 2 hours for the purpose of making a declaration of financial capacity in accordance with section 42 Section 42A inserted 13 February 2012 section 9 Sentencing Amendment Act 2011
43: Offence of providing false or misleading information
Every person is liable on section 42 Criminal Justice Act 1991 s 20(3) (UK) Section 43 amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011
2: Community-based sentences
44: Community-based sentences
1: In this Act, community-based sentence
a: a sentence of community work:
b: a sentence of supervision:
c: a sentence of intensive supervision:
d: a sentence of community detention.
2: In sentencing an offender to a community-based sentence, a court may have regard to the potential effect that a particular sentence may have in contributing to the development of an offender's work and living skills. Section 44 replaced 1 October 2007 section 17 Sentencing Amendment Act 2007 Supervision
45: Sentence of supervision
1: A court may sentence an offender to supervision if—
a: the offender is convicted of an offence punishable by imprisonment; or
ab: the offender is convicted of an offence and the enactment prescribing the offence expressly provides that a sentence of home detention may be imposed on conviction; or
b: the offender is convicted of an offence and the enactment prescribing the offence expressly provides that a community-based sentence may be imposed on conviction.
2: The sentence may be for a period, being not less than 6 months and not more than 1 year
3: This section is subject to sections 46 47 Section 45(1)(ab) inserted 1 October 2007 section 18(1) Sentencing Amendment Act 2007 Section 45(2) amended 1 October 2007 section 18(2) Sentencing Amendment Act 2007
46: Guidance on use of sentence of supervision
A court may impose a sentence of supervision only if the court is satisfied that a sentence of supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
47: Sentences of supervision in respect of 2 or more offences must be served concurrently
If a court imposes a sentence of supervision in respect of each of 2 or more offences (whether on the same occasion or on different occasions), the sentences must be served concurrently.
48: Conditions of sentence of supervision
An offender who is sentenced to supervision is subject to—
a: the standard conditions in section 49
b: any special conditions imposed by the court under section 50 section 52
49: Standard conditions of supervision
1: If an offender is sentenced to supervision, the following standard conditions apply:
a: the offender must report in person to a probation officer in the probation area in which the offender resides as soon as practicable and not later than 72 hours after the sentence is imposed unless the start date of the sentence has been deferred under section 20A(2)(b)
b: the offender must report to a probation officer as and when required to do so by a probation officer, and must notify the officer of his or her residential address and the nature and place of his or her employment when asked to do so:
c: the offender must not move to a new residential address in another probation area without the prior written consent of a probation officer:
d: if consent is given under paragraph (c), the offender must report in person to a probation officer in the new probation area in which the offender is to reside as soon as practicable, and not later than 72 hours, after the offender's arrival in the new area:
e: if an offender intends to change his or her residential address within a probation area, the offender must give a probation officer reasonable notice before moving from his or her residential address (unless notification is impossible in the circumstances) and must advise the probation officer of the new address:
f: the offender must not reside at any address at which a probation officer has directed the offender not to reside:
fa: the offender must, if a probation officer directs, allow the collection of biometric information:
g: the offender must not engage, or continue to engage, in any employment or occupation in which a probation officer has directed the offender not to engage or continue to engage:
h: the offender must not associate with any specified person, or with persons of any specified class, with whom a probation officer has, in writing, directed the offender not to associate:
i: the offender must take part in a rehabilitative and reintegrative needs assessment if and when directed to do so by a probation officer.
2: The conditions in subsection (1)(c) to (f) do not apply to the extent that they are inconsistent with—
a: any special conditions imposed by the court; or
b: in the case of an offender who is also subject to a sentence of community detention, any condition of that sentence. 1985 No 120 s 49 Section 49(1)(a) replaced 22 January 2014 section 17 Administration of Community Sentences and Orders Act 2013 Section 49(1)(fa) inserted 22 August 2017 section 58 Enhancing Identity Verification and Border Processes Legislation Act 2017 Section 49(2) replaced 1 October 2007 section 19 Sentencing Amendment Act 2007
50: Special conditions related to programme
A court may impose any special condition or conditions related to a programme if the court is satisfied that—
a: there is a significant risk of further offending by the offender; and
b: standard conditions alone would not adequately reduce that risk; and
c: the offender requires a programme to reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
51: Programmes
For the purposes of section 50 programme that is not residential in nature
a: any psychiatric or other counselling or assessment:
b: attendance at any medical, psychological, social, therapeutic, cultural, educational, employment-related, rehabilitative, or reintegrative programme:
c: placement in the care of any appropriate person, persons, or agency, approved by the chief executive of the Department of Corrections, such as, without limitation,—
i: an iwi, hapu, or whanau:
ii: a marae:
iii: an ethnic or cultural group:
iv: a religious group, such as a church or religious order:
v: members or particular members of any of the above. Section 51 amended 1 October 2007 section 20 Sentencing Amendment Act 2007
52: Other special conditions
1: A court may impose any of the special conditions described in subsection (2) if the court is satisfied that—
a: there is a significant risk of further offending by the offender; and
b: standard conditions alone would not adequately reduce that risk; and
c: the imposition of special conditions would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
2: The conditions referred to in subsection (1) are—
a: any conditions that the court thinks fit relating to the offender's place of residence (which may include a condition that the offender not move residence), finances, or earnings:
b: conditions requiring the offender to take prescription medication:
ba: conditions requiring the offender to undertake training in basic work and living skills:
bb: conditions prohibiting the offender from doing 1 or more of the following:
i: using (as defined in section 4(1)
ii: using a psychoactive substance:
iii: consuming alcohol:
c: any other conditions that the court thinks fit to reduce the likelihood of further offending by the offender.
3: No court may impose a condition under this section that the offender pay any fine, reparation, or other sum ordered to be paid on conviction, or that the offender perform any service that he or she could have been required to perform if he or she had been sentenced to community work.
3A: No court may impose a condition under this section that the offender submit to electronic monitoring.
3B: However, subsection (3A) does not prevent the court from imposing a drug or alcohol condition, which would mean that the offender may be required, under section 80ZO(2)(b)
4: No offender may be made subject to a special condition that requires the offender to take prescription medication unless the offender—
a: has been fully advised, by a person who is qualified to prescribe that medication, about the nature and likely or intended effect of the medication and any known risks; and
b: consents to taking the prescription medication.
5: An offender does not breach his or her conditions for the purposes of section 70 ; but the failure to take the medication may give rise to a ground for variation or cancellation of the sentence of supervision under section 54 Section 52(2)(ba) inserted 1 October 2007 section 21(1) Sentencing Amendment Act 2007 Section 52(2)(bb) inserted 15 May 2017 section 6(1) Sentencing (Drug and Alcohol Testing) Amendment Act 2016 Section 52(3A) inserted 1 October 2007 section 21(2) Sentencing Amendment Act 2007 Section 52(3B) inserted 15 May 2017 section 6(2) Sentencing (Drug and Alcohol Testing) Amendment Act 2016 Section 52(5) amended 1 October 2007 section 21(3) Sentencing Amendment Act 2007
53: Offender to be under supervision of probation officer
An offender who is subject to a sentence of supervision must be under the supervision of a probation officer in the probation area in which the offender resides for the time being, or of any other probation officer that the chief executive of the Department of Corrections may direct. 1985 No 120 s 48
54: Variation or cancellation of sentence of supervision
1: An offender who is subject to a sentence of supervision, or a probation officer, may apply in accordance with section 72
a: the offender is unable to comply, or has failed to comply, with any of the conditions of the sentence:
b: any programme to which the offender is subject is no longer available or suitable for the offender:
c: having regard to any change in circumstances since the sentence was imposed and to the manner in which the offender has responded to the sentence,—
i: the rehabilitation and reintegration of the offender would be advanced by the remission, suspension, or variation of special conditions, or the imposition of additional special conditions; or
ii: the continuation of the sentence is no longer necessary in the interests of the community or the offender.
2: A probation officer may apply in accordance with section 72
3: On an application under subsection (1) or subsection (2), the court may, if it is satisfied that the grounds on which the application is based have been established,—
a: remit, suspend, or vary any special conditions imposed by the court, or impose additional special conditions:
b: cancel the sentence:
c: cancel the sentence and substitute any other sentence (including another sentence of supervision) that could have been imposed on the offender at the time when the offender was convicted of the offence for which the sentence was imposed.
4: The court must not vary any existing condition or impose any new condition of a kind referred to in section 52(2)(b)
5: When determining a substitute sentence under subsection (3)(c), the court must take into account the portion of the original sentence that remains unserved at the time of the order.
6: If the court cancels a sentence under this section, the sentence expires on the date that the order is made, or on any other date that the court may specify.
7: If an application is made under this section for the remission, suspension, or variation of any condition imposed by the court, a probation officer may suspend the condition until the application has been heard and disposed of. Section 54(1)(c)(i) replaced 1 October 2007 section 22(1) Sentencing Amendment Act 2007 Section 54(3)(a) replaced 1 October 2007 section 22(2) Sentencing Amendment Act 2007
54AA: When time ceases to run on sentence of supervision
For the purpose of calculating how much time an offender has served on a sentence of supervision,—
a: time ceases to run on the sentence during any period between the date on which an application under section 54(1)(a)
b: some or all of the period between those dates may be regarded by the court as time served, as the court thinks appropriate in the circumstances, after taking into account—
i: the extent (if any) to which the offender has complied with any conditions of the sentence; and
ii: the amount of time (if any) that the offender has spent in custody. Section 54AA inserted 22 January 2014 section 18 Administration of Community Sentences and Orders Act 2013
54A: Application of section 54 during epidemic
1: While an epidemic management notice is in force,—
a: a probation officer who has applied in accordance with section 72 section 54(3) special
b: any probation officer may himself or herself vary the special section 72 section 54(3) ; and
c: a probation officer may vary or suspend any standard conditions of a sentence of supervision.
2: A variation under subsection (1)(a) or (b) has effect until the application concerned has been heard and disposed of.
3: Any variation or suspension of a standard condition under subsection (1)(c) has effect until the earlier of—
a: the revocation of the epidemic management notice; or
b: the date on which a probation officer rescinds the variation or suspension. Section 54A inserted 19 December 2006 section 5 Sentencing Amendment Act (No 2) 2006 Section 54A(1)(a) amended 1 October 2007 section 23(1) Sentencing Amendment Act 2007 Section 54A(1)(b) amended 1 October 2007 section 23(2) Sentencing Amendment Act 2007 Section 54A(1)(b) amended 1 October 2007 section 23(3) Sentencing Amendment Act 2007 Section 54A(1)(c) inserted 1 October 2007 section 23(3) Sentencing Amendment Act 2007 Section 54A(2) amended 1 October 2007 section 23(4) Sentencing Amendment Act 2007 Section 54A(3) inserted 1 October 2007 section 23(5) Sentencing Amendment Act 2007 Intensive supervision Heading inserted 1 October 2007 section 24 Sentencing Amendment Act 2007
54B: Sentence of intensive supervision
1: A court may sentence an offender to intensive supervision if—
a: the offender is convicted of an offence punishable by imprisonment; or
b: the offender is convicted of an offence and the enactment prescribing the offence expressly provides that a sentence of home detention may be imposed on conviction; or
c: the offender is convicted of an offence and the enactment prescribing the offence expressly provides that a community-based sentence may be imposed on conviction.
2: The sentence may be for a period, being not less than 6 months and not more than 2 years, that the court thinks fit. Section 54B inserted 1 October 2007 section 24 Sentencing Amendment Act 2007
54C: Guidance on use of sentence of intensive supervision
A court may impose a sentence of intensive supervision only if it is satisfied that—
a: a sentence of intensive supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender; and
b: the nature of the offender's rehabilitative or other needs requires the imposition of conditions—
i: for a period longer than 12 months; or
ii: that are not available through the sentence of supervision. Section 54C inserted 1 October 2007 section 24 Sentencing Amendment Act 2007
54D: Sentences of intensive supervision in respect of 2 or more offences must be served concurrently
If a court imposes a sentence of intensive supervision in respect of each of 2 or more offences (whether on the same occasion or on different occasions), the sentences must be served concurrently. Section 54D inserted 1 October 2007 section 24 Sentencing Amendment Act 2007
54E: Conditions of sentence of intensive supervision
An offender who is sentenced to intensive supervision is subject to—
a: the standard conditions in section 54F
b: any special conditions imposed by the court under section 54G 54I Section 54E inserted 1 October 2007 section 24 Sentencing Amendment Act 2007
54F: Standard conditions of intensive supervision
1: If an offender is sentenced to intensive supervision, the following standard conditions apply:
a: the offender must report in person to a probation officer in the probation area in which the offender resides as soon as practicable and not later than 72 hours after the sentence is imposed unless the start date of the sentence has been deferred under section 20A(2)(b)
b: the offender must report to a probation officer—
i: at least once in each week during the first 3 months of the sentence and at least once in each month during the remainder of the sentence; and
ii: as and when required to do so by a probation officer:
c: the offender must notify a probation officer of his or her residential address and the nature and place of his or her employment when asked to do so:
d: the offender must not move to a new residential address in another probation area without the prior written consent of a probation officer:
e: if consent is given under paragraph (d), the offender must report in person to a probation officer in the new probation area in which the offender is to reside as soon as practicable, and not later than 72 hours, after the offender's arrival in the new area:
f: if an offender intends to change his or her residential address within a probation area, the offender must give a probation officer reasonable notice before moving from his or her residential address (unless notification is impossible in the circumstances) and must advise the probation officer of the new address:
g: the offender must not reside at any address at which a probation officer has directed the offender not to reside:
ga: the offender must not leave or attempt to leave New Zealand without the prior written consent of a probation officer:
gb: the offender must, if a probation officer directs, allow the collection of biometric information:
h: the offender must not engage, or continue to engage, in any employment or occupation in which a probation officer has directed the offender not to engage or continue to engage:
i: the offender must not associate with any specified person, or with persons of any specified class, with whom a probation officer has, in writing, directed the offender not to associate:
j: the offender must take part in a rehabilitative and reintegrative needs assessment if and when directed to do so by a probation officer.
2: The conditions in subsection (1)(d) to (g) do not apply if, and to the extent that, they are inconsistent with—
a: any special condition imposed by the court; or
b: in the case of an offender who is also subject to a sentence of community detention, any condition of that sentence. Section 54F inserted 1 October 2007 section 24 Sentencing Amendment Act 2007 Section 54F(1)(a) replaced 22 January 2014 section 19 Administration of Community Sentences and Orders Act 2013 Section 54F(1)(ga) inserted 22 August 2017 section 59 Enhancing Identity Verification and Border Processes Legislation Act 2017 Section 54F(1)(gb) inserted 22 August 2017 section 59 Enhancing Identity Verification and Border Processes Legislation Act 2017
54G: Special conditions related to programmes
A court may impose any special condition or conditions related to a programme if the court is satisfied that—
a: there is a significant risk of further offending by the offender; and
b: standard conditions alone would not adequately reduce that risk; and
c: the offender requires a programme to reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender. Section 54G inserted 1 October 2007 section 24 Sentencing Amendment Act 2007
54H: Programmes
For the purposes of section 54G programme
a: any psychiatric or other counselling or assessment:
b: attendance at any medical, psychological, social, therapeutic, cultural, educational, employment-related, rehabilitative, or reintegrative programme:
c: placement in the care of any appropriate person, persons, or agency approved by the chief executive of the Department of Corrections, such as, and without limitation,—
i: an iwi, hapū, or whānau:
ii: a marae:
iii: an ethnic or cultural group:
iv: a religious group, such as a church or religious order:
v: members or particular members of any of the above. Section 54H inserted 1 October 2007 section 24 Sentencing Amendment Act 2007
54I: Other special conditions
1: A court may impose any of the special conditions described in subsection (3) if the court is satisfied that—
a: there is a significant risk of further offending by the offender; and
b: standard conditions alone would not adequately reduce that risk; and
c: the imposition of special conditions would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
2: A court may only impose a condition of the kind described in subsection (3)(d) (which relates to judicial monitoring) if it is also satisfied that, because of the special circumstances of the offender, this is necessary to assist the offender's compliance with the sentence.
3: The conditions referred to in subsections (1) and (2) comprise—
a: any conditions that the court thinks fit relating to the offender's place of residence (which may include a condition that the offender not move residence), finances, or earnings:
b: conditions requiring the offender to take prescription medication:
ba: conditions prohibiting the offender from doing 1 or more of the following:
i: using (as defined in section 4(1)
ii: using a psychoactive substance:
iii: consuming alcohol:
c: conditions requiring the offender to undertake training in basic work and living skills:
d: a condition requiring the offender to comply with the requirements of judicial monitoring under subpart 2B
e: any other conditions that the court thinks fit to reduce the likelihood of further offending by the offender:
f: a condition that the offender must, when required to do so by a probation officer, submit to the electronic monitoring of compliance with any conditions of his or her sentence imposed under paragraph (e) that prohibit the offender from entering or remaining in specified places or areas at specified times or at all times.
4: No court may impose a condition under this section that—
a: the offender pay any fine, reparation, or other sum ordered to be paid on conviction; or
b: the offender perform any service that he or she could have been required to perform if he or she had been sentenced to community work
c:
5: No offender may be made subject to a special condition that requires the offender to take prescription medication unless the offender—
a: has been fully advised, by a person who is qualified to prescribe that medication, about the nature and likely or intended effect of the medication and any known risks; and
b: consents to taking the prescription medication.
6: An offender does not breach his or her conditions for the purposes of section 70A section 54K Section 54I inserted 1 October 2007 section 24 Sentencing Amendment Act 2007 Section 54I(3)(ba) inserted 15 May 2017 section 7(1) Sentencing (Drug and Alcohol Testing) Amendment Act 2016 Section 54I(3)(f) inserted 22 December 2016 section 6(1) Sentencing (Electronic Monitoring of Offenders) Amendment Act 2016 Section 54I(4)(b) amended 22 December 2016 section 6(2) Sentencing (Electronic Monitoring of Offenders) Amendment Act 2016 Section 54I(4)(c) repealed 22 December 2016 section 6(3) Sentencing (Electronic Monitoring of Offenders) Amendment Act 2016
54IA: Electronic monitoring
1: This section applies to electronic monitoring imposed as a condition under section 54I(3)(f)
2: The purposes of an electronic monitoring condition are—
a: to deter the offender from breaching a whereabouts condition; and
b: to monitor compliance with a whereabouts condition.
3: The court must not impose an electronic monitoring condition unless it has had regard to the opinion of the chief executive of the Department of Corrections in a pre-sentence report provided under section 26
4: Information about an offender that is obtained through an electronic monitoring condition may be used both for the purposes referred to in subsection (2) and for the following purposes:
a: to verify compliance with a whereabouts condition:
b: to detect non-compliance with a whereabouts condition and the commission of offences:
c: to provide evidence of non-compliance with a whereabouts condition and the commission of offences:
d: to verify that the offender has not tampered or otherwise interfered with the ability of the electronic monitoring equipment to operate effectively and accurately.
5: An offender who is subject to an electronic monitoring condition—
a: may be required to have electronic monitoring equipment attached to his or her body; and
b: must comply with written instructions from a probation officer that are reasonably necessary for the effective administration of the electronic monitoring (for example, an instruction to regularly charge the equipment); and
c: fails to comply with the electronic monitoring condition if he or she does not comply with those written instructions.
6: The annual report of the Department of Corrections must include the following information about the use of electronic monitoring in the year reported on:
a: the number of offenders who were at any time subject to an electronic monitoring condition:
b: the average number of offenders who were subject to an electronic monitoring condition and the average duration of the condition:
c: the percentage of offenders who, while subject to an electronic condition, were—
i: convicted for failing to comply with the condition; or
ii: convicted of any other offence:
d: a description of the processes and systems that relate to electronic monitoring and that were in place during the year reported on.
7: In this section, whereabouts condition section 54I(3)(e) Section 54IA inserted 22 December 2016 section 7 Sentencing (Electronic Monitoring of Offenders) Amendment Act 2016
54J: Offender to be under supervision of probation officer
An offender who is subject to a sentence of intensive supervision is under the supervision of a probation officer in the probation area in which the offender resides for the time being, or of any other probation officer that the chief executive of the Department of Corrections may direct. Section 54J inserted 1 October 2007 section 24 Sentencing Amendment Act 2007
54K: Variation or cancellation of sentence of intensive supervision
1: An offender who is subject to a sentence of intensive supervision, or a probation officer, may apply, in accordance with section 72
a: the offender is unable to comply, or has failed to comply, with any of the conditions of the sentence:
b: any programme to which the offender is subject is no longer available or suitable for the offender:
c: having regard to any change in circumstances since the sentence was imposed and to the manner in which the offender has responded to the sentence,—
i: the rehabilitation and reintegration of the offender would be advanced by the remission, suspension, or variation of any special conditions, or the imposition of additional special conditions; or
ii: the continuation of the sentence is no longer necessary in the interests of the community or the offender.
2: A probation officer may apply, in accordance with section 72
3: On an application under subsection (1) or (2), the court may, if it is satisfied that the grounds on which the application is based have been established,—
a: remit, suspend, or vary any special conditions imposed by the court, or impose additional special conditions:
b: cancel the sentence:
c: cancel the sentence and substitute any other sentence (including another sentence of intensive supervision) that could have been imposed on the offender at the time when the offender was convicted of the offence for which the sentence was imposed.
4: If the court varies a special condition or imposes an additional special condition under subsection (3)(a), section 54I
5: When determining a substitute sentence under subsection (3)(c), the court must take into account the portion of the original sentence that remains unserved at the time of the order.
6: If the court cancels a sentence, the sentence expires on the date that the order is made or on any other date that the court may specify.
7: If an application is made under this section for the remission, suspension, or variation of any special condition imposed by the court, a probation officer may suspend the special condition until the application has been heard and disposed of. Section 54K inserted 1 October 2007 section 24 Sentencing Amendment Act 2007
54KA: When time ceases to run on sentence of intensive supervision
For the purpose of calculating how much time the offender has served on a sentence of intensive supervision,—
a: time ceases to run on the sentence during any period between the date on which an application under section 54K(1)(a)
b: some or all of the period between those dates may be regarded by the court as time served, as the court thinks appropriate in the circumstances, after taking into account—
i: the extent (if any) to which the offender has complied with any conditions of the sentence; and
ii: the amount of time (if any) that the offender has spent in custody. Section 54KA inserted 22 January 2014 section 20 Administration of Community Sentences and Orders Act 2013
54L: Application of section 54K during epidemic
1: While an epidemic management notice is in force,—
a: a probation officer who has applied in accordance with section 72 section 54K(3)
b: any probation officer may himself or herself vary the special conditions subject to which a sentence of intensive supervision was imposed by the court on an offender if the offender has applied in accordance with section 72 section 54K(3)
c: a probation officer may vary or suspend any standard conditions of a sentence of intensive supervision.
2: A variation under subsection (1)(a) or (b) has effect until the application concerned has been heard or disposed of.
3: Any variation or suspension of a standard condition under subsection (1)(c) has effect until the earlier of—
a: the revocation of the epidemic management notice; or
b: the date on which a probation officer rescinds the variation or suspension. Section 54L inserted 1 October 2007 section 24 Sentencing Amendment Act 2007 Community work
55: Sentence of community work
1: A court may sentence an offender to community work—
a: if the offender is convicted of an offence punishable by imprisonment; or
ab: if the offender is convicted of an offence and the enactment prescribing the offence expressly provides that a sentence of home detention may be imposed on conviction; or
b: if the offender is convicted of an offence and the enactment prescribing the offence expressly provides that a community-based sentence may be imposed on conviction.
2: The sentence may be for the number of hours, being not less than 40 or more than 400, that the court thinks fit.
3: This section is subject to sections 56 57 Section 55(1)(ab) inserted 1 October 2007 section 25 Sentencing Amendment Act 2007
56: Guidance on use of sentence of community work
1: In considering whether to impose a sentence of community work, the court must give particular consideration to—
a: whether the nature and circumstances of the offending make it appropriate for the offender to be held accountable to the community by making compensation to it
b: whether the sentence is appropriate having regard to the offender's character and personal history, and to any other relevant circumstances.
2: A sentence of community work is inappropriate if the court is satisfied that—
a: the offender has alcohol, drug, psychiatric, or intellectual problems that indicate that it is unlikely that he or she would complete a sentence of community work; or
b: for any other reason it is unlikely that the offender would complete a sentence of community work.
3: The court may assume that suitable work is available for the offender to perform under the sentence unless the court is advised otherwise by a probation officer. Section 56(1)(a) amended 1 October 2007 section 26 Sentencing Amendment Act 2007
57: Concurrent and cumulative sentences of community work
1: If a court imposes a sentence of community work on an offender who is already subject to a sentence of community work, the sentences must be served concurrently unless the court directs that they are to be served cumulatively.
2: If a court imposes a sentence of community work in respect of each of 2 or more offences, the sentences must be served concurrently unless the court directs that they are to be served cumulatively.
2A: If a court directs that sentences of community work be served cumulatively or concurrently
3: A sentence of community work must be served concurrently with any sentence of supervision, intensive supervision, community detention, or home detention, whether or not the sentences are imposed at the same time. Section 57(2A) inserted 1 October 2007 section 27(1) Sentencing Amendment Act 2007 Section 57(2A) amended 22 January 2014 section 21 Administration of Community Sentences and Orders Act 2013 Section 57(3) replaced 1 October 2007 section 27(2) Sentencing Amendment Act 2007
57A: Court may defer commencement date of sentence of community work
If a court imposes both a sentence of community work and a sentence of either intensive supervision or home detention, the court may defer the commencement of the sentence of community work for a specified period if, in its opinion, deferral is necessary to enable the offender to comply with—
a: in the case of a sentence of intensive supervision, any conditions imposed under section 54F 54G 54I
b: in the case of a sentence of home detention, any conditions imposed under section 80C 80D Section 57A inserted 1 October 2007 section 28 Sentencing Amendment Act 2007
58: Length of sentence of community work
1: If the court imposes a sentence of community work of 100 hours or less, that sentence must be served within 6 months of the date that it commences under section 75 75A 76
2: If the court imposes a sentence of community work of more than 100 hours, the offender must serve at least 100 hours in every 6-month period from the date on which the sentence commences until the number of hours imposed under the sentence has been served.
3: Any work done by an offender under a sentence of community work must be treated as having been done under that sentence and under any and each other concurrent sentence of community work that the offender was subject to at the time that the work was done. Section 58 replaced 1 October 2007 section 29 Sentencing Amendment Act 2007
59: Offender must report to probation officer
An offender who is subject to a sentence of community work must report in person to a probation officer in the probation area in which the offender resides—
a: as soon as practicable, and not later than 72 hours, after the sentence is imposed or, if the start date of the sentence has been deferred under section 20A(2)(b) 57A
b: as directed at any other time during the sentence for the purpose of monitoring the sentence. Section 59(a) amended 22 January 2014 section 22 Administration of Community Sentences and Orders Act 2013
59A: Offender must allow collection of biometric information
An offender who is subject to a sentence of community work must, if a probation officer directs, allow the collection of biometric information. Section 59A inserted 22 August 2017 section 60 Enhancing Identity Verification and Border Processes Legislation Act 2017
60: Offender must notify probation officer if offender changes residential address
If an offender who is subject to a sentence of community work moves to a new residential address, the offender must, within 72 hours, notify a probation officer of the offender's new residential address.
61: Probation officer must determine placement of offender for community work
As soon as practicable after a sentence of community work is imposed, and at any other time during the sentence if the probation officer thinks fit, a probation officer must determine in accordance with sections 62 63
a: on placement at a community work centre; or
b: on placement with another agency; or
c: on placement at a community work centre for a certain number of the hours of work and on placement with another agency for a certain number of the hours of work, as specified by the probation officer.
62: Guidance to probation officer in determining placement of offender for community work
For the purposes of section 61
a: the circumstances of the offending; and
b: how the offender could benefit from learning work habits or skills through the sentence; and
c: the offender's character and personal history; and
d: the offender's physical and mental capabilities; and
e: the outcome of any restorative justice processes that have occurred in the case; and
f: whether there is a community work centre within a reasonable distance of the offender's place of residence; and
g: whether there is any agency within a reasonable distance of the offender's place of residence that has sufficient suitable work available for the offender; and
h: any other relevant circumstances.
63: Authorised work for person sentenced to community work
1: The type of work that an offender may be required to perform for the purposes of a sentence of community work is work—
a: at or for any hospital or church or at or for any charitable, educational, cultural, or recreational institution or organisation (including a marae); or
b: at or for any other institution or organisation for old, infirm, or disabled persons, or at the home of any old, infirm, or disabled person; or
c: on any land of which the Crown or any public body is the owner or lessee or occupier, or any land that is administered by the Crown or any public body ; or
d: at or for any local authority (within the meaning of the Local Government Act 2002
2: No offender may be directed for the purposes of a sentence of community work to do any work if, in doing so, the offender would take the place of any person who would otherwise be employed in doing that work in the ordinary course of that person's paid employment. 1985 No 120 s 60 Section 63(1)(c) amended 1 October 2007 section 30 Sentencing Amendment Act 2007 Section 63(1)(d) inserted 1 October 2007 section 30 Sentencing Amendment Act 2007
64: When community work must be done
1: If community work is to be done on placement with an agency other than a community work centre, the days on which and the times at which the offender does the work must be fixed by agreement between a probation officer and the agency and notified in writing to the offender.
2: If the community work is to be done on placement at a community work centre, the days on which and the times at which the offender performs the work must be determined by a probation officer and notified in writing to the offender.
3: It is not necessary for all the periods of work to be of the same duration, but no period may be longer than 10 hours and no offender may be required to do more than 40 hours of community work per week.
4: The times at which the offender is required to report, and the periods during which he or she is required to do community work, must be such as to avoid interference, so far as practicable, with the offender's attendance at any place of education or employment, or with his or her religious observances.
65: Supervision of offender while doing community work
1: An offender who is directed to do community work on placement at a community work centre is subject to the control, direction, and supervision of a probation officer—
a: while the offender is at a community work centre; and
b: while the offender is at any other place at the direction, or with the permission, of a probation officer; and
c: while the offender is travelling between a community work centre and any other place referred to in paragraph (b), or between any 2 such places.
2: An offender who is directed to do community work on placement with an agency other than a community work centre is subject to the control, direction, and supervision of a probation officer at all times while the offender is doing work or is required to be doing work under the sentence.
66: Offender excused from reporting in certain circumstances
1: An offender who is subject to a sentence of community work may be excused from reporting during any period when the community work centre or other agency at which the offender is required to report is closed.
2: In special circumstances, a probation officer may excuse an offender from reporting on any day or during any period.
3: Without limiting subsection (2), if an offender is unable to report on any day or during any period because of illness or injury, a probation officer must, on being satisfied (whether before or after the failure to report) with the circumstances of the case, excuse the offender from the requirement to report on that day or during that period.
4: For the purpose of determining whether or not to excuse an offender under subsection (3), the probation officer may require that the offender obtain a certificate from a registered medical practitioner as to whether the offender is, will be, or was unfit to report on the day or during the period.
5: A certificate obtained in accordance with subsection (4) is not conclusive as to whether the offender is, will be, or was unfit to report.
6: To avoid doubt, if an offender is excused under this section from reporting, that does not have the effect of remitting any of the hours of community work required to be done under the sentence. 1985 No 120 s 41
66A: Probation officer may direct hours of work to be converted to training
1: This section applies to sentences of community work of at least 80 hours.
2: A probation officer may direct that a specified number of hours of work, not exceeding 20% of the total number of hours of work ordered by the court to be undertaken, be spent in training in basic work and living skills.
3: In determining whether to give a direction under this section, the probation officer must take account of—
a: the benefits of skill development to the offender for reducing the likelihood of reoffending; and
b: the need to hold the offender accountable to the community by making compensation to it.
4: A probation officer must not give a direction under this section unless—
a: it is reasonably practicable for the offender to undertake training in basic work and living skills (having regard to the availability of that training in the place where the offender lives); and
b: the offender consents to undertake that training.
5: Any hours spent by the offender training in basic work and living skills under a direction given under this section must, for all legal purposes, be treated as hours of authorised community work undertaken by the offender under his or her sentence.
6: Subsection (5) is subject to section 66C Section 66A replaced 22 January 2014 section 23 Administration of Community Sentences and Orders Act 2013
66B: Some hours of work may be converted to training
Section 66B repealed 22 January 2014 section 23 Administration of Community Sentences and Orders Act 2013
66C: Consequences of failing without excuse to complete training
If an offender fails, without reasonable excuse, to complete the number of hours training in basic work and living skills directed under section 66A
a: any hours spent by the offender undertaking that training are not to be treated as hours of authorised community work undertaken by the offender under his or her sentence:
b: the offender must, in addition to the period spent in training, but subject to section 67 Section 66C inserted 1 October 2007 section 31 Sentencing Amendment Act 2007 Section 66C amended 22 January 2014 section 24 Administration of Community Sentences and Orders Act 2013
66D: When hours of community work not counted
1: If an offender fails to carry out any work under a sentence of community work to the satisfaction of the probation officer, the probation officer may, subject to subsection (2), refuse to treat that work as work undertaken under the sentence.
2: The number of hours that the probation officer may refuse to treat as work undertaken under the sentence must not exceed 10% of the total number of hours under the sentence. Section 66D inserted 1 October 2007 section 31 Sentencing Amendment Act 2007
67: Remission of sentence of community work
If a probation officer is satisfied that the offender has a good record of compliance with a sentence of community work, the probation officer may remit up to 10% from the number of hours of community work imposed by the court.
67A: Remission of community work hours during epidemic
1: While an epidemic management notice is in force, the chief executive of the Department of Corrections may authorise probation officers to remit the hours of community work imposed by the court on offenders, for periods (in any individual case)—
a: of not more than 8 hours in any week; and
b: of not more in total than the lesser of 48 hours and one-third of the sentence imposed.
2: This section does not give any offender a right to a remission. Section 67A inserted 19 December 2006 section 6 Sentencing Amendment Act (No 2) 2006
68: Variation or cancellation of sentence of community work
1: An offender who is subject to a sentence of community work, or a probation officer, may apply in accordance with section 72
a: there has been a change of circumstances since the sentence was imposed that would justify the variation or cancellation of the sentence; or
b: having regard to any change in circumstances since the sentence was imposed and to the manner in which the offender has responded to the sentence, the continuation of the sentence is no longer necessary in the interests of the community or the offender.
2: A probation officer may apply in accordance with section 72
a: if an offender who is subject to a sentence of community work is convicted of an offence punishable by imprisonment; or
b: on the grounds that the offender has behaved in a manner described in any of paragraphs (a) to (j) of section 71(1)
3: On an application under subsection (1) or subsection (2), the court may, if it is satisfied that the grounds on which the application is based have been established,—
a: vary the sentence by reducing the number of hours of work to be done; or
b: cancel the sentence; or
c: cancel the sentence and substitute any other sentence (including another sentence of community work) that could have been imposed on the offender at the time when the offender was convicted of the offence for which the sentence was imposed.
4: When determining a substitute sentence under subsection (3)(c), the court must take into account the portion of the original sentence that remains unserved at the time of the order.
5: If the court cancels the sentence, the sentence expires on the date that the order is made or on any other date that the court may specify.
69: Extension of period within which community work must be done
1: An offender who is subject to a sentence of community work, or a probation officer, may apply in accordance with section 72
a: because of incapacity or any humanitarian or other reasons, it will be impossible for the offender to do the work during a certain period; or
b: it would be unreasonable to require the offender to do the work during that period.
2: On an application under subsection (1), the court may, if it is satisfied that the grounds in subsection (1) have been established, extend the period within which the work must be done by the amount that the court thinks fit.
69A: Extension during epidemic of period within which community work must be done
1: While an epidemic management notice is in force, the chief executive of the Department of Corrections may authorise probation officers to extend by not more than 12 months the total
2: This section does not give any offender a right to an extension. Section 69A inserted 19 December 2006 section 7 Sentencing Amendment Act (No 2) 2006 Section 69A(1) amended 1 October 2007 section 32 Sentencing Amendment Act 2007 Community detention Heading inserted 1 October 2007 section 33 Sentencing Amendment Act 2007
69B: Sentence of community detention
1: A court may sentence an offender to community detention if—
a: the offender is convicted of an offence punishable by imprisonment; or
b: the offender is convicted of an offence and the enactment prescribing the offence expressly provides that a sentence of home detention may be imposed on conviction; or
c: the offender is convicted of an offence and the enactment prescribing the offence expressly provides that a community-based sentence may be imposed on conviction.
2: The sentence term may be for a period, being no more than 6 months, that the court thinks fit.
3: The court must specify the curfew period and the curfew address when sentencing the offender to a sentence of community detention.
4: Every curfew period specified under subsection (3) must not be for a period of less than 2 hours, and the total of every curfew period for any week must not be more than 84 hours.
5: An offender is not in custody during the curfew period. Section 69B inserted 1 October 2007 section 33 Sentencing Amendment Act 2007
69C: Guidance on use of sentence of community detention
1: A court may impose a sentence of community detention if the court is satisfied—
a: that a sentence of community detention—
i: would reduce the likelihood of further offending by restricting the offender's movements during specified periods, including, but not limited to, offending of a particular type or at a particular time; or
ii: would achieve 1 or more of the purposes set out in section 7(1)(a), (b), (e), or (f)
b: that an electronically monitored curfew is appropriate, taking into account the nature and the seriousness of the offence and the circumstances and the background of the offender.
2: A court may sentence an offender to community detention if—
a: the court is satisfied that—
i: the proposed curfew address is suitable; and
ii: the relevant occupants (as defined in section 26A(4)
A: understand the conditions of the curfew that will apply to the offender; and
B: consent to the offender remaining at the address in accordance with the curfew; and
C: have been informed that they may withdraw their consent, at any time, to the offender serving the sentence at the curfew address; and
iii: the offender has been made aware of and understands all the conditions that will apply during the sentence and he or she agrees to comply with them; and
b: the proposed curfew address is in an area in which a community detention scheme is operated by the chief executive of the Department of Corrections.
3: Before imposing a sentence of community detention on an offender, a court must consider the pre-sentence report prepared by a probation officer in accordance with section 26A Section 69C inserted 1 October 2007 section 33 Sentencing Amendment Act 2007 Section 69C(3) inserted 22 January 2014 section 25 Administration of Community Sentences and Orders Act 2013
69D: Concurrent and cumulative sentences of community detention
1: If a court imposes a sentence of community detention on an offender who is already subject to a sentence of community detention, the sentences must be served concurrently unless the court directs that they are to be served cumulatively.
2: If a court imposes cumulative sentences of community detention or imposes 1 or more sentences of community detention on an offender who is already serving a sentence of community detention, the total term of the sentences of community detention must not be more than 6 months.
3: If a court imposes a sentence of community work and a sentence of community detention, or imposes one of them on an offender who is already subject to the other, the sentences must be served concurrently. Section 69D inserted 1 October 2007 section 33 Sentencing Amendment Act 2007
69E: Conditions of community detention during sentence term
1: An offender sentenced to community detention is subject to the following conditions during the sentence term:
a: during the curfew period—
i: the offender must not, at any time, leave the curfew address except in the circumstances set out in subsection (2):
ii: the offender is under the supervision of a probation officer and must co-operate with the probation officer and comply with any lawful direction given by that probation officer:
b: the offender must report in person to a probation officer in the probation area in which the offender resides—
i: as soon as practicable and not later than 24 hours after the sentence is imposed unless the 24 hours elapses on a weekend or a public holiday, in which case the offender must report on the next working day; or
ii: not later than 24 hours after the start date of the sentence if the sentence has been deferred under section 20A(2)(b)
c: the offender must report to a probation officer as and when required to do so by the probation officer, and must notify the probation officer of his or her residential address, any change to that address, and the nature and place of his or her employment when asked to do so:
d: the offender must keep in his or her possession the curfew order drawn up under section 74 constable
da: the offender must not leave or attempt to leave New Zealand without the prior written consent of a probation officer:
db: the offender must, if a probation officer directs, allow the collection of biometric information:
e: the offender must, when required to do so by a probation officer, submit to the electronic monitoring of compliance with the conditions of his or her sentence, which may require the offender to be connected to electronic monitoring equipment throughout the sentence term and not just throughout the curfew period:
f: the offender must, if required to submit to the electronic monitoring of his or her sentence, remain during the curfew period within the area defined by the probation officer.
2: An offender may leave the curfew address during the curfew period only—
a: to seek urgent medical or dental treatment; or
b: to avoid or minimise a serious risk of death or injury to the offender or any other person; or
c: with the approval of a probation officer—
i: to seek or engage in employment; or
ii: to attend training or other rehabilitative or reintegrative activities or programmes; or
iii: to attend a restorative justice conference or other process relating to the offender's offending; or
iv: to carry out any undertaking arising from any restorative justice process; or
d: with the approval of a probation officer and subject to any conditions imposed by the probation officer, on humanitarian grounds.
3: A probation officer may only give an approval under subsection (2)(c) if the offender is serving a sentence of supervision or intensive supervision together with the sentence of community detention.
3A: A probation officer must define the area within which an offender subject to electronic monitoring is required to remain at the curfew address during the curfew period and show that area to the offender and advise the relevant occupants (as defined in section 26A(4)(b)
4: A probation officer may approve an alternative curfew address under section 69K section 69I Section 69E inserted 1 October 2007 section 33 Sentencing Amendment Act 2007 Section 69E(1)(b) replaced 22 January 2014 section 26(1) Administration of Community Sentences and Orders Act 2013 Section 69E(1)(d) amended 1 October 2008 section 116(a)(ii) Policing Act 2008 Section 69E(1)(da) inserted 22 August 2017 section 61 Enhancing Identity Verification and Border Processes Legislation Act 2017 Section 69E(1)(db) inserted 22 August 2017 section 61 Enhancing Identity Verification and Border Processes Legislation Act 2017 Section 69E(1)(f) inserted 22 January 2014 section 26(2) Administration of Community Sentences and Orders Act 2013 Section 69E(3A) inserted 22 January 2014 section 26(3) Administration of Community Sentences and Orders Act 2013
69F: Electronic monitoring
1: The purpose of an electronic monitoring condition imposed as a condition under section 69E(1)(e)
2: Information about an offender that is obtained through electronic monitoring, may be used only for the purposes referred to in subsection (1) and for the following purposes:
a: to verify compliance with the condition that the offender remain at the curfew address during the curfew period:
b: to detect non-compliance with that condition:
c: to provide evidence of non-compliance with that condition and the commission of offences during the curfew period:
d: to verify that the offender has not tampered or otherwise interfered with the ability of the electronic monitoring equipment to operate effectively and accurately.
3: Information may be collected during the whole of the sentence term but may be used only if it was collected for 1 or more of the purposes set out in this section and, except for information collected for the purpose in subsection (2)(d), was collected during the curfew period.
4: Any information obtained by electronic monitoring outside the curfew period must be destroyed as soon as practicable. Section 69F inserted 1 October 2007 section 33 Sentencing Amendment Act 2007
69G: Offence to breach conditions of community detention
An offender commits an offence, and is liable on
a: fails, without reasonable excuse, to comply with any condition of a sentence of community detention; or
b: fails, without reasonable excuse, to report when required to do so under section 78 80 Section 69G inserted 1 October 2007 section 33 Sentencing Amendment Act 2007 Section 69G amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011
69H: Offence to refuse entry to community detention curfew address
1: Every person commits an offence, and is liable on
2: Every person commits an offence, and is liable on
3: For the purposes of subsection (2), an authorised person
a: is a probation officer and has identified himself or herself; or
b: accompanies a person described in paragraph (a); or
c: is authorised in writing by a probation officer and has produced that written authority to an occupant of the residence. Section 69H inserted 1 October 2007 section 33 Sentencing Amendment Act 2007 Section 69H(1) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011 Section 69H(2) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011
69I: Variation or cancellation of sentence of community detention
1: An offender who is subject to a sentence of community detention, or a probation officer, may apply, in accordance with section 72
a: the offender is unable to comply, or has failed to comply, with any conditions of the sentence; or
b: the curfew address is no longer available or suitable because of a change in circumstances; or
c: having regard to any changes in circumstances since the sentence was imposed and to the manner in which the offender has responded to the sentence,—
i: the rehabilitation and reintegration of the offender would be advanced by the suspension or variation of the curfew period; or
ii: the continuation of the sentence is no longer necessary in the interests of the community or the offender.
2: A probation officer may apply for an order under subsection (3) if an offender, who is subject to a sentence of community detention, is convicted of an offence punishable by imprisonment.
3: On an application under subsection (1) or (2), the court may, if it is satisfied that the grounds on which the application is based have been established,—
a: suspend or vary the curfew period; or
b: vary the curfew address; or
c: cancel the sentence; or
d: cancel the sentence and substitute any other sentence (including another sentence of community detention) that could have been imposed on the offender at the time that the offender was convicted of the offence for which the sentence was imposed.
3A: When an application is made under this section
a: issue to a constable a warrant for the offender's arrest:
b: bail the offender or remand the offender in custody if the application cannot be determined immediately.
4: When determining a substitute sentence to be imposed under subsection (3)(d), the court must take into account the portion of the original sentence that remains unserved at the time of the order.
5: If the court cancels the sentence, the sentence expires on the date that the order is made or on any other date that the court may specify.
6: If an application is made under this section for the suspension or variation of the curfew period, a probation officer may suspend the curfew period until the application has been heard and disposed of. Section 69I inserted 1 October 2007 section 33 Sentencing Amendment Act 2007 Section 69I(3A) inserted 22 January 2014 section 27 Administration of Community Sentences and Orders Act 2013 Section 69I(3A) amended 17 December 2016 section 96 Statutes Amendment Act 2016
69IA: When time ceases to run on sentence of community detention
For the purpose of calculating how much time an offender has served on a sentence of community detention,—
a: time ceases to run on the sentence during any period between the date on which an application under section 69I(1)(a)
b: some or all of the period between those dates may be regarded by the court as time served, as the court thinks appropriate in the circumstances, after taking into account—
i: the extent (if any) to which the offender has complied with any conditions of the sentence; and
ii: the amount of time (if any) that the offender has spent in custody. Section 69IA inserted 22 January 2014 section 28 Administration of Community Sentences and Orders Act 2013
69J: Application of section 69I during epidemic
1: While an epidemic management notice is in force,—
a: a probation officer who has applied in accordance with section 72 section 69I(3)
b: any probation officer may himself or herself vary the curfew period subject to which a sentence of community detention was imposed by the court on an offender if the offender has applied in accordance with section 72 section 69I(3)
c: a probation officer may vary or suspend any conditions of a sentence of community detention.
2: A variation under subsection (1)(a) or (b) has effect until the application concerned has been heard or disposed of.
3: Any variation or suspension of a condition under subsection (1)(c) has effect until the earlier of—
a: the revocation of the epidemic management notice; or
b: the date on which a probation officer rescinds the variation or suspension. Section 69J inserted 1 October 2007 section 33 Sentencing Amendment Act 2007
69JA: Chief executive of Department of Corrections may vary offender's curfew address
1: The chief executive of the Department of Corrections may vary an offender's curfew address if—
a: the curfew address is no longer available or suitable because of a change in circumstances; and
b: an alternative address is suitable; and
c: every relevant occupant (as defined in section 26A(4)(b)
d: the alternative address is in an area in which a community detention scheme is administered by the Department of Corrections; and
e: the offender has given written consent to the change in address.
2: A probation officer may, subject to subsection (3), approve a provisional curfew address at which the offender must remain during the curfew period pending a decision by the chief executive under subsection (1).
3: If the chief executive does not vary a curfew address within 10 days after a provisional curfew address is approved under subsection (2),—
a: a probation officer must approve another provisional curfew address at which the offender must remain during the curfew period pending a decision by the chief executive under subsection (1); or
b: a probation officer must apply to the court for an order under section 69I(3)
4: If the chief executive does not vary a curfew address within 10 days after the probation officer has approved a provisional curfew address under subsection (3)(a),—
a: the probation officer must apply to the court for an order under section 69I(3)
b: the offender must, unless the probation officer directs otherwise, remain at the provisional curfew address approved under subsection (3)(a) during the curfew period pending the decision of the court. Section 69JA inserted 22 January 2014 section 29 Administration of Community Sentences and Orders Act 2013
69K: Alternative curfew address pending determination of application under section 69I
Section 69K repealed 22 January 2014 section 30 Administration of Community Sentences and Orders Act 2013
69L: When sentence ends on non-release day
If the last day of an offender's sentence of community detention falls on a non-release day, the offender ceases to be subject to the sentence on the nearest preceding day that is not a non-release day. Section 69L inserted 1 October 2007 section 33 Sentencing Amendment Act 2007
69M: Community detention does not affect entitlements under
Social Security Act 2018 The fact that a person is serving a sentence of community detention does not, of itself, affect any entitlement the person may have under the Social Security Act 2018 Section 69M inserted 1 October 2007 section 33 Sentencing Amendment Act 2007 Section 69M heading amended 26 November 2018 section 459 Social Security Act 2018 Section 69M amended 26 November 2018 section 459 Social Security Act 2018 Offences related to community-based sentences
70: Offences related to breach of conditions of supervision
An offender commits an offence, and is liable on
a: fails, without reasonable excuse, to comply with any condition of a sentence of supervision; or
b: fails, without reasonable excuse, to report when required to do so under section 78 section 80 1985 No 120 s 52(1) Section 70 amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011
70AA: Offences related to sentences of supervision with drug or alcohol conditions
An offender who is subject to a sentence of supervision with a drug or alcohol condition commits an offence, and is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $1,000, if the offender—
a: refuses or fails, without reasonable excuse,—
i: to undergo a testing procedure when required to do so under sections 80ZO(2)(a) 80ZQ
ii: to submit to continuous monitoring when required to do so under section 80ZO(2)(b)
iii: to comply with instructions specified in a notice given under section 80ZO(2)(b)
iv: to accompany an authorised person, when required to do so under section 80ZQ(4)
v: to contact a specified automated system when required to do so under section 80ZO(2)(c)
vi: to report, at any time or times when required to do so under section 80ZQ(5)
vii: to undergo a testing procedure when required to do so under sections 80ZO(2)(c) 80ZQ
b: does anything with the intention of diluting or contaminating a bodily sample required under section 80ZO(2)(a) or (c)
c: tampers with a drug or alcohol monitoring device required under section 80ZO(2)(b) Section 70AA inserted 15 May 2017 section 8 Sentencing (Drug and Alcohol Testing) Amendment Act 2016
70A: Offence to breach conditions of intensive supervision
An offender commits an offence, and is liable on
a: fails, without reasonable excuse, to comply with any condition of a sentence of intensive supervision; or
b: fails, without reasonable excuse, to report when required to do so under section 78 80 Section 70A inserted 1 October 2007 section 34 Sentencing Amendment Act 2007 Section 70A amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011
70B: Offences related to sentences of intensive supervision with drug or alcohol conditions
An offender who is subject to a sentence of intensive supervision with a drug or alcohol condition commits an offence, and is liable on conviction to imprisonment for a term not exceeding 6 months or to a fine not exceeding $1,500, if the offender—
a: refuses or fails, without reasonable excuse,—
i: to undergo a testing procedure when required to do so under sections 80ZO(2)(a) 80ZQ
ii: to submit to continuous monitoring when required to do so under section 80ZO(2)(b)
iii: to comply with instructions specified in a notice given under section 80ZO(2)(b)
iv: to accompany an authorised person, when required to do so under section 80ZQ(4)
v: to contact a specified automated system when required to do so under section 80ZO(2)(c)
vi: to report, at any time or times when required to do so under section 80ZQ(5)
vii: to undergo a testing procedure when required to do so under sections 80ZO(2)(c) 80ZQ
b: does anything with the intention of diluting or contaminating a bodily sample required under section 80ZO(2)(a) or (c)
c: tampers with a drug or alcohol monitoring device required under section 80ZO(2)(b) Section 70B inserted 15 May 2017 section 9 Sentencing (Drug and Alcohol Testing) Amendment Act 2016
71: Offences relating to breach of sentence of community work
1: An offender who is sentenced to community work commits an offence, and is liable on
a: fails, without reasonable excuse, to report to a probation officer in accordance with section 59 section 78 section 80
ab: fails, without reasonable excuse, to allow the collection of biometric information in accordance with section 59A
b: fails, without reasonable excuse, to notify a probation officer of any new residential address in accordance with section 60
c: fails, without reasonable excuse, to—
i: do any work satisfactorily in accordance with the sentence; or
ii: comply with the terms of any agreement entered into for the purposes of section 64(1)
d: fails, without reasonable excuse, to complete the required number of hours of work within the period prescribed under section 58 section 69 or 69A
e: accepts remuneration, whether by way of gift or otherwise, for any work that the offender is required to do for the purposes of the sentence; or
f: fails, without reasonable excuse, to report or to remain at any place as required by or under this subpart; or
g: fails, without reasonable excuse, to obey any rules governing a community work centre; or
h: fails, without reasonable excuse, to obey any directions lawfully given regarding the manner in which his or her time must be spent while under the supervision of a probation officer under section 65
i: refuses to work, or fails to work in the manner reasonably required of the offender, or neglects or intentionally mismanages his or her work, while under the supervision of a probation officer under section 65
j: behaves in an offensive, threatening, insolent, insulting, disorderly, or indecent manner while under the supervision of a probation officer under section 65
2: A person commits an offence, and is liable on 1985 No 120 ss 36 45 Section 71(1) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011 Section 71(1)(ab) inserted 22 August 2017 section 62 Enhancing Identity Verification and Border Processes Legislation Act 2017 Section 71(1)(d) amended 1 October 2007 section 35 Sentencing Amendment Act 2007 Section 71(2) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011 Section 71(2) amended 1 October 2008 section 116(a)(ii) Policing Act 2008 Review of community-based sentences and cancellation of sentences of reparation Heading amended 1 August 2012 section 10(1) Sentencing Amendment Act 2011
72: Jurisdiction and procedure
1: Every application under section 38A 54 , 54K 68 69I
a: to the High Court, if the sentence was passed—
ia: by the Supreme Court on appeal against a sentence imposed by the High Court, or imposed by the Court of Appeal on appeal from the High Court; or
i: by the Court of Appeal on appeal from the High Court; or
ii: by the High Court otherwise than on appeal from the District Court
b: to the District Court presided
ia: by the Supreme Court on appeal against a sentence imposed by the District Court presided the District Court presided
i: by the Court of Appeal on appeal from the District Court presided
ii: by a District Court Judge on conviction following a jury trial
c: to the District Court
d: to the District Court
2: A copy of the application must, either before or as soon as practicable after the application is lodged in the office of the court, be served—
a: on the offender, if the offender is not the applicant; or
b: on the chief executive of the Ministry of Justice, if a Registrar is not the applicant under section 38A
c: on the chief executive of the Department of Corrections, if a probation officer is not the applicant under section 54 54K 68 69I
2A: An application under section 38A section 79A 79B
2B: If an application under section 38A
2C: Sections 88AA 88AC
2D: For the purposes of section 310 section 295
3: If an application under section 54 54K 68 69I
4: No warrant issued under subsection (3) may be executed otherwise than by a constable
5: If an offender is arrested under a warrant issued under subsection (3), sections 167 to 170 206 385 a charging document 1985 No 120 s 65 Section 72(1) amended 1 August 2012 section 10(2) Sentencing Amendment Act 2011 Section 72(1) amended 1 October 2007 section 36(1) Sentencing Amendment Act 2007 Section 72(1)(a)(ia) inserted 1 January 2004 section 48(1) Supreme Court Act 2003 Section 72(1)(a)(ii) amended 1 March 2017 section 261 District Court Act 2016 Section 72(1)(b) amended 1 March 2017 section 261 District Court Act 2016 Section 72(1)(b)(ia) inserted 1 January 2004 section 48(1) Supreme Court Act 2003 Section 72(1)(b)(ia) amended 1 March 2017 section 261 District Court Act 2016 Section 72(1)(b)(i) amended 1 March 2017 section 261 District Court Act 2016 Section 72(1)(b)(ii) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011 Section 72(1)(c) replaced 22 January 2014 section 31(1) Administration of Community Sentences and Orders Act 2013 Section 72(1)(c) amended 1 March 2017 section 261 District Court Act 2016 Section 72(1)(d) inserted 22 January 2014 section 31(1) Administration of Community Sentences and Orders Act 2013 Section 72(1)(d) amended 1 March 2017 section 261 District Court Act 2016 Section 72(2)(b) replaced 1 August 2012 section 10(3) Sentencing Amendment Act 2011 Section 72(2)(c) inserted 1 August 2012 section 10(3) Sentencing Amendment Act 2011 Section 72(2A) inserted 1 August 2012 section 10(4) Sentencing Amendment Act 2011 Section 72(2B) inserted 1 August 2012 section 10(4) Sentencing Amendment Act 2011 Section 72(2C) inserted 1 August 2012 section 10(4) Sentencing Amendment Act 2011 Section 72(2D) inserted 1 August 2012 section 10(4) Sentencing Amendment Act 2011 Section 72(2D) amended 1 October 2018 section 443(3) Customs and Excise Act 2018 Section 72(3) replaced 22 January 2014 section 31(2) Administration of Community Sentences and Orders Act 2013 Section 72(4) amended 1 October 2008 section 116(a)(ii) Policing Act 2008 Section 72(5) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011
73: Appeal in respect of substituted sentence
For the purposes of any appeal or application for leave to appeal, a sentence substituted for a community-based sentence imposed on the conviction of the offender on a charge is deemed to be a sentence imposed on the conviction of the offender on that charge. Section 73 replaced 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011 Miscellaneous provisions
74: Order must be drawn up and copy given to offender, etc
1: If a court imposes a community-based sentence on an offender, the particulars of the sentence must be drawn up in the form of an order.
2: Wherever practicable, a copy of the order must be given to the offender before he or she leaves the court.
3: The order must include information regarding—
a: the nature of the sentence; and
b: the initial reporting obligations; and
c: the date on which the sentence commences; and
d: the obligations to comply with the instructions of a probation officer and the terms of the sentence; and
e: the consequences of non-compliance with the terms of the sentence; and
f: the statutory provisions under which the sentence may be varied or cancelled.
3A: If the community-based sentence is a sentence of community detention, then, in addition to the information required to be included in the order under subsection (3), the order must also include—
a: the sentence term; and
b: the curfew period; and
c: the conditions that apply, including those that apply for the duration of the sentence term and those that only apply during the curfew period.
4: For the purposes of subsection (1), a court may direct that the offender be detained in the custody of the court for a period, not exceeding 2 hours, that may be necessary to enable the order to be drawn up and a copy given to the offender.
5: If it is not practicable to give a copy of the order to the offender before the offender leaves the court, a copy must be given to the offender in person as soon as practicable after the offender leaves the court.
6: A copy of the order must be given to the chief executive of the Department of Corrections as soon as possible after it is drawn up. 1985 No 120 s 58 Section 74(3A) inserted 1 October 2007 section 37 Sentencing Amendment Act 2007
75: Commencement of community-based sentences
1: A community-based sentence commences on the day on which it is imposed.
2: Subsection (1) applies—
a: subject to this section and sections 75A 75B sections 345 346
b: regardless of whether or not the sentence is imposed in substitution for another sentence.
2A: If the commencement date of a sentence of community work is deferred under section 57A
3: If a community-based sentence is imposed as a second sentence and deferred under section 20A(2)(b)
a: the community-based sentence commences on the date that the first sentence is completed; or
b: if the offender is subject to post-detention conditions imposed in respect of the first sentence, the community-based sentence commences on the date that the offender is no longer subject to those conditions.
4:
5:
6:
7:
8: Section 75(2)(a) amended 22 January 2014 section 32(1) Administration of Community Sentences and Orders Act 2013 Section 75(2)(a) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011 Section 75(2)(a) amended 1 October 2007 section 38(1) Sentencing Amendment Act 2007 Section 75(2A) inserted 1 October 2007 section 38(2) Sentencing Amendment Act 2007 Section 75(3) replaced 22 January 2014 section 32(2) Administration of Community Sentences and Orders Act 2013 Section 75(4) repealed 1 October 2007 section 38(3) Sentencing Amendment Act 2007 Section 75(5) repealed 1 October 2007 section 38(3) Sentencing Amendment Act 2007 Section 75(6) repealed 1 October 2007 section 38(3) Sentencing Amendment Act 2007 Section 75(7) repealed 1 October 2007 section 38(3) Sentencing Amendment Act 2007 Section 75(8) repealed 1 October 2007 section 38(3) Sentencing Amendment Act 2007
75A: Commencement of cumulative sentences of community work
1: If a sentence of community work is imposed cumulatively on another sentence of community work imposed at the same time,—
a: at least 1 of the sentences must commence on the day that sentence is imposed; and
b: the commencement date for the subsequent sentence is the date of the completion of the hours of community work under the first sentence of community work to be served.
2: If a sentence of community work is imposed cumulatively on another sentence of community work to which the offender is already subject, the commencement date for the subsequent sentence is the date of the completion of the hours of community work under the first sentence of community work to be served.
3: To avoid doubt, if a sentence of community work is imposed cumulatively on another sentence of community work, hours of work done under either of the sentences on the date referred to in subsections (1)(b) or (2) are not counted towards the hours of work required to be done under the other sentence.
4: If a sentence of community work is imposed cumulatively on another sentence of community work (the first sentence
a: the commencement date for the subsequent sentence is the date on which the subsequent sentence was imposed; and
b: any hours of work completed under the quashed sentence must be treated as having been done under the subsequent sentence.
5: If a sentence of community work is imposed cumulatively on another sentence of community work (the first sentence
a: the commencement date for the subsequent sentence is the date on which the first sentence was cancelled; and
b: to avoid doubt, any hours of work completed under the cancelled sentence must not be treated as having been done under the subsequent sentence.
6: A sentence of community work expires on the date that the offender completes the hours of work required under the sentence (taking into account any hours remitted under section 67 section 58 section 69 69A Section 75A inserted 1 October 2007 section 39 Sentencing Amendment Act 2007
75B: Commencement of cumulative sentences of community detention
1: If a sentence of community detention is imposed cumulatively on another sentence of community detention imposed at the same time,—
a: at least 1 of the sentences must commence on the day that sentence is imposed; and
b: the commencement date for the subsequent sentence is the date of the completion of the term of community detention under the first sentence of community detention to be served.
2: If a sentence of community detention is imposed cumulatively on another sentence of community detention to which the offender is already subject, the commencement date for the subsequent sentence is the date of the completion of the term of community detention under the first sentence of community detention to be served.
3: To avoid doubt, if a sentence of community detention is imposed cumulatively on another sentence of community detention, any period during which the offender was subject to either of the sentences referred to in subsections (1)(b) or (2) is not counted towards the term of the other sentence.
4: If a sentence of community detention is imposed cumulatively on another sentence of community detention (the first sentence
a: the commencement date for the subsequent sentence is the date on which the subsequent sentence was imposed; and
b: any period during which the offender was subject to the quashed sentence must be treated as having been served under the subsequent sentence.
5: If a sentence of community detention is imposed cumulatively on another sentence of community detention (the first sentence
a: the commencement date for the subsequent sentence is the date on which the first sentence was cancelled; and
b: to avoid doubt, any period during which the offender was subject to the cancelled sentence must not be treated as having been served under the subsequent sentence. Section 75B inserted 1 October 2007 section 39 Sentencing Amendment Act 2007
76: Commencement of community-based sentence after temporary surrender under Extradition Act 1999
1: This section applies if an offender is temporarily surrendered to New Zealand under the Extradition Act 1999
a: is convicted and sentenced under this Act to a community-based sentence; and
b: is required to be returned in accordance with section 66(2)
2: Unless the court otherwise directs, the sentence imposed does not commence until the offender has reported to a probation officer after being returned to New Zealand.
3: Except as provided in subsection (3A), an offender to whom this section applies must report to a probation officer within 72 hours of the offender's arrival in New Zealand.
3A: An offender who is sentenced to community detention must report within 24 hours, unless the 24 hours elapses on a weekend or public holiday, in which case the offender must report on the next working day.
4: This section applies despite any other provisions in this Act. 1985 No 120 s 59A Section 76(3) replaced 1 October 2007 section 40 Sentencing Amendment Act 2007 Section 76(3A) inserted 1 October 2007 section 40 Sentencing Amendment Act 2007
77: Application of
Accident Compensation Act 2001 When an offender performs any service or does any work or attends any course or programme for the purposes of a community-based sentence, the following provisions apply:
a: if the offender suffers any personal injury for which he or she has cover under the Accident Compensation Act 2001
i: the personal injury is deemed, for the purposes of section 97
ii: the Crown is liable to pay compensation to which the offender is entitled under that section:
b: the cost of all other entitlements of the offender under that Act must be met from the Earners' Account in the case of an offender who is an earner and from the Non-Earners' Account in all other cases. 1985 No 120 s 62 Section 77 heading amended 3 March 2010 section 5(1)(b) Accident Compensation Amendment Act 2010 Section 77(a) amended 3 March 2010 section 5(1)(b) Accident Compensation Amendment Act 2010
78: Effect of subsequent sentence of imprisonment
1: Subsection (2) applies if an offender who is subject to a community-based sentence is subsequently sentenced to—
a: a term of imprisonment of not more than 12 months; or
b: 2 or more terms of imprisonment to be served concurrently, each term of which is not more than 12 months; or
c: 2 or more terms of imprisonment that are cumulative, the total term of which is not more than 12 months.
2: If this subsection applies, the court must either—
a: order that the community-based sentence be suspended; or
b: order that the community-based sentence be suspended for the duration of the period in which the offender is detained under the sentence or sentences of imprisonment.
3: If the court suspends the community-based sentence under subsection (2)(b), it may, if it thinks fit, remit, suspend, or vary any conditions of the sentence imposed by the court, or impose additional conditions.
4: The court must not vary any existing condition or impose any new condition of a kind referred to in section 52(2)(b) 54I(3)(b)
a: has been fully advised by a person who is qualified to prescribe that medication about the nature and likely or intended effect of any variation or new condition in relation to the medication and any known risks; and
b: consents to taking the prescription medication.
5: If a community-based sentence is suspended under subsection (2)(b),—
a: except as provided in paragraph (b), the offender must report to a probation officer as soon as practicable, and not later than 72 hours, after being released from detention; and
b: an offender who is sentenced to community detention must report within 24 hours after being released from detention, unless the 24 hours elapses on a weekend or public holiday, in which case the offender must report on the next working day; and
c: the sentence does not resume until the offender has reported to a probation officer as required by paragraphs (a) or (b).
6: Subsection (7) applies if an offender who is subject to a community-based sentence is subsequently sentenced to—
a: a term of imprisonment of more than 12 months; or
b: 2 or more terms of imprisonment to be served concurrently, each term of which is more than 12 months; or
c: 2 or more terms of imprisonment that are cumulative, the total term of which is more than 12 months.
7: If this subsection applies, the community-based sentence is suspended. Section 78(4) amended 1 October 2007 section 41(1) Sentencing Amendment Act 2007 Section 78(5)(a) replaced 1 October 2007 section 41(2) Sentencing Amendment Act 2007 Section 78(5)(b) replaced 1 October 2007 section 41(2) Sentencing Amendment Act 2007 Section 78(5)(c) inserted 1 October 2007 section 41(2) Sentencing Amendment Act 2007
79: Period of suspension not counted towards sentence
1: No period during which a sentence of supervision is suspended under section 78(2) or (7) section 45(2)
2: No period during which a sentence of community work is suspended under section 78(2) or (7) section 58(1) and (2)
3: No period during which a sentence of intensive supervision is suspended under section 78(2) or (7) section 54B(2)
4: No period during which a sentence of community detention is suspended under section 78(2) or (7) section 69B(2) Section 79(3) inserted 1 October 2007 section 42 Sentencing Amendment Act 2007 Section 79(4) inserted 1 October 2007 section 42 Sentencing Amendment Act 2007
80: Resumption of community-based sentence if sentence of imprisonment quashed
1: This section applies to a community-based sentence that is suspended under section 78(2)(a)
2: The community-based sentence is suspended until the earlier of the following events:
a: it resumes under subsection (3); or
b: it is cancelled under subsection (5).
3: If the sentence or sentences of imprisonment based on which the community-based sentence was suspended are quashed and that results in the offender no longer being detained under a sentence of imprisonment,—
a: except as provided in paragraph (b), the offender must report to a probation officer as soon as practicable, and not later than 72 hours, after being released from detention; and
b: an offender who is sentenced to community detention must report within 24 hours after being released from detention, unless the 24 hours elapses on a weekend or public holiday, in which case the offender must report on the next working day; and
c: the sentence resumes when the offender has reported as required by paragraphs (a) or (b).
4: The Registrar of the court in which the sentence or sentences of imprisonment are quashed must notify the chief executive of the Department of Corrections.
5: If the community-based sentence never resumes under subsection (3), it is cancelled when the offender ceases to be detained under the sentence or sentences of imprisonment. Section 80(3)(a) replaced 1 October 2007 section 43 Sentencing Amendment Act 2007 Section 80(3)(b) replaced 1 October 2007 section 43 Sentencing Amendment Act 2007 Section 80(3)(c) inserted 1 October 2007 section 43 Sentencing Amendment Act 2007
2A: Home detention
Subpart 2A inserted 1 October 2007 section 44 Sentencing Amendment Act 2007
80A: Sentence of home detention
1: A court may sentence an offender to a sentence of home detention if—
a: the offender is convicted of an offence punishable by imprisonment; or
b: the offender is convicted of an offence and the enactment prescribing the offence expressly provides that a sentence of home detention may be imposed on conviction.
2: A court may sentence an offender to home detention under subsection (1) if—
a: the court is satisfied that—
i: the proposed home detention residence is suitable; and
ii: the relevant occupants (as defined in section 26A(4)
A: understand the conditions of home detention that will apply to the offender; and
B: consent to the offender serving the sentence in the residence in accordance with those conditions; and
C: have been informed that they may withdraw their consent to the offender serving the sentence in the residence at any time; and
iii: the offender has been made aware of and understands the conditions that will apply during home detention, and he or she agrees to comply with them; and
b: the proposed home detention residence is in an area in which a home detention scheme is operated by the chief executive of the Department of Corrections.
2A: Before imposing a sentence of home detention on an offender, a court must consider the pre-sentence report prepared by a probation officer in accordance with section 26A
3: A sentence of home detention may be for such period as the court thinks fit, but must not be for less than 14 days or more than 12 months.
4: The court must specify the home detention residence when sentencing the offender to a sentence of home detention.
5: An offender sentenced to home detention is not in custody while serving the sentence.
6: This section is subject to section 80B Section 80A inserted 1 October 2007 section 44 Sentencing Amendment Act 2007 Section 80A(2A) inserted 22 January 2014 section 33 Administration of Community Sentences and Orders Act 2013
80B: Concurrent and cumulative sentences of home detention
1: If a court imposes a sentence of home detention on an offender who is already subject to a sentence of home detention, the sentences must be served concurrently unless the court directs that they are to be served cumulatively.
2: If a court imposes cumulative sentences of home detention or imposes 1 or more sentences of home detention on an offender who is already serving a sentence of home detention, the total term of the sentences of home detention must not be more than 12 months.
3: Before deciding to impose 2 or more sentences of home detention cumulatively or concurrently, the court must consider the guidance under sections 84 85
4: Subject to section 57A Section 80B inserted 1 October 2007 section 44 Sentencing Amendment Act 2007
80C: Detention conditions applying to offender sentenced to home detention
1: An offender who is serving a sentence of home detention is subject to detention conditions comprising—
a: the standard conditions set out in subsection (2); and
b: any special conditions that may be imposed by the court under section 80D
2: The standard conditions for a sentence of home detention are that—
a: the offender is under the supervision of a probation officer and must co-operate with the probation officer and comply with any lawful direction given by that probation officer; and
b: the offender must not leave the home detention residence at any time except in the circumstances set out in subsections (3), (4), and (5); and
c: the offender must keep in his or her possession the order drawn up under section 80ZC constable
ca: the offender must not leave or attempt to leave New Zealand without the prior written consent of a probation officer:
cb: the offender must, if a probation officer directs, allow the collection of biometric information:
d: the offender must, when required by a probation officer, submit to the electronic monitoring of compliance with his or her detention conditions; and
da: the offender must, if required to submit to the electronic monitoring of his or her sentence, remain within the area defined by the probation officer; and
e: the offender must not engage, or continue to engage, in any employment or occupation in which a probation officer has directed the offender not to engage or continue to engage; and
f: the offender must not associate with any specified person, or with persons of any specified class, with whom a probation officer has, in writing, directed the offender not to associate; and
g: the offender must take part in a rehabilitative and reintegrative needs assessment if and when directed to do so by a probation officer.
3: An offender may leave the home detention residence only—
a: to seek urgent medical or dental treatment; or
b: to avoid or minimise a serious risk of death or injury to the offender or any other person; or
c: with the approval of a probation officer—
i: to comply with any special condition; or
ii: to seek or engage in employment; or
iii: to attend training or other rehabilitative or reintegrative activities or programmes; or
iv: to attend a restorative justice conference or other process relating to the offender's offending; or
v: to carry out any undertaking arising from any restorative justice process; or
vi: for any other purpose specifically approved by the probation officer.
4: A probation officer may approve an alternative residence under section 80H section 80F
5: In addition to absences authorised under subsection (3), a probation officer may authorise an offender, who has served at least three quarters of a sentence of home detention of 6 months or more, to be absent from the home detention residence for up to 4 hours a day without a specified purpose for any or all days remaining to be served under the sentence.
5A: A probation officer must define the area within which an offender subject to electronic monitoring is required to remain at the home detention residence and show that area to the offender and advise the relevant occupants (as defined in section 26A(4)(a)
6: For the purposes of subsection (5), an offender who is subject to 2 or more sentences of home detention is eligible when he or she has served the longer of—
a: three quarters of the longest of any concurrent sentences of home detention imposed on the offender; or
b: three quarters of the notional single sentence of home detention that is created when sentences of home detention are ordered to be served concurrently or cumulatively. Section 80C inserted 1 October 2007 section 44 Sentencing Amendment Act 2007 Section 80C(2)(c) amended 1 October 2008 section 116(a)(ii) Policing Act 2008 Section 80C(2)(ca) inserted 22 August 2017 section 63 Enhancing Identity Verification and Border Processes Legislation Act 2017 Section 80C(2)(cb) inserted 22 August 2017 section 63 Enhancing Identity Verification and Border Processes Legislation Act 2017 Section 80C(2)(da) inserted 22 January 2014 section 34(1) Administration of Community Sentences and Orders Act 2013 Section 80C(5A) inserted 22 January 2014 section 34(2) Administration of Community Sentences and Orders Act 2013
80D: Special conditions of sentence of home detention
1: In addition to the standard conditions that apply under section 80C
2: A court may impose any of the special conditions described in subsection (4) if the court is satisfied that—
a: there is a significant risk of further offending by the offender; and
b: standard conditions alone would not adequately reduce the risk; and
c: the imposition of special conditions would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
3: A court may only impose a condition of the kind described in subsection (4)(d) (which relates to judicial monitoring) if it is also satisfied that, because of the special circumstances of the offender, this is necessary to assist the offender's compliance with the sentence.
4: The special conditions referred to in subsection (1) or (2) are—
a: any conditions that the court thinks fit relating to the offender's finances or earnings:
b: conditions requiring the offender to take prescription medication:
c: conditions relating to a programme:
ca: conditions prohibiting the offender from doing 1 or more of the following:
i: using (as defined in section 4(1)
ii: using a psychoactive substance:
iii: consuming alcohol:
d: a condition requiring the offender to comply with the requirements of judicial monitoring under subpart 2B
e: any other conditions that the court thinks fit to reduce the likelihood of further offending by the offender.
5: For the purposes of subsection (4), programme section 54H
6: No court may impose a condition under this section that—
a: the offender pay any fine, reparation, or other sum ordered to be paid on conviction; or
b: the offender perform any service that he or she could have been required to perform if he or she had been sentenced to community work.
7: No offender may be made subject to a special condition that requires the offender to take prescription medication unless the offender—
a: has been fully advised, by a person who is qualified to prescribe that medication, about the nature and likely or intended effect of the medication and any known risks; and
b: consents to taking the prescription medication.
8: An offender does not breach his or her detention conditions for the purposes of section 80S section 80F Section 80D inserted 1 October 2007 section 44 Sentencing Amendment Act 2007 Section 80D(4)(ca) inserted 15 May 2017 section 10 Sentencing (Drug and Alcohol Testing) Amendment Act 2016
80E: Electronic monitoring
1: The purpose of an electronic monitoring condition imposed as a condition under section 80C(2)(d)
2: Information about an offender that is obtained through electronic monitoring may be used both for the purposes referred to in subsection (1) and for the following purposes:
a: to verify compliance with any detention conditions:
b: to detect non-compliance with any detention conditions and the commission of offences:
c: to provide evidence of non-compliance with detention conditions and the commission of offences:
d: to verify that the offender has not tampered or otherwise interfered with the ability of the electronic monitoring equipment to operate effectively and accurately. Section 80E inserted 1 October 2007 section 44 Sentencing Amendment Act 2007 Section 80E(1) amended 22 December 2016 section 8 Sentencing (Electronic Monitoring of Offenders) Amendment Act 2016
80F: Application for variation or cancellation of sentence of home detention
1: An offender who is subject to a sentence of home detention, or a probation officer, may apply for an order under subsection (4) on the grounds that—
a: the offender is unable to comply, or has failed to comply, with any detention conditions:
b: any programme to which the offender is subject is no longer available or suitable for the offender:
c: the home detention residence is no longer available or suitable because of a change in circumstances:
d: having regard to any changes in circumstances since the sentence was imposed and to the manner in which the offender has responded to the sentence,—
i: the rehabilitation and reintegration of the offender would be advanced by the remission, suspension, or variation of any special conditions, or the imposition of additional special conditions; or
ii: the continuation of the sentence is no longer necessary in the interests of the community or the offender.
2: A probation officer may apply for an order under subsection (4) if an offender, who is subject to a sentence of home detention, is convicted of an offence punishable by imprisonment.
3: If an offender is subject to special detention conditions in relation to 2 or more sentences of home detention at the same time, a probation officer must apply for an order under subsection (4)(a) if he or she is satisfied that—
a: any of the special conditions are incompatible with each other; or
b: in light of all the conditions to which the offender is subject under the sentences, it is unreasonable to expect the offender to comply with 1 or more of the special conditions.
4: On an application under subsection (1), (2), or (3), the court may, if it is satisfied that the grounds on which the application is based have been established,—
a: remit, suspend, or vary any special conditions imposed by the court, or impose additional special conditions; or
b: vary the home detention residence; or
c: cancel the sentence; or
d: cancel the sentence and substitute any other sentence (including another sentence of home detention) that could have been imposed on the offender at the time that the offender was convicted of the offence for which the sentence was imposed.
4A: When an application is made under this section
a: issue to a constable a warrant for the offender's arrest:
b: bail the offender or remand the offender in custody if the application cannot be determined immediately.
5: An application under subsection (1), (2), or (3) may be made at any time before or after the sentence commences.
6: Section 72 Section 80F inserted 1 October 2007 section 44 Sentencing Amendment Act 2007 Section 80F(4A) inserted 22 January 2014 section 35 Administration of Community Sentences and Orders Act 2013 Section 80F(4A) amended 17 December 2016 section 97 Statutes Amendment Act 2016
80FA: Chief executive of Department of Corrections may vary offender's home detention
residence
1: The chief executive of the Department of Corrections may vary an offender's home detention residence
a: the home detention residence
b: an alternative residence
c: every relevant occupant (as defined in section 26A(4)(a) residence residence
d: the alternative residence
e: the offender has given written consent to the change in residence
2: A probation officer may, subject to subsection (3), approve a provisional home detention residence
3: If the chief executive does not vary a home detention residence residence
a: the probation officer must approve another provisional home detention residence
b: the probation officer must apply to the court for an order under section 80F(4) residence
4: If the chief executive does not vary a home detention residence residence
a: the probation officer must apply to the court for an order under section 80F(4)
b: the offender must, unless the probation officer directs otherwise, remain at the provisional home detention residence Section 80FA inserted 22 January 2014 section 36 Administration of Community Sentences and Orders Act 2013 Section 80FA heading amended 17 December 2016 section 98(1) Statutes Amendment Act 2016 Section 80FA(1) amended 17 December 2016 section 98(2) Statutes Amendment Act 2016 Section 80FA(1)(a) amended 17 December 2016 section 98(2) Statutes Amendment Act 2016 Section 80FA(1)(b) amended 17 December 2016 section 98(2) Statutes Amendment Act 2016 Section 80FA(1)(c) amended 17 December 2016 section 98(2) Statutes Amendment Act 2016 Section 80FA(1)(d) amended 17 December 2016 section 98(2) Statutes Amendment Act 2016 Section 80FA(1)(e) amended 17 December 2016 section 98(2) Statutes Amendment Act 2016 Section 80FA(2) amended 17 December 2016 section 98(2) Statutes Amendment Act 2016 Section 80FA(3) amended 17 December 2016 section 98(2) Statutes Amendment Act 2016 Section 80FA(3)(a) amended 17 December 2016 section 98(2) Statutes Amendment Act 2016 Section 80FA(3)(b) amended 17 December 2016 section 98(2) Statutes Amendment Act 2016 Section 80FA(4) amended 17 December 2016 section 98(2) Statutes Amendment Act 2016 Section 80FA(4)(b) amended 17 December 2016 section 98(2) Statutes Amendment Act 2016
80G: Matters relating to orders under section 80F
1: If the court cancels a sentence of home detention under section 80F(4)(d)
2: When determining a substitute sentence under section 80F(4)(d)
3: If the court varies a special condition or imposes a new special condition under section 80F(4)(a) section 80D
4: If the court cancels the sentence, the sentence expires on the date that the order is made or on any other date that the court may specify.
5: If an application is made under section 80F Section 80G inserted 1 October 2007 section 44 Sentencing Amendment Act 2007
80H: Alternative residence pending determination of application under section 80F
Section 80H repealed 22 January 2014 section 37 Administration of Community Sentences and Orders Act 2013
80I: Leave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases
1: This section applies if—
a: a court has sentenced an offender to a short-term sentence of imprisonment; and
b: at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.
2: At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date. Section 80I inserted 1 October 2007 section 44 Sentencing Amendment Act 2007
80J: Appeal against order granting leave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention
1: This section applies for the purposes of filing and determining any appeal against an order granting leave, or a refusal of the court to grant leave, under section 80I 80K(7)
2: For the purposes of Part 6 section 80I 80K(7) Section 80J inserted 1 October 2007 section 44 Sentencing Amendment Act 2007 Section 80J(2) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011
80K: Application for cancellation of sentence of imprisonment and substitution of sentence of home detention
1: An offender who is subject to a short-term sentence of imprisonment and who has leave to apply for cancellation of a sentence of imprisonment and substitution of a sentence of home detention under section 80I
2: An application must be served as soon as practicable on the chief executive of the Department of Corrections.
3: An application must be accompanied by a pre-sentence report updated in accordance with section 80L
4: On application under subsection (1), the court may, if satisfied of the matters in section 80A(2)
5: A sentence of home detention substituted under subsection (4) may be for any period the court thinks fit, but must not be less than 14 days or more than 12 months.
6: When substituting a sentence of home detention, the court must take into account the portion of the original sentence that remains unserved at the time of the order.
7: If the court does not substitute a sentence of home detention, the court—
a: must reconsider the issue of leave to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention; and
b: may make a further order granting the offender leave to apply to the court at any time for cancellation of the sentence of imprisonment and substitution of a sentence of home detention.
8: A sentence of imprisonment that is cancelled under this section is a custodial sentence for the purposes of any other enactment. Section 80K inserted 1 October 2007 section 44 Sentencing Amendment Act 2007
80L: Updated pre-sentence report
1: An offender subject to a sentence of imprisonment who makes an application for substitution of a sentence of home detention under section 80K
2: If an offender agrees to a probation officer updating the offender's pre-sentence report under subsection (1), the probation officer must update the report in accordance with section 26A Section 80L inserted 1 October 2007 section 44 Sentencing Amendment Act 2007
80M: Appeals in respect of substituted sentences
1: This section applies if a court orders—
a: cancellation of a sentence of home detention and substitution of another sentence under section 80F
b: cancellation of a sentence of imprisonment and substitution of a sentence of home detention under section 80K
2: For the purposes of any appeal or application for leave to appeal against the substituted sentence, a sentence substituted for a sentence imposed on the conviction of the offender on a charge is deemed to be a sentence imposed on the conviction of the offender on that charge. Section 80M inserted 1 October 2007 section 44 Sentencing Amendment Act 2007 Section 80M(2) replaced 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011
80MA: Registrar must notify controlling officer and offender of resumption of sentence
If the outcome of an offender's appeal against a sentence of home detention is unsuccessful and the offender has been granted bail under section 53 or 54
a: notify the controlling officer (within the meaning of section 27
b: notify the offender of that date if he or she is not present in court at the time the appeal is disposed of. Section 80MA inserted 23 October 2013 section 38 Administration of Community Sentences and Orders Act 2013 Section 80MA amended 14 November 2018 section 99(1) Courts Matters Act 2018
80N: Imposition of post-detention conditions on offender
1: A court that sentences an offender to a term of home detention of 6 months or less may impose the standard post-detention conditions and any special post-detention conditions on the offender and, if it does so, must specify when the conditions expire.
2: If a court sentences an offender to a term of home detention of more than 6 months,—
a: the standard post-detention conditions apply to the offender for a period of 12 months from the detention end date, unless the court specifies a different period sections 80Q 80R 80U 80ZG
b: the court may, at the same time, impose any special post-detention conditions on the offender and, if it does so, must specify when the conditions expire.
3: The court may specify that post-detention conditions imposed under this section expire on a date that is a specified period of at least 6 months, but no more than 12 months, from the detention end date.
4: If the court imposes special post-detention conditions on the offender, the special post-detention conditions may apply for as long as, but not longer than, the standard post-detention conditions that apply to the offender.
5: If the court sentences the offender to more than 1 sentence of home detention on the same occasion,—
a: only 1 order under this section may be made; and
b: that order applies in respect of all the sentences of home detention imposed on that occasion.
6: If the court imposes a home detention sentence cumulatively on an existing sentence, or imposes a concurrent sentence of home detention, any post-detention conditions imposed with the first home detention sentence commence only after both sentences have been completed. Section 80N inserted 1 October 2007 section 44 Sentencing Amendment Act 2007 Section 80N(2)(a) amended 17 December 2016 section 99 Statutes Amendment Act 2016 Section 80N(2)(a) amended 22 January 2014 section 39(1) Administration of Community Sentences and Orders Act 2013 Section 80N(6) inserted 22 January 2014 section 39(2) Administration of Community Sentences and Orders Act 2013
80O: Standard post-detention conditions
The standard post-detention conditions of a sentence of home detention are the following:
a: the offender must report to a probation officer as and when required to do so by a probation officer and must notify the probation officer of his or her residential address and the nature and place of his or her employment when asked to do so:
b: the offender must not move to a new residential address in another probation area without the prior written consent of the probation officer:
c: if consent is given under paragraph (b), the offender must report in person to a probation officer in the new probation area in which the offender is to reside as soon as practicable, and not later than 72 hours, after the offender's arrival in the new area:
d: if an offender intends to change his or her residential address within a probation area, the offender must give the probation officer reasonable notice before moving from his or her residential address (unless notification is impossible in the circumstances) and must advise the probation officer of the new address:
e: the offender must not reside at any address at which a probation officer has directed the offender not to reside:
ea: the offender must not leave or attempt to leave New Zealand without the prior written consent of a probation officer:
eb: the offender must, if a probation officer directs, allow the collection of biometric information:
f: the offender must not engage, or continue to engage, in any employment or occupation in which the probation officer has directed the offender not to engage or continue to engage:
g: the offender must not associate with any specified person, or with persons of any specified class, with whom the probation officer has, in writing, directed the offender not to associate:
h: the offender must take part in a rehabilitative and reintegrative needs assessment if and when directed to do so by a probation officer. Section 80O inserted 1 October 2007 section 44 Sentencing Amendment Act 2007 Section 80O(ea) inserted 22 August 2017 section 64 Enhancing Identity Verification and Border Processes Legislation Act 2017 Section 80O(eb) inserted 22 August 2017 section 64 Enhancing Identity Verification and Border Processes Legislation Act 2017
80P: Special post-detention conditions
1: A court may impose any of the special post-detention conditions described in subsection (2) if the court is satisfied that—
a: there is a significant risk of further offending by the offender; and
b: standard conditions alone would not adequately reduce that risk; and
c: the imposition of special conditions would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
2: The special post-detention conditions are the following—
a: any conditions that the court thinks fit relating to the offender's place of residence (which may include a condition that the offender not move residence), finances, or earnings:
b: conditions requiring the offender to take prescription medication:
ba: conditions prohibiting the offender from doing 1 or more of the following:
i: using (as defined in section 4(1)
ii: using a psychoactive substance:
iii: consuming alcohol:
c: conditions relating to a programme:
d: any other conditions that the court thinks fit to reduce the likelihood of further offending by the offender.
3: For the purposes of subsection (2), programme section 54H
4: No court may impose a special post-detention condition that the offender submit to electronic monitoring.
4A: However, subsection (4) does not prevent the court from imposing a drug or alcohol condition, which would mean that the offender may be required, under section 80ZO(2)(b)
5: No offender may be made subject to a special post-detention condition that requires the offender to take prescription medication unless the offender—
a: has been fully advised, by a person who is qualified to prescribe that medication, about the nature and likely or intended effect of the medication and any known risks; and
b: consents to taking the prescription medication. Section 80P inserted 1 October 2007 section 44 Sentencing Amendment Act 2007 Section 80P(2)(ba) inserted 15 May 2017 section 11(1) Sentencing (Drug and Alcohol Testing) Amendment Act 2016 Section 80P(4A) inserted 15 May 2017 section 11(2) Sentencing (Drug and Alcohol Testing) Amendment Act 2016
80Q: Review of post-detention conditions if conditions incompatible
1: This section applies if—
a: an offender is, at the same time, subject to post-detention conditions imposed under 2 or more orders made under section 80N
b: a probation officer is satisfied that—
i: any special condition to which the offender is subject under any of the orders is incompatible with any other special condition to which the offender is subject under any other of the orders; or
ii: in light of all the conditions to which the offender is subject under the orders, it is unreasonable to expect the offender to comply with 1 or more of the special conditions.
2: The probation officer must apply for a review of the conditions to which the offender is subject under the orders made under section 80N
3: Section 80R Section 80Q inserted 1 October 2007 section 44 Sentencing Amendment Act 2007
80R: Variation or discharge of post-detention conditions
1: An offender who is subject to post-detention conditions imposed under section 80N
2: Section 72
3: On an application under subsection (1), the court may, if it thinks fit,—
a: suspend or vary any condition, or impose any additional conditions described in section 80N
b: discharge a condition and substitute any other condition described in section 80N
4: If the court varies a special condition or imposes an additional special condition under subsection (3), section 80P
5: If an application is made under this section for the suspension, variation, or discharge of any condition, a probation officer may suspend the condition until the application has been heard and disposed of. Section 80R inserted 1 October 2007 section 44 Sentencing Amendment Act 2007
80S: Offence to breach detention conditions
An offender commits an offence, and is liable on
a: breaches, without reasonable excuse, any detention conditions of a sentence of home detention; or
b: fails to return to a home detention residence when required to do so under section 80ZG(6)(b)
c: fails to report when required to do so under section 80ZGC(3)(a) 80ZGD(2) Section 80S inserted 1 October 2007 section 44 Sentencing Amendment Act 2007 Section 80S amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011 Section 80S(b) replaced 22 January 2014 section 40 Administration of Community Sentences and Orders Act 2013 Section 80S(c) inserted 22 January 2014 section 40 Administration of Community Sentences and Orders Act 2013
80SA: Offences related to sentences of home detention with drug or alcohol conditions
An offender who is subject to a sentence of home detention with a drug or alcohol condition commits an offence, and is liable on conviction to imprisonment for a term not exceeding 1 year or to a fine not exceeding $2,000, if the offender—
a: refuses or fails, without reasonable excuse,—
i: to undergo a testing procedure when required to do so under sections 80ZO(2)(a) 80ZQ
ii: to submit to continuous monitoring when required to do so under section 80ZO(2)(b)
iii: to comply with instructions specified in a notice given under section 80ZO(2)(b)
iv: to accompany an authorised person, when required to do so under section 80ZQ(4)
v: to contact a specified automated system when required to do so under section 80ZO(2)(c)
vi: to report, at any time or times when required to do so under section 80ZQ(5)
vii: to undergo a testing procedure when required to do so under sections 80ZO(2)(c) 80ZQ
b: does anything with the intention of diluting or contaminating a bodily sample required under section 80ZO(2)(a) or (c)
c: tampers with a drug or alcohol monitoring device required under section 80ZO(2)(b) Section 80SA inserted 15 May 2017 section 12 Sentencing (Drug and Alcohol Testing) Amendment Act 2016
80T: Offence to refuse entry to home detention residence
1: Every person commits an offence, and is liable on
2: Every person commits an offence, and is liable on
3: For the purposes of subsection (2), an authorised person
a: is a probation officer and has identified himself or herself; or
b: accompanies a person described in paragraph (a); or
c: is authorised in writing by a probation officer and has produced that written authority to an occupant of the residence. Section 80T inserted 1 October 2007 section 44 Sentencing Amendment Act 2007 Section 80T(1) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011 Section 80T(2) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011
80U: Offence to breach post-detention conditions
1: An offender commits an offence, and is liable on section 80N 80R
2: In the case of a condition of the kind referred to in section 80P(2)(b) Section 80U inserted 1 October 2007 section 44 Sentencing Amendment Act 2007 Section 80U(1) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011
80UA: Offences related to post-detention conditions that are drug or alcohol conditions
An offender who is subject to a post-detention condition that is a drug or alcohol condition commits an offence, and is liable on conviction to imprisonment for a term not exceeding 6 months or to a fine not exceeding $1,500, if the offender—
a: refuses or fails, without reasonable excuse,—
i: to undergo a testing procedure when required to do so under sections 80ZO(2)(a) 80ZQ
ii: to submit to continuous monitoring when required to do so under section 80ZO(2)(b)
iii: to comply with instructions specified in a notice given under section 80ZO(2)(b)
iv: to accompany an authorised person, when required to do so under section 80ZQ(4)
v: to contact a specified automated system when required to do so under section 80ZO(2)(c)
vi: to report, at any time or times when required to do so under section 80ZQ(5)
vii: to undergo a testing procedure when required to do so under sections 80ZO(2)(c) 80ZQ
b: does anything with the intention of diluting or contaminating a bodily sample required under section 80ZO(2)(a) or (c)
c: tampers with a drug or alcohol monitoring device required under section 80ZO(2)(b) Section 80UA inserted 15 May 2017 section 13 Sentencing (Drug and Alcohol Testing) Amendment Act 2016
80V: Arrest without warrant for breach of detention or post-detention conditions
Any constable constable Section 80V inserted 1 October 2007 section 44 Sentencing Amendment Act 2007 Section 80V amended 1 October 2008 section 116(a)(ii) Policing Act 2008
80W: Court may defer start date of sentence of home detention
1: The court may defer the start date of a sentence of home detention for a specified period of up to 2 months—
a: on humanitarian grounds; or
b: if the court is satisfied that it is in the interests of justice to defer the start of the sentence of home detention.
2: If a sentence of home detention is deferred in accordance with subsection (1), the sentence of home detention starts on the date to which the court has ordered that the sentence be deferred.
3: Despite subsection (1), no court may defer the start date of a sentence of home detention if—
a: the sentence of home detention is imposed cumulatively on any other sentence of home detention; or
b: the sentence of home detention is imposed in substitution for a sentence of home detention or imprisonment that has been quashed or set aside; or
c: an order under this section has already been made in respect of the sentence; or
d: the offender has already commenced serving the sentence or is detained under any other sentence or order. Section 80W inserted 1 October 2007 section 44 Sentencing Amendment Act 2007
80X: Commencement of sentence of home detention
1: A sentence of home detention commences on the day it is imposed unless the start date of the sentence is deferred under section 20A(2)(b) 80W
2: Subsection (1) applies—
a: subject to the remainder of this section; and
b: regardless of whether or not the sentence is imposed in substitution for another sentence.
3: If a sentence of home detention is imposed cumulatively on another sentence of home detention imposed at the same time,—
a: at least 1 of the sentences must commence on the day that the sentence is imposed or to which the start date has been deferred under section 20A(2)(b) 80W
b: the commencement date for the subsequent sentence is the detention end date of the first sentence.
4: If a sentence of home detention is imposed cumulatively on another sentence of home detention (the first sentence
5: If a sentence of home detention is imposed cumulatively on another sentence of home detention (the first sentence
a: the commencement date for the subsequent sentence is the date on which the subsequent sentence was imposed; and
b: any time served under the quashed sentence must be treated as having been served under the subsequent sentence.
6: If a sentence of home detention is imposed cumulatively on another sentence of home detention (the first sentence
a: the commencement date for the subsequent sentence is the date on which the first sentence was cancelled; and
b: any time served under the cancelled sentence must not be treated as having been served under the subsequent sentence. Section 80X inserted 1 October 2007 section 44 Sentencing Amendment Act 2007 Section 80X(1) amended 22 January 2014 section 41(1) Administration of Community Sentences and Orders Act 2013 Section 80X(3)(a) amended 22 January 2014 section 41(2) Administration of Community Sentences and Orders Act 2013
80Y: Commencement of sentence of home detention after temporary surrender under Extradition Act 1999
1: This section applies if an offender is temporarily surrendered to New Zealand under the Extradition Act 1999
a: is convicted and sentenced under this Act to a sentence of home detention; and
b: is required to be returned in accordance with section 66(2)
2: Unless the court otherwise directs, the sentence imposed does not commence until the offender has reported to a probation officer after being returned to New Zealand.
3: An offender to whom this section applies must—
a: advise a probation officer as soon as possible of any change in circumstances affecting the availability or suitability of the home detention residence before he or she commences the sentence; and
b: report to a probation officer within 72 hours of the offender's arrival in New Zealand.
4: This section applies despite any other provisions in this Act. Section 80Y inserted 1 October 2007 section 44 Sentencing Amendment Act 2007
80Z: When home detention ends
1: An offender ceases to be subject to a sentence of home detention when—
a: the offender reaches his or her detention end date; or
b: a court cancels the sentence of home detention.
2: If the offender's detention end date falls on a non-release day, the offender ceases to be subject to detention conditions on the nearest preceding day that is not a non-release day. Section 80Z inserted 1 October 2007 section 44 Sentencing Amendment Act 2007
80ZA: When detention conditions suspended
The detention conditions of an offender serving a sentence of home detention are suspended during any period that the offender spends in custody under a court order (for example, on remand), but time continues to run during any period that they are suspended. Section 80ZA inserted 1 October 2007 section 44 Sentencing Amendment Act 2007
80ZB: Time ceases to run in certain circumstances
For the purpose of calculating how much time an offender who is subject to a sentence of home detention has served,—
a: time ceases to run on the sentence during any period between the date on which an application under section 80F(1)(a)
b: some or all of the period between those dates may be regarded by the court as time served, as the court thinks appropriate in the circumstances, after taking into account—
i: the extent (if any) to which the offender has complied with any detention conditions; and
ii: the amount of time (if any) that the offender has spent in custody. Section 80ZB replaced 22 January 2014 section 42 Administration of Community Sentences and Orders Act 2013
80ZC: Order must be drawn up
1: If a court imposes a sentence of home detention on an offender, the particulars of the sentence must be drawn up in the form of an order.
2: A copy of the order must be given to the offender before he or she leaves the court wherever practicable.
3: The order must include information regarding—
a: the nature of the sentence; and
b: the start date and the term of the sentence; and
c: the detention conditions that apply to the offender while he or she is serving the sentence; and
d: the post-detention conditions (if any) that apply and the period for which those conditions apply; and
e: the obligations to comply with the instructions of a probation officer and the terms of the sentence; and
f: the consequences of non-compliance with the terms of the sentence; and
g: the statutory provisions under which the sentence may be varied or cancelled.
4: For the purposes of subsection (1), a court may direct that the offender be detained in the custody of the court for a period, not exceeding 2 hours, that may be necessary to enable the order to be drawn up and a copy given to the offender.
5: If it is not practicable to give a copy of the order to the offender before the offender leaves the court, a copy must be given to the offender in person as soon as practicable after the offender leaves the court.
6: A copy of the order must be given to the chief executive of the Department of Corrections as soon as possible, but no later than 24 hours, after it has been drawn up. Section 80ZC inserted 1 October 2007 section 44 Sentencing Amendment Act 2007
80ZD: Offender must be given copy of new or amended order
If an offender's detention conditions or post-detention conditions are varied or discharged, the offender must be given a copy of the new or amended order that shows the conditions as varied or discharged, and the provisions of this section and section 80ZC Section 80ZD inserted 1 October 2007 section 44 Sentencing Amendment Act 2007
80ZE: Home detention does not affect entitlements under
Social Security Act 2018 The fact that a person is serving a sentence of home detention does not, of itself, affect any entitlement the person may have under the Social Security Act 2018 Section 80ZE inserted 1 October 2007 section 44 Sentencing Amendment Act 2007 Section 80ZE heading amended 26 November 2018 section 459 Social Security Act 2018 Section 80ZE amended 26 November 2018 section 459 Social Security Act 2018
80ZF: Application of
Accident Compensation Act 2001 When an offender performs any service or does any work or attends any assessment, course, or programme for the purposes of a home detention sentence, the following provisions apply:
a: if the offender suffers any personal injury for which he or she has cover under the Accident Compensation Act 2001
i: the personal injury is deemed, for the purposes of section 97
ii: the Crown is liable to pay compensation to which the offender is entitled under that section:
b: the cost of all other entitlements of the offender under that Act must be met from the Earners' Account in the case of an offender who is an earner and from the Non-Earners' Account in all other cases. Section 80ZF inserted 1 October 2007 section 44 Sentencing Amendment Act 2007 Section 80ZF heading amended 3 March 2010 section 5(1)(b) Accident Compensation Amendment Act 2010 Section 80ZF(a) amended 3 March 2010 section 5(1)(b) Accident Compensation Amendment Act 2010
80ZG: Effect of subsequent sentence of imprisonment of not more than 12 months
1: This section applies if an offender who is subject to a sentence of home detention is subsequently sentenced to—
a: a term of imprisonment of not more than 12 months; or
b: 2 or more terms of imprisonment to be served concurrently, the total term of which is not more than 12 months; or
c: 2 or more terms of imprisonment that are cumulative, the total term of which is not more than 12 months.
2: If this section applies, the court must either—
a: order that the sentence of home detention be suspended; or
b: order that the sentence of home detention be suspended for the duration of the period in which the offender is detained under the sentence or sentences of imprisonment.
3: If the court suspends the sentence of home detention under subsection (2)(b), it may, if it thinks fit and subject to subsection (4), remit, suspend, or vary any detention or post-detention conditions of the sentence imposed by the court, or impose additional detention or post-detention conditions.
4: The court may not impose post-detention conditions on an offender under subsection (3) unless the court that sentenced the offender to home detention imposed post-detention conditions.
5: The court must not vary any existing detention or post-detention condition or impose any new detention or post-detention condition of a kind referred to in section 80D(4)(b) 80P(2)(b)
a: has been fully advised by a person who is qualified to prescribe that medication about the nature and likely or intended effect of any variation or new condition in relation to the medication and any known risks; and
b: consents to taking the prescription medication.
6: If the court suspends the sentence of home detention under subsection (2)(b),—
a: a probation officer must, before the statutory release date of the sentence of imprisonment,—
i: review the suitability of the home detention residence; and
ii: ensure every relevant occupant (as defined in section 26A(4)(a)
iii: if necessary, apply for a variation or cancellation of the sentence under section 80F section 80FA
b: the offender must go to and remain at the home detention residence after being released from detention, unless absent in accordance with section 80C(3)(a) or (b)
c: the sentence of home detention resumes when the offender has arrived at the home detention residence under paragraph (b).
7: If, for the purpose of subsection (6)(a)(iii), the probation officer makes an application for variation of the sentence under section 80F
a: the offender must go and remain at the alternative address until the application is decided; and
b: once the application is decided, subsection (6)(b) and (c) apply accordingly. Section 80ZG replaced 22 January 2014 section 43 Administration of Community Sentences and Orders Act 2013
80ZGA: Effect of subsequent sentence of imprisonment of more than 12 months
1: Subsection (2) applies if an offender who is subject to a sentence of home detention is subsequently sentenced to—
a: a term of imprisonment of more than 12 months; or
b: 2 or more terms of imprisonment to be served concurrently, the total term of which is more than 12 months; or
c: 2 or more terms of imprisonment that are cumulative, the total term of which is more than 12 months.
2: If this section applies, the sentence of home detention is suspended. Section 80ZGA inserted 22 January 2014 section 43 Administration of Community Sentences and Orders Act 2013
80ZGB: Period of suspension not counted towards sentence
No period during which a sentence of home detention is suspended under section 80ZG(2) or 80ZGA(2) is counted towards the period of home detention imposed under section 80A(3). Section 80ZGB inserted 22 January 2014 section 43 Administration of Community Sentences and Orders Act 2013
80ZGC: Resumption of sentence of home detention
1: This section applies to a sentence of home detention that is suspended under section 80ZG(2) or 80ZGA(2).
2: The sentence of home detention is suspended until the earlier of the following events:
a: it resumes under subsection (3); or
b: it resumes under section 80ZG(6)(c); or
c: it is cancelled under subsection (5).
3: If the sentence or sentences of imprisonment are quashed and that results in the offender no longer being detained under a sentence of imprisonment,—
a: the offender must report to a probation officer as soon as practicable and not later than 72 hours after being released from detention; and
b: the sentence of home detention resumes when the offender has reported as required under paragraph (a).
4: The Registrar of the court in which the sentence or sentences of imprisonment are quashed must notify the chief executive of the Department of Corrections.
5: If the sentence of home detention does not resume under section 80ZG(6)(c) or subsection (3), it is cancelled when the offender ceases to be detained under the sentence or sentences of imprisonment. Section 80ZGC inserted 22 January 2014 section 43 Administration of Community Sentences and Orders Act 2013
80ZGD: Effect of appeal on resumption of sentence of home detention
1: This section applies if—
a: an offender has, on or after the commencement of this section, lodged an appeal against—
i: a sentence of home detention imposed before or after that commencement; or
ii: the conviction on which that sentence is based; or
iii: both; and
b: the offender has been granted bail under section 53 or 54
c: the outcome of the appeal is that—
i: the appeal is dismissed; or
ii: the appeal is deemed pursuant to rules of court to be dismissed; or
iii: leave to appeal is refused; or
iv: neither the sentence of home detention nor the conviction on which it was made is set aside when the appeal is determined.
2: If this section applies,—
a: the court to which the appeal is made must specify a date on which the offender must report to a probation officer and that date must be not earlier than 10 working days after the outcome of the appeal is determined and must fall on a working day; and
b: the offender must report to a probation officer on that date; and
c: the sentence of home detention resumes when the offender has reported to the probation officer on that date.
3: If the offender has been on bail for more than 2 months, the probation officer must, before the sentence of home detention resumes,—
a: review the suitability of the home detention residence
b: ensure every relevant occupant consents, in accordance with section 26A(3)
c: if necessary, apply to the court for a variation or cancellation of the sentence under section 80F section 80FA
4: This section does not apply if the offender is detained under a sentence of imprisonment. Section 80ZGD inserted 23 October 2013 section 43 Administration of Community Sentences and Orders Act 2013 Section 80ZGD(1)(b) amended 14 November 2018 section 99(2) Courts Matters Act 2018 Section 80ZGD(3)(a) amended 17 December 2016 section 100 Statutes Amendment Act 2016
80ZH: Application of section 80F during epidemic
1: While an epidemic management notice is in force,—
a: a probation officer who has applied for an order under section 80F(4)
b: any probation officer may himself or herself vary the special conditions subject to which a sentence of home detention was imposed by the court on an offender if the offender has applied for an order under section 80F(4)
c: a probation officer may vary or suspend any standard conditions of a sentence of home detention.
2: A variation under subsection (1)(a) or (b) has effect until the application concerned has been heard and disposed of.
3: Any variation or suspension of a standard condition under subsection (1)(c) has effect until the earlier of—
a: the revocation of the epidemic management notice; or
b: the date a probation officer rescinds the variation or suspension. Section 80ZH inserted 1 October 2007 section 44 Sentencing Amendment Act 2007
80ZI: Application of section 80R during epidemic
1: While an epidemic management notice is in force,—
a: a probation officer who has applied for an order under section 80R(3)
b: any probation officer may himself or herself vary the post-detention conditions subject to which a sentence of home detention was imposed by the court on an offender if the offender has applied for an order under section 80R(3)
2: Any variation under subsection (1) has effect until the earlier of—
a: the revocation of the epidemic management notice; or
b: the date on which a probation officer rescinds the variation or suspension. Section 80ZI inserted 1 October 2007 section 44 Sentencing Amendment Act 2007
2B: Judicial monitoring
Subpart 2B inserted 1 October 2007 section 44 Sentencing Amendment Act 2007
80ZJ: Progress reports
1: If the court has imposed a sentence of intensive supervision or home detention and a special condition of that sentence is that the offender be subject to judicial monitoring, the probation officer supervising the offender must give a written progress report to the Judge who sentenced the offender or to any other Judge of that court if for any reason it is impracticable for the sentencing Judge to be given the report.
2: The progress report must be given to the Judge within 3 months of the date that the sentence commenced under section 75 76 80W 80X 80Y
3: The progress report—
a: must contain information on the offender's progress and compliance with the sentence; and
b: may contain any other information that the probation officer considers relevant to the sentence.
4: The probation officer must prepare and give the Judge further progress reports at specified intervals of not less than 3 months if directed to do so by the Judge. Section 80ZJ inserted 1 October 2007 section 44 Sentencing Amendment Act 2007
80ZK: Consideration of progress reports
After considering a progress report, the Judge may order that the offender attend before him or her if the Judge considers it desirable for the administration of the sentence or for the rehabilitation or reintegration of the offender. Section 80ZK inserted 1 October 2007 section 44 Sentencing Amendment Act 2007
80ZL: Procedure
1: A copy of an order under section 80ZK
2: The order must be accompanied by a notice setting out the time and place of the attendance. Section 80ZL inserted 1 October 2007 section 44 Sentencing Amendment Act 2007
80ZM: Procedure if possible grounds for variation or cancellation of sentence exist
1: If, after hearing from the offender and the probation officer, the Judge considers that there may be grounds for variation or cancellation of the sentence of intensive supervision or home detention, he or she may request submissions on whether the sentence should be varied or cancelled.
2: If the Judge requests further submissions under subsection (1), he or she must set the matter down for a hearing.
3: After hearing submissions on whether the sentence should be varied or cancelled at the hearing, the Judge may vary or cancel the sentence of intensive supervision or home detention in accordance with section 54K 80F Section 80ZM inserted 1 October 2007 section 44 Sentencing Amendment Act 2007
2BA: Biometric information
Subpart 2BA inserted 22 August 2017 section 65 Enhancing Identity Verification and Border Processes Legislation Act 2017
80ZMA: Purpose of collecting biometric information
1: Biometric information collected under section 49(1)(fa) 54F(1)(gb) 59A 69E(1)(db) 80C(2)(cb) 80O(eb)
a: to manage offenders to ensure public safety; and
b: to identify offenders before they leave New Zealand; and
c: to enforce the conditions specified in sections 54F(1)(ga) 69E(1)(da) 80C(2)(ca) 80O(ea)
2: Biometric information may be used only for the purpose referred to in subsection (1). Section 80ZMA inserted 22 August 2017 section 65 Enhancing Identity Verification and Border Processes Legislation Act 2017
2C: Drug or alcohol conditions
Subpart 2C inserted 15 May 2017 section 14 Sentencing (Drug and Alcohol Testing) Amendment Act 2016
80ZN: Imposition, and effect, of drug or alcohol condition
1: This section applies if a court imposes a drug or alcohol condition on an offender under section 52(2)(bb) 54I(3)(ba) 80D(4)(ca) 80N(1) and (2)(b) 93(1) or (2)(b)
2: The court cannot direct, indicate, or require that the offender undergo or submit to drug or alcohol testing or continuous monitoring, but the condition requires the offender to comply with all requirements arising from an authorised person giving the offender notice under section 80ZO(2)
3: The court must advise the offender that the offender must do any 1 or more of the following things if required to do so by notice given by an authorised person under section 80ZO(2)
a: undergo testing for a controlled drug, a psychoactive substance, or alcohol:
b: submit to continuous monitoring of the offender's compliance with the drug or alcohol condition through a drug or alcohol monitoring device connected to the offender’s body:
c: contact an automated system, and undergo testing for a controlled drug, a psychoactive substance, or alcohol if required by a response notice given by the automated system. Section 80ZN inserted 15 May 2017 section 14 Sentencing (Drug and Alcohol Testing) Amendment Act 2016
80ZO: Offender with drug or alcohol condition may be required to undergo testing or submit to continuous monitoring
1: This section applies to an offender who is—
a: subject to a sentence of supervision, intensive supervision, or home detention with a drug or alcohol condition; or
b: subject to a post-detention condition or a post-imprisonment condition that is a drug or alcohol condition.
2: An authorised person may, by notice given to an offender to whom this section applies, require the offender to do any 1 or more of the following:
a: undergo testing for a controlled drug, a psychoactive substance, or alcohol using a testing procedure prescribed in rules made under section 80ZT(1)(a)
b: submit, during a reasonable period specified in the notice, to continuous monitoring of the offender's compliance with the drug or alcohol condition through a drug or alcohol monitoring device of a type prescribed in rules made under section 80ZT(1)(d)
c: contact, in 1 or more specified reasonably practicable ways, during 1 or more specified periods on specified days, a specified automated system and, if required by a response notice given by the automated system, undergo testing for a controlled drug, a psychoactive substance, or alcohol, using a specified testing procedure prescribed in rules made under section 80ZT(1)(a)
3: An authorised person exercising that person’s discretion under subsection (2)—
a: must comply with any rules made under section 80ZT
b: may—
i: select an offender to do what is specified in subsection (2)(a), (b), or (c) in any manner (including randomly); and
ii: make a determination in respect of the offender with or without evidence that the offender has breached the condition; and
c: must, if requiring the offender to do what is specified in subsection (2)(a) or (c), determine the prescribed testing procedure to be used for the testing required under subsection (2)(a), or required if the offender is selected to undergo testing by an automated system that the offender is required to contact under subsection (2)(c).
4: A notice given to an offender under subsection (2)(b) may include a requirement that the offender comply with instructions specified in the notice that are reasonably necessary for the effective administration of the continuous monitoring (for example, an instruction to charge the monitoring device regularly or protect it from events, such as submersion in water, that may damage it or interfere with its functioning).
5: An automated system specified in a notice given under subsection (2)(c) must include an automated selection method that determines, in any manner consistent with rules made under section 80ZT(1)(b)
6: Only a medical practitioner or medical officer may collect a blood sample from an offender under this section.
7: In this section and in sections 70AA 70B 80SA 80UA 80ZP to 80ZR 96A authorised person
a: a constable; or
b: an employee of the Department of Corrections authorised by the chief executive of that department to require offenders to undergo testing or monitoring. Section 80ZO inserted 15 May 2017 section 14 Sentencing (Drug and Alcohol Testing) Amendment Act 2016
80ZP: How notice of requirement to undergo testing or to submit to continuous monitoring may be given
1: An authorised person may give an offender a notice under section 80ZO(2)
a: by giving the notice personally and in writing to the offender:
b: by giving the notice personally and orally to the offender, then, unless the notice requires the offender only to undergo breath screening, as soon as practicable recording it in writing and giving a copy to the offender:
c: if the notice is given under section 80ZO(2)(a) section 209
2: An automated system must, in response to an offender contacting it as required by a notice given under section 80ZO(2)(c)
3: A notice given by an authorised person under subsection (1)(c) or a response notice that is given under subsection (2) and that requires an offender to undergo testing must specify the name and location of a testing facility to which the offender is required to report to undergo testing, and the time or times when the offender is required to report, under section 80ZQ Section 80ZP inserted 15 May 2017 section 14 Sentencing (Drug and Alcohol Testing) Amendment Act 2016
80ZQ: Where prescribed testing procedure may be carried out
1: An authorised person may require an offender to whom section 80ZO
2: Subsection (1) applies even if the place where the offender is given notice personally by the authorised person is—
a: a public place (as defined in section 2(1)
b: a place that is wholly or partly outside a dwelling house, or any other building, at the offender’s residential address.
3: However, an offender cannot be required to undergo a prescribed testing procedure in a place specified in subsection (2)(a) or (b) if the testing procedure involves the collection of blood or urine.
4: An offender given notice personally (in writing or orally) by the authorised person may be required by the authorised person, if subsection (3) applies or if it is not reasonably practicable to require the offender to undergo testing at the place where the offender is given notice, to accompany the authorised person to any other place where it is likely that it will be reasonably practicable for the offender to undergo testing.
5: An offender given a notice under section 80ZP(1)(c) or (2) Section 80ZQ inserted 15 May 2017 section 14 Sentencing (Drug and Alcohol Testing) Amendment Act 2016
80ZR: Information obtained from drug and alcohol testing or monitoring
1: Information obtained from a prescribed testing procedure or a drug or alcohol monitoring device required under section 80ZO(2)
a: may be used for all or any of the following purposes:
i: verifying compliance by the offender with a drug or alcohol condition:
ii: detecting non-compliance by an offender with a drug or alcohol condition, and providing evidence of that non-compliance:
iii: verifying that the offender has not tampered or otherwise interfered with a drug or alcohol monitoring device:
iv: any purpose for which the offender has requested to use the information or consented to its use; and
b: must not, except at the request or with the consent of the offender, be used—
i: as evidence that the offender committed an offence, other than an offence against any of sections 70 to 70B 80S 80SA 80U 80UA 96 96A
ii: for any other purpose not listed in paragraph (a).
2: A court may, in the absence of evidence that is available to the court and that is to the contrary effect, presume that any information that an authorised person has certified in writing was obtained from a prescribed testing procedure or a drug or alcohol monitoring device—
a: is accurate; and
b: was obtained in the manner required by sections 80ZO to 80ZQ Section 80ZR inserted 15 May 2017 section 14 Sentencing (Drug and Alcohol Testing) Amendment Act 2016
80ZS: Offence to refuse authorised person entry to offender’s residential address
1: This section applies to an offender who is—
a: subject to a sentence of supervision, intensive supervision, or home detention with a drug or alcohol condition, or subject to a post-detention condition or post-imprisonment condition that is a drug or alcohol condition; and
b: required, under section 80ZO(2)(b)
2: The offender commits an offence if the offender refuses or fails, without reasonable excuse, to allow an authorised person to enter the offender’s residential address for all or any of the following purposes:
a: attaching a drug or alcohol monitoring device to, or removing the device from, the offender:
b: servicing or inspecting the device:
c: installing, removing, servicing, or inspecting any equipment necessary for the operation of the device.
3: An offender who commits an offence against this section is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $5,000.
4: In subsection (2), authorised person
a: an authorised person (as defined in section 80ZO(7)
b: a person accompanying a person described in paragraph (a):
c: a person who—
i: has produced evidence of that person’s identity to the offender; and
ii: is authorised in writing by an authorised person (as defined in section 80ZO(7)
A: attaching a drug or alcohol monitoring device to, or removing the device from, the offender:
B: servicing or inspecting the device:
C: installing, removing, servicing, or inspecting any equipment necessary for the operation of the device; and
iii: has produced that written authority to the offender. Section 80ZS inserted 15 May 2017 section 14 Sentencing (Drug and Alcohol Testing) Amendment Act 2016
80ZT: Rules about drug and alcohol testing and monitoring
1: The chief executive may
a: prescribing, for the purposes of section 80ZO(2)(a) and (c)
b: specifying how often each of the prescribed testing procedures may be carried out:
c: prohibiting authorised persons from requiring an offender to undergo certain testing procedures if other less intrusive testing procedures are available and are sufficient in the circumstances:
d: prescribing, for the purposes of section 80ZO(2)(b)
e: specifying restrictions as to how often, and for how long—
i: continuous monitoring may be carried out:
ii: an offender may be required to contact an automated system:
f: prescribing, for any 1 or more of the following, minimum levels that must be present in a bodily sample collected from an offender in order for the sample to be used as evidence that the offender has breached a drug or alcohol condition:
i: controlled drugs:
ii: psychoactive substances:
iii: alcohol.
2: In this section and in sections 80ZU 80ZV chief executive
3: Rules under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must: LA19 ss 73 74(1)(a) cl 14 •	publish it in the Gazette •	make it available on an Internet site that is maintained by or on behalf of the Department of Corrections and that is, so far as practicable, publicly available free of charge •	make it available for public inspection free of charge •	make it available for purchase at a reasonable price Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 80ZT inserted 15 May 2017 section 14 Sentencing (Drug and Alcohol Testing) Amendment Act 2016 Section 80ZT(1) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 80ZT(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
80ZU: Further provisions concerning rules about drug and alcohol testing and monitoring
1: Rules made under section 80ZT(1)(a)
a: include, as part of the procedure, either or both of the following:
i: breath screening:
ii: the collection and analysis of a bodily sample:
b: require an offender to be supervised by a person of the same sex as the offender during the collection of a bodily sample required for testing:
c: provide for an offender to elect, if the offender meets in advance all actual and reasonable costs, to have part of a bodily sample (or 1 bodily sample from a set of samples collected at the same time) independently tested in a manner prescribed in the rules.
2: The chief executive may make rules under section 80ZT(1)
a: prescribe testing procedures that are no more intrusive than is reasonably necessary to ensure compliance with a drug or alcohol condition; and
b: allow for offenders to be tested no more often than is reasonably necessary to ensure compliance with a drug or alcohol condition; and
c: ensure that offenders liable to testing and monitoring are afforded as much privacy and dignity as is reasonably practicable.
3: Subsection (1)(b) overrides subsection (2)(c). Section 80ZU inserted 15 May 2017 section 14 Sentencing (Drug and Alcohol Testing) Amendment Act 2016
80ZV: Availability of rules about drug and alcohol testing and monitoring, and status under Legislation Act 2012
Section 80ZV repealed 28 October 2021 section 3 Secondary Legislation Act 2021
3: Imprisonment
81: Length of sentence of imprisonment
If under any enactment an offender is liable to imprisonment for life or for any specified term, the court may, in accordance with this Act, impose imprisonment for the maximum term provided for the particular offence or any lesser term, unless a minimum term of imprisonment is expressly provided for. 1985 No 120 s 72
81B: Procedure if offender convicted in District Court and court believes offender could be sentenced to life imprisonment
1: This section applies if a person is convicted by the District Court
2: The court must transfer the offender to the High Court for sentence and make an entry in the permanent court record Section 81B inserted 1 July 2013 section 5 Sentencing Amendment Act (No 2) 2011 Section 81B(1) amended 1 March 2017 section 261 District Court Act 2016 Section 81B(2) amended 1 July 2013 section 4 Sentencing Amendment Act 2013
82: Pre-sentence detention must not be taken into account in determining length of sentence
In determining the length of any sentence of imprisonment to be imposed, the court must not take into account any part of the period during which the offender was on pre-sentence detention as defined in section 91 1985 No 120 s 81(2)
83: Cumulative and concurrent sentences of imprisonment
1: A determinate sentence of imprisonment may be imposed cumulatively on any other determinate sentence of imprisonment that the court directs, whether then imposed or to which the offender is already subject, including any sentence in respect of which a direction of that kind is or has been given.
2: Despite subsection (1), a court may not impose a sentence of imprisonment cumulatively on another sentence of imprisonment if, at the time of sentencing, the offender is subject to a sentence of imprisonment but, having commenced serving the sentence, is no longer detained under it.
3: For the purposes of subsection (2), a person who is detained under an interim recall order under the Parole Act 2002
4: An indeterminate sentence of imprisonment must not be imposed cumulatively on any other sentence.
5: Any sentence of imprisonment may be imposed concurrently with any other sentence of imprisonment.
6: For the purpose of this section, a term of imprisonment imposed on an offender (whether by committal, sentence, or order) in respect of the non-payment of a sum of money, contempt of court, or disobedience of a court order is deemed to be a determinate sentence of imprisonment. 1985 No 120 s 73 Section 83(2) replaced 7 July 2004 section 6 Sentencing Amendment Act 2004
84: Guidance on use of cumulative and concurrent sentences of imprisonment
1: Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.
2: Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.
3: In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—
a: the time at which they occurred; or
b: the overall nature of the offending; or
c: any other relationship between the offences that the court considers relevant.
85: Court to consider totality of offending
1: Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.
2: If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
3: If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.
4: If only concurrent sentences are to be imposed,—
a: the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and
b: each of the lesser offences must receive the penalty appropriate to that offence. Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment
86: Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment
1: If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.
2: The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1)
a: holding the offender accountable for the harm done to the victim and the community by the offending:
b: denouncing the conduct in which the offender was involved:
c: deterring the offender or other persons from committing the same or a similar offence:
d: protecting the community from the offender.
3:
4: A minimum period of imprisonment imposed under this section must not exceed the lesser of—
a: two-thirds of the full term of the sentence; or
b: 10 years.
5: For the purposes of Part 6 Section 86(2) replaced 7 July 2004 section 7 Sentencing Amendment Act 2004 Section 86(3) repealed 7 July 2004 section 7 Sentencing Amendment Act 2004 Section 86(5) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011 Additional consequences for repeated serious violent offending Heading repealed 16 August 2022 section 5 Three Strikes Legislation Repeal Act 2022
86A: Interpretation
Section 86A repealed 16 August 2022 section 5 Three Strikes Legislation Repeal Act 2022
86B: Stage-1 offence: offender given first warning
Section 86B repealed 16 August 2022 section 5 Three Strikes Legislation Repeal Act 2022
86C: Stage-2 offence other than murder: offender given final warning and must serve full term of imprisonment
The commencement of s 46 of the Sentencing Amendment Act 2007 Sentencing Act 2002 Subsection (6) of this section expires and repeals on the commencement of s 46 of the Sentencing Amendment Act 2007 (see section 6(2) of the Sentencing and Parole Reform Act 2010 (2010 No 33); there's a note in the 2007 Act). (CB) Section 86C repealed 16 August 2022 section 5 Three Strikes Legislation Repeal Act 2022
86D: Stage-3 offences other than murder: offender sentenced to maximum term of imprisonment
Section 86D repealed 16 August 2022 section 5 Three Strikes Legislation Repeal Act 2022
86E: When murder is a stage-2 or stage-3 offence
Section 86E repealed 16 August 2022 section 5 Three Strikes Legislation Repeal Act 2022
86F: Continuing effect of warnings
Section 86F repealed 16 August 2022 section 5 Three Strikes Legislation Repeal Act 2022
86G: Consequences of cancellation of record on later sentences
The commencement of s 46 of the Sentencing Amendment Act 2007 Sentencing Act 2002 Subsection (4)(b) of this section expires and repeals on the commencement of s 46 of the Sentencing Amendment Act 2007 (see section 6(2) of the Sentencing and Parole Reform Act 2010 (2010 No 33); there's a note in the 2007 Act). (CB) Section 86G repealed 16 August 2022 section 5 Three Strikes Legislation Repeal Act 2022
86H: Appeal against orders relating to imprisonment
Section 86H repealed 16 August 2022 section 5 Three Strikes Legislation Repeal Act 2022
86I: Sections 86B to 86E prevail over inconsistent provisions
Section 86I repealed 16 August 2022 section 5 Three Strikes Legislation Repeal Act 2022 Preventive detention
87: Sentence of preventive detention
1: The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members.
2: This section applies if—
a: a person is convicted of a qualifying sexual or violent offence (as that term is defined in subsection (5)); and
b: the person was 18 years of age or over at the time of committing the offence; and
c: the court is satisfied that the person is likely to commit another qualifying sexual or violent offence if the person is released at the sentence expiry date (as specified in subpart 3
3: The High Court may, on the application of the prosecutor or on its own motion, impose a sentence of preventive detention on the offender.
4: When considering whether to impose a sentence of preventive detention, the court must take into account—
a: any pattern of serious offending disclosed by the offender's history; and
b: the seriousness of the harm to the community caused by the offending; and
c: information indicating a tendency to commit serious offences in future; and
d: the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and
e: the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
5: In this section and in sections 88 90 qualifying sexual or violent offence
a: a sexual crime under Part 7 section 144A section 144C
b: an offence against any of sections 171 173 to 176 188 189(1) 191 198 to 199 208 to 210 234 235 236 Section 87(5)(b) amended 7 July 2004 section 8 Sentencing Amendment Act 2004
88: Offender must be notified that sentence of preventive detention will be considered, and reports must be obtained
1: A sentence of preventive detention must not be imposed unless—
a: the offender has been notified that a sentence of preventive detention will be considered, and has been given sufficient time to prepare submissions on the sentence; and
b: the court has considered reports from at least 2 appropriate health assessors about the likelihood of the offender committing a further qualifying sexual or violent offence.
2: Despite anything in section 38(1) and (5)
a: the court may, for the purposes of obtaining the report referred to in subsection (1)(b), exercise all or any of the powers conferred by section 38(2)
b: section 38(4) sections 40 to 46
3: To avoid doubt, a health assessor's report under subsection (1)(b) may take into account any statement of the offender or any other person concerning any conduct of the offender, whether or not that conduct constitutes an offence and whether or not the offender has been charged with, or convicted of, an offence in respect of that conduct. Section 88(2) amended 1 September 2004 section 51 Criminal Procedure (Mentally Impaired Persons) Act 2003 Section 88(2)(a) amended 1 September 2004 section 51 Criminal Procedure (Mentally Impaired Persons) Act 2003 Section 88(2)(b) amended 1 September 2004 section 51 Criminal Procedure (Mentally Impaired Persons) Act 2003 Section 88(3) inserted 1 October 2007 section 47 Sentencing Amendment Act 2007
89: Imposition of minimum period of imprisonment
1: If a court sentences an offender to preventive detention, it must also order that the offender serve a minimum period of imprisonment, which in no case may be less than 5 years.
2: The minimum period of imprisonment imposed under this section must be the longer of—
a: the minimum period of imprisonment required to reflect the gravity of the offence; or
b: the minimum period of imprisonment required for the purposes of the safety of the community in the light of the offender's age and the risk posed by the offender to that safety at the time of sentencing.
2A:
3: For the purposes of Part 6 Section 89(2A) repealed 16 August 2022 section 6 Three Strikes Legislation Repeal Act 2022 Section 89(3) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011
90: Procedure if offender convicted in District Court and court believes offender could be sentenced to preventive detention
1: This section applies if a person is convicted by the District Court
2: The court must transfer the offender to the High Court for sentence and make an entry in the permanent court record to the effect that the court has declined jurisdiction on the ground that it has reason to believe that the offender should be considered for a sentence of preventive detention. Section 90(1) amended 1 March 2017 section 261 District Court Act 2016 Section 90(2) replaced 1 July 2013 section 5 Sentencing Amendment Act 2013 Warrant of commitment for sentence of imprisonment
91: Warrant of commitment for sentence of imprisonment
1: If a court imposes a sentence of imprisonment, a warrant must be issued stating briefly the particulars of the offence and directing the detention of the offender in accordance with the sentence.
2: A warrant issued under this section must include a statement as to whether the offender was or was not legally represented as contemplated by section 30(1)
3: If the offender was not legally represented, the warrant must state the way in which the requirements of that section have been satisfied.
4:
5:
6: If the sentence is imposed by the District Court
7: If the sentence is imposed by the High Court, any Judge of that court may sign the warrant.
8: If the sentence is imposed by the Court of Appeal, any Judge of that court may sign the warrant.
8A: If the sentence is imposed by the Supreme Court, any Judge of that court may sign the warrant.
9: A warrant under this section may be issued in respect of any number of sentences imposed in respect of the same offender at the same sitting of the court. 1985 No 120 s 143 Section 91(4) repealed 1 October 2007 section 48 Sentencing Amendment Act 2007 Section 91(5) repealed 1 October 2007 section 48 Sentencing Amendment Act 2007 Section 91(6) amended 1 March 2017 section 261 District Court Act 2016 Section 91(8A) inserted 1 January 2004 section 48(1) Supreme Court Act 2003 Interpretation provision relating to references to offender being sentenced to imprisonment for particular period
92: References to period of imprisonment for purposes of section 93
1: For the purposes of section 93
a: in a case where the offender was not already subject to a sentence or sentences of imprisonment, it sentences the offender to 1 sentence of imprisonment, the term of which is equal to that period; or
b: in a case where the offender was not already subject to a sentence or sentences of imprisonment, it sentences the offender to 2 or more sentences of imprisonment, the total term of which is equal to that period; or
c: in a case where the offender was already subject to a sentence or sentences of imprisonment, it sentences the offender to 1 or more sentences of imprisonment the total term of which, including the existing sentences of imprisonment, is equal to that period.
2: For the purposes of this section, the total term of 2 or more sentences of imprisonment is a term beginning with the commencement date of the first of the sentences to commence and ending with the sentence expiry date (as specified in subpart 3 Conditions on release of offender sentenced to imprisonment for short term
93: Imposition of conditions on release of offender sentenced to imprisonment for short term
1: A court that sentences an offender to a term of imprisonment of 12 months or less may impose the standard conditions and any special conditions on the offender and, if it does so, must specify when the conditions expire.
2: If a court sentences an offender to a term of imprisonment of more than 12 months but not more than 24 months,—
a: the standard conditions apply to the offender until the sentence expiry date, unless the court specifies a different date sections 94 95 96
b: the court may at the same time impose any special conditions on the offender and, if it does so, must specify when the conditions expire.
2A: The court may specify that conditions imposed under this section expire on—
a: the sentence expiry date; or
b: the date that is a specified period before the sentence expiry date; or
c: the date that is a specified period of up to 6 months after the sentence expiry date.
2AB: If the court imposes special conditions on an offender, the special conditions may apply for as long as, but no longer than, the standard conditions apply to the offender.
2B: In this section,— sentence expiry date section 4 special conditions section 15(3) standard conditions section 14(1)
3: A special condition must not be imposed unless it is designed to—
a: reduce the risk of reoffending by the offender; or
b: facilitate or promote the rehabilitation and reintegration of the offender; or
c: provide for the reasonable concerns of victims of the offender.
3A: The court must not impose an electronic monitoring condition described in section 15(3)(f) section 26
4: No offender may be made subject to a special condition that requires the offender to take prescription medication unless the offender—
a: has been fully advised, by a person who is qualified to prescribe that medication, about the nature and likely or intended effect of the medication and any known risks; and
b: consents to taking the prescription medication.
5: If a court sentences an offender to a term of imprisonment of more than 24 months, it must not impose conditions on the offender's release from imprisonment (and section 18(2)
6: A court must not impose conditions on an offender's release from imprisonment if—
a: the court sentences an offender to an indeterminate sentence of imprisonment; or
b: the court sentences an offender to imprisonment who is already subject to an indeterminate sentence of imprisonment.
7:
8: If the court sentences the offender to more than 1 term of imprisonment on the same occasion,—
a: only 1 order under this section may be made; and
b: that order applies in respect of all the sentences of imprisonment imposed on that occasion. Section 93(1) replaced 7 July 2004 section 9(1) Sentencing Amendment Act 2004 Section 93(2) replaced 7 July 2004 section 9(1) Sentencing Amendment Act 2004 Section 93(2)(a) amended 17 December 2016 section 101 Statutes Amendment Act 2016 Section 93(2A) inserted 7 July 2004 section 9(1) Sentencing Amendment Act 2004 Section 93(2AB) inserted 22 January 2014 section 45(2) Administration of Community Sentences and Orders Act 2013 Section 93(2B) inserted 7 July 2004 section 9(1) Sentencing Amendment Act 2004 Section 93(2B) special conditions replaced 22 December 2016 section 9(1) Sentencing (Electronic Monitoring of Offenders) Amendment Act 2016 Section 93(3A) inserted 22 December 2016 section 9(2) Sentencing (Electronic Monitoring of Offenders) Amendment Act 2016 Section 93(7) repealed 7 July 2004 section 9(2) Sentencing Amendment Act 2004
94: Variation of release conditions
1: An offender who is subject to conditions imposed under section 93
2: Section 72
3: On an application under subsection (1), the court may, if it thinks fit,—
a: suspend any condition or vary the duration of any condition, or impose additional conditions; or
b: discharge a condition and substitute any other condition described in section 93
4: The court must not vary any existing condition, or impose any new condition, of a kind referred to in section 93(4)
a: has been fully advised, by a person who is qualified to prescribe that medication, about the nature and likely or intended effect of any variation or new condition in relation to the medication and any known risks; and
b: consents to taking the prescription medication.
5: If an application is made under this section for the suspension, variation, or discharge of any condition, a probation officer may suspend the condition until the application has been heard and disposed of.
95: Review of conditions if conditions incompatible
1: This section applies if—
a: an offender is, at the same time, subject to conditions imposed under 2 or more orders made under section 93
b: a probation officer is satisfied that—
i: any condition to which the offender is subject under any of the orders is incompatible with any other condition to which the offender is subject under any other of the orders; or
ii: in light of all the conditions to which the offender is subject under the orders, it is unreasonable to expect the offender to comply with any 1 or more of the conditions.
2: The probation officer must apply for a review of the conditions to which the offender is subject under the orders made under section 93
3: Section 94
96: Offence to breach conditions
1: Every offender commits an offence, and is liable on section 93 section 94
2: In the case of a condition of a kind referred to in section 93(4) Section 96(1) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011
96A: Offences related to post-imprisonment conditions that are drug or alcohol conditions
An offender who is subject to a post-imprisonment condition that is a drug or alcohol condition commits an offence, and is liable on conviction to imprisonment for a term not exceeding 1 year or to a fine not exceeding $2,000, if the offender—
a: refuses or fails, without reasonable excuse,—
i: to undergo a testing procedure when required to do so under sections 80ZO(2)(a) 80ZQ
ii: to submit to continuous monitoring when required to do so under section 80ZO(2)(b)
iii: to comply with instructions specified in a notice given under section 80ZO(2)(b)
iv: to accompany an authorised person, when required to do so under section 80ZQ(4)
v: to contact a specified automated system when required to do so under section 80ZO(2)(c)
vi: to report, at any time or times when required to do so under section 80ZQ(5)
vii: to undergo a testing procedure when required to do so under sections 80ZO(2)(c) 80ZQ
b: does anything with the intention of diluting or contaminating a bodily sample required under section 80ZO(2)(a) or (c)
c: tampers with a drug or alcohol monitoring device required under section 80ZO(2)(b) Section 96A inserted 15 May 2017 section 16 Sentencing (Drug and Alcohol Testing) Amendment Act 2016 Home detention Heading repealed 1 October 2007 section 50 Sentencing Amendment Act 2007
97: Court must consider granting offender leave to apply for home detention in certain cases
Section 97 repealed 1 October 2007 section 50 Sentencing Amendment Act 2007
98: Appeal against order granting or declining leave to apply for home detention
Section 98 repealed 1 October 2007 section 50 Sentencing Amendment Act 2007
99: Effect of subsequent conviction on home detention
Section 99 repealed 1 October 2007 section 50 Sentencing Amendment Act 2007 Provisions about start date of sentence of imprisonment
100: Court may defer start date of sentence of imprisonment
1: The court may defer the start date of a sentence of imprisonment for a specified period of up to 2 months on humanitarian grounds.
2:
3: The sentence of imprisonment starts on the date specified in section 78
3A: The Bail Act 2000
4: Despite subsection (1), no court may defer the start date of a sentence of imprisonment if—
a: the sentence of imprisonment is imposed cumulatively on any other sentence of imprisonment; or
b: the sentence of imprisonment is imposed in substitution for a sentence of imprisonment that has been quashed or set aside ; or
c: an order under this section has already been made in respect of the sentence; or
d: the offender has already commenced serving the sentence or is detained under any other sentence or order.
5: For the purpose of this section, a term of imprisonment imposed on an offender (whether by committal, sentence, or order) in respect of the non-payment of a sum of money, contempt of court, or disobedience of a court order is deemed to be a determinate sentence of imprisonment. 1985 No 120 s 78(2) Section 100(2) repealed 1 October 2007 section 51 Sentencing Amendment Act 2007 Section 100(3A) inserted 7 July 2004 section 11(2) Sentencing Amendment Act 2004 Section 100(4)(b) amended 7 July 2004 section 11(3) Sentencing Amendment Act 2004 Section 100(4)(c) inserted 7 July 2004 section 11(3) Sentencing Amendment Act 2004 Section 100(4)(d) inserted 7 July 2004 section 11(3) Sentencing Amendment Act 2004
101: Start date of sentence of imprisonment
1: Except as provided in section 100 section 76
2: For the purpose of this section, a term of imprisonment imposed on an offender (whether by committal, sentence, or order) in respect of the non-payment of a sum of money, contempt of court, or disobedience of a court order is deemed to be a determinate sentence of imprisonment.
4: Sentencing for murder
Presumption in relation to sentence for murder
102: Presumption in favour of life imprisonment for murder
1: An offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.
2: If a court does not impose a sentence of imprisonment for life on an offender convicted of murder, it must give written reasons for not doing so.
3: Section 102(3) repealed 16 August 2022 section 7 Three Strikes Legislation Repeal Act 2022 Imposition of minimum period of imprisonment or imprisonment without parole Heading amended 1 June 2010 section 9 Sentencing and Parole Reform Act 2010
103: Imposition of minimum period of imprisonment
or imprisonment without parole
1: If a court sentences an offender convicted of murder to imprisonment for life, it must—
a: order that the offender serve a minimum period of imprisonment under that sentence; or
b: if subsection (2A) applies, make an order under that subsection.
2: The minimum term of imprisonment ordered may not be less than 10 years, and must be the minimum term of imprisonment that the court considers necessary to satisfy all or any of the following purposes:
a: holding the offender accountable for the harm done to the victim and the community by the offending:
b: denouncing the conduct in which the offender was involved:
c: deterring the offender or other persons from committing the same or a similar offence:
d: protecting the community from the offender.
2A: If the court that sentences an offender convicted of murder to imprisonment for life is satisfied that no minimum term of imprisonment would be sufficient to satisfy 1 or more of the purposes stated in subsection (2), the court may order that the offender serve the sentence without parole.
2B: The court may not make an order under subsection (2A) unless the offender was 18 years of age or over at the time that the offender committed the murder.
3:
4:
5:
6:
7: Subsection (2) section 104 Section 103 heading amended 1 June 2010 section 10(1) Sentencing and Parole Reform Act 2010 Section 103(1) replaced 16 August 2022 section 8 Three Strikes Legislation Repeal Act 2022 Section 103(2) replaced 7 July 2004 section 12 Sentencing Amendment Act 2004 Section 103(2A) inserted 1 June 2010 section 10(3) Sentencing and Parole Reform Act 2010 Section 103(2B) inserted 1 June 2010 section 10(3) Sentencing and Parole Reform Act 2010 Section 103(3) repealed 7 July 2004 section 12 Sentencing Amendment Act 2004 Section 103(4) repealed 7 July 2004 section 12 Sentencing Amendment Act 2004 Section 103(5) repealed 7 July 2004 section 12 Sentencing Amendment Act 2004 Section 103(6) repealed 7 July 2004 section 12 Sentencing Amendment Act 2004 Section 103(7) amended 1 June 2010 section 10(4) Sentencing and Parole Reform Act 2010
104: Imposition of minimum period of imprisonment of 17 years or more
1: The court must make an order under section 103
a: if the murder was committed in an attempt to avoid the detection, prosecution, or conviction of any person for any offence or in any other way to attempt to subvert the course of justice; or
b: if the murder involved calculated or lengthy planning, including making an arrangement under which money or anything of value passes (or is intended to pass) from one person to another; or
c: if the murder involved the unlawful entry into, or unlawful presence in, a dwelling place; or
d: if the murder was committed in the course of another serious offence; or
e: if the murder was committed with a high level of brutality, cruelty, depravity, or callousness; or
ea: if the murder was committed as part of a terrorist act (as defined in section 5(1)
f: if the deceased was a constable
g: if the deceased was particularly vulnerable because of his or her age, health, or because of any other factor; or
h: if the offender has been convicted of 2 or more counts of murder, whether or not arising from the same circumstances; or
i: in any other exceptional circumstances.
2: This section does not apply to an offender in respect of whom an order under section 103(2A) Section 104(1)(ea) inserted 31 October 2003 section 4 Sentencing Amendment Act 2003 Section 104(1)(f) amended 1 October 2008 section 116(a)(ii) Policing Act 2008 Section 104(2) inserted 1 June 2010 section 11 Sentencing and Parole Reform Act 2010 Section 104(2) amended 16 August 2022 section 9 Three Strikes Legislation Repeal Act 2022
105: Appeal against imposition of minimum period of imprisonment
For the purposes of Part 6 section 103 Section 105 amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011
4A: Offender levy and victims' services bank account
Subpart 4A inserted 1 July 2010 section 7 Sentencing (Offender Levy) Amendment Act 2009
105A: Interpretation
For the purposes of this subpart, unless the context otherwise requires,— account section 105G approved agency section 105J Secretary Section 105A inserted 1 July 2010 section 7 Sentencing (Offender Levy) Amendment Act 2009
105B: Offender to pay levy
1: This section applies to an offender who has been convicted of an offence.
2: On being sentenced or otherwise dealt with by a court in relation to 1 or more offences, the offender must pay a levy.
3: The levy is not a sentence and is in addition to any sentence. Section 105B inserted 1 July 2010 section 7 Sentencing (Offender Levy) Amendment Act 2009
105C: Priority of payments received from offender
Section 105C repealed 13 February 2012 section 11 Sentencing Amendment Act 2011
105D: Amount of levy
The amount of the levy payable under section 105B section 147 Section 105D inserted 1 July 2010 section 7 Sentencing (Offender Levy) Amendment Act 2009
105E: Payment of levy
An offender must pay the levy to the Secretary, who must pay the levy into the account. Section 105E inserted 1 July 2010 section 7 Sentencing (Offender Levy) Amendment Act 2009
105F: Distribution of money in account
The Secretary may, from time to time, pay to an approved agency any amount of money from money that is held in the account. Section 105F inserted 1 July 2010 section 7 Sentencing (Offender Levy) Amendment Act 2009
105G: Victims' services bank account
The Secretary must, for the purposes of this subpart, establish through the Treasury a separate Crown bank account to be known as the victims' services bank account. Section 105G inserted 1 July 2010 section 7 Sentencing (Offender Levy) Amendment Act 2009
105H: Payments from, and other operation of, account
The Secretary must ensure that money is paid out of the account, and that the account is otherwise operated, only as permitted or required by this subpart or by regulations made under section 105I Section 105H inserted 1 July 2010 section 7 Sentencing (Offender Levy) Amendment Act 2009
105I: Regulations on operation of account
1: The Governor-General may, by Order in Council, make regulations for all or any of the following purposes:
a: providing for the circumstances and manner in which money may or must be paid out of the account:
b: providing for the manner in which, and the conditions subject to which, the Secretary may or must otherwise operate the account.
2: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 105I inserted 1 July 2010 section 7 Sentencing (Offender Levy) Amendment Act 2009 Section 105I(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
105J: Approval of agency
1: The Secretary may approve an organisation as an approved agency for the purposes of this subpart.
2: Before approving an organisation as an approved agency, the Secretary must be satisfied that—
a: the organisation has as one of its roles providing services to victims of crime; and
b: any amount paid to the organisation under section 105F
c: the organisation has members with the knowledge, experience, and skills to provide services to victims of crime; and
d: the organisation has in place administrative arrangements that will enable money received by the organisation to be accounted for.
3: The Secretary may at any time, by notice in writing to an organisation approved under subsection (1), revoke that approval if the Secretary is no longer satisfied of the matters set out in subsection (2) or of any other matters that the Secretary considers relevant. Section 105J inserted 1 July 2010 section 7 Sentencing (Offender Levy) Amendment Act 2009
5: Discharge and miscellaneous orders
Discharge
106: Discharge without conviction
1: If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
2: A discharge under this section is deemed to be an acquittal.
3: A court discharging an offender under this section may—
a: make an order for payment of costs or the restitution of any property; or
b: make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—
i: loss of, or damage to, property; or
ii: emotional harm; or
iii: loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:
c: make any order that the court is required to make on conviction.
3A: Sections 32 to 38A
4:
5: Despite subsection (3)(b), the court must not order the payment of compensation in respect of any consequential loss or damage described in subsection (3)(b)(iii) for which compensation has been, or is to be, paid under the Accident Compensation Act 2001
6:
7: 1985 No 120 s 19 Section 106(3A) replaced 13 February 2012 section 12(1) Sentencing Amendment Act 2011 Section 106(4) repealed 13 February 2012 section 12(2) Sentencing Amendment Act 2011 Section 106(5) replaced 6 December 2014 section 8 Sentencing Amendment Act 2014 Section 106(6) repealed 13 February 2012 section 12(2) Sentencing Amendment Act 2011 Section 106(7) repealed 13 February 2012 section 12(2) Sentencing Amendment Act 2011
107: Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
108: Conviction and discharge
1: If a person is convicted of an offence, a court before which the offender appears for sentence may, instead of imposing sentence, direct that the offender be discharged, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
2: A court discharging an offender under this section may—
a: make an order for the payment of costs or for the restitution of any property; or
b: make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—
i: loss of, or damage to, property; or
ii: emotional harm; or
iii: loss or damage consequential on any emotional or physical harm or loss of, or damage to, property; or
c: make any order that the court is required to make on conviction.
2A: Sections 32 to 38A
3:
4: Despite subsection (2)(b), the court must not order the payment of compensation in respect of any consequential loss or damage described in subsection (2)(b)(iii) for which compensation has been, or is to be, paid under the Accident Compensation Act 2001
5:
6: 1985 No 120 s 20 Section 108(2A) replaced 13 February 2012 section 13(1) Sentencing Amendment Act 2011 Section 108(3) repealed 13 February 2012 section 13(2) Sentencing Amendment Act 2011 Section 108(4) replaced 6 December 2014 section 9 Sentencing Amendment Act 2014 Section 108(5) repealed 13 February 2012 section 13(2) Sentencing Amendment Act 2011 Section 108(6) repealed 13 February 2012 section 13(2) Sentencing Amendment Act 2011
109: Guidance on conviction and discharge
The court must not convict and discharge an offender unless it is satisfied that a conviction is sufficient penalty in itself. Order to come up for sentence if called on
110: Order to come up for sentence if called on
1: If a person is convicted of an offence, a court before which the offender appears for sentence may, instead of imposing sentence, order the offender to appear for sentence if called on to do so within the period described in subsection (2).
2: The period referred to in subsection (1) is a period, not exceeding 1 year commencing with the date of conviction, that the court may specify in the order.
3: A court making an order under this section may—
a: make an order for the payment of costs or for the restitution of any property; or
b: make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—
i: loss of, or damage to, property; or
ii: emotional harm; or
iii: loss or damage consequential on any emotional or physical harm or loss of, or damage to, property.
3A: Sections 32 to 38A
4:
5: Despite subsection (3)(b), the court must not order the payment of compensation in respect of any consequential loss or damage described in subsection (3)(b)(iii) for which compensation has been, or is to be, paid under the Accident Compensation Act 2001
6:
7: 1985 No 120 s 21(1), (2) Section 110(3A) replaced 13 February 2012 section 14(1) Sentencing Amendment Act 2011 Section 110(4) repealed 13 February 2012 section 14(2) Sentencing Amendment Act 2011 Section 110(5) replaced 6 December 2014 section 10 Sentencing Amendment Act 2014 Section 110(6) repealed 13 February 2012 section 14(2) Sentencing Amendment Act 2011 Section 110(7) repealed 13 February 2012 section 14(2) Sentencing Amendment Act 2011
111: Calling offender to come up for sentence
1: This section applies if an offender in respect of whom an order is made under section 110
a: is convicted of a subsequent offence punishable by imprisonment for a term of more than 3 months; or
b: fails to comply with any other order referred to in section 110(3)
c: fails to comply with any agreement or fails to take any measure or action of a kind referred to in section 10(1)(b), (d), or (e) section 110
2: Any of the following persons may, at any time within the period specified in the order, apply to a court having jurisdiction to deal with the original offence to have the offender brought before the court to be dealt with for that offence:
a: a constable
b: a Crown Prosecutor:
c: the Solicitor-General:
d: any person designated by the chief executive of the Ministry of Justice
3: On an application under subsection (2), the court may—
a: issue a summons in the prescribed form requiring the offender to appear at the time and place appointed in the summons to show cause why he or she should not be dealt with for the original offence; or
b: if the offender fails to appear before the court in answer to the summons issued under paragraph (a), issue a warrant to arrest the offender and bring him or her before the court; or
c: issue an arrest warrant without first issuing a summons.
4: If an application is made under subsection (2), sections 167 to 170 206 385
5: If a person appears before a court under this section and the court is satisfied of any of the matters specified in subsection (1), the court—
a: must inquire into the circumstances of the original offence and the conduct of the offender since the order was made (including, where appropriate, the circumstances and gravity of the subsequent offence); and
b: may sentence or otherwise deal with the offender for the original offence. 1985 No 120 s 21(3)–(6) Section 111(2)(a) amended 1 October 2008 section 116(a)(ii) Policing Act 2008 Section 111(2)(d) amended 1 October 2003 section 14(2) State Sector Amendment Act 2003 Section 111(4) replaced 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011 Firearms prohibition orders Heading inserted 15 November 2022 section 21 Firearms Prohibition Orders Legislation Act 2022
111A: Firearms prohibition order
1: When sentencing a specified offender, the court may make a firearms prohibition order against the offender under Part 7A
2: In this section, specified offender section 39A(1) or (1A) Section 111A replaced 2 March 2025 section 11 Firearms Prohibition Orders Legislation Amendment Act 2024 Non-association orders
112: Non-association order
1: If an offender is convicted of an offence punishable by imprisonment, the court may make a non-association order in respect of the offender.
2: Before making a non-association order, the court must be satisfied that the making of the order is reasonably necessary to ensure that the offender does not commit further offences punishable by imprisonment.
3: Subject to subsection (4), a non-association order may be made in addition to, or instead of, imposing a sentence or making any other order.
4: If the court makes a non-association order, it must not at the same time impose on the offender a sentence of imprisonment, whether for the offence for which that order was made or for any other offence for which the offender has appeared for sentence.
5: The court must not make a non-association order if the offender is already detained under a sentence of imprisonment of more than 24 months imposed on an earlier occasion.
6: Section 202 1985 No 120 s 28A(1)–(3), (6) Section 112(6) amended 5 March 2012 section 393 Criminal Procedure Act 2011
113: Effect of non-association order
1: A non-association order prohibits the offender from associating with—
a: any person or persons specified in the order; or
b: any person or persons of any class specified in the order.
2: A non-association order has effect for the period, not exceeding 12 months, that the court may specify in the order. 1985 No 120 s 28A(4), (5)
114: Cumulative orders and sentences
1: A non-association order must not be cumulative on another non-association order or on a sentence of any kind imposed at the same time as the non-association order.
2: If the court imposes a non-association order on an offender who is already detained under a sentence of imprisonment of 24 months or less, the non-association order is cumulative on the other sentence. 1985 No 120 s 28B(1), (1A)
115: Order must be drawn up and copy given to offender, etc
1: If a court makes a non-association order, the particulars of non-association must be drawn up in the form of an order.
2: For the purposes of subsection (1), a court may direct that the offender be detained in the custody of the court for a period, not exceeding 2 hours, that may be necessary to enable the order to be drawn up and a copy given to the offender.
3: If it is not practicable to give a copy of the order to the offender before the offender leaves the court, a copy must be given to the offender in person as soon as practicable after the offender leaves the court.
4: A copy of the order must be given to—
a: the chief executive of the Department of Corrections; and
b: the constable 1985 No 120 s 28C Section 115(4)(b) amended 1 October 2008 section 116(a)(iv) Policing Act 2008
116: Right of appeal against non-association order
For the purposes of Part 6 1985 No 120 s 28D Section 116 amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011
117: Commencement of period of non-association
1: Except as provided in subsection (2), the period of non-association specified by a non-association order commences on the day on which the order is made.
2: If a non-association order is, under section 114(2) 1985 No 120 s 28E
118: Breach of non-association order constitutes offence
1: An offender who is subject to a non-association order commits an offence who, without reasonable excuse, associates with any person in contravention of the order.
2: A person who commits an offence against this section is liable on 1985 No 120 s 28F Section 118(2) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011
119: Effect of subsequent sentences on non-association order
If an offender who is subject to a non-association order (whether or not it is cumulative on a sentence of imprisonment and whether or not the period of non-association has commenced) is subsequently sentenced for another offence, the following provisions apply:
a: if the offender is subsequently sentenced to imprisonment for a term of more than 24 months, the non-association order is suspended:
b: if any other sentence is imposed, the court may make an order suspending the non-association order:
c: if the offender is sentenced to imprisonment for a term of 24 months or less and the court makes no order under paragraph (b),—
i: if the non-association order is cumulative on a sentence of imprisonment and the period of non-association specified by the order has not commenced, the period of non-association does not commence until the day on which the offender is released from detention after serving each sentence of imprisonment to which he or she is subject:
ii: in any other case, the period of non-association continues to run while the offender is detained and, on the offender's release, he or she continues to be subject to the non-association order for any unexpired residue of the period of non-association. 1985 No 120 s 28G(1)
120: Resumption of non-association order if sentence of imprisonment quashed
1: This section applies to a non-association order that is suspended under section 119(a) or (b)
2: The non-association order is suspended until the earlier of the following events:
a: it resumes under subsection (3); or
b: it is cancelled under subsection (5).
3: The non-association order is resumed if the sentence of imprisonment based on which the non-association order was suspended is quashed and that results in the offender no longer being detained under a sentence of imprisonment.
4: If a non-association order is resumed under subsection (3), no period during which the order was suspended is counted towards the period under section 113(2)
5: If the non-association order never resumes under subsection (3), it is cancelled when the offender ceases to be detained under the sentence of imprisonment based on which the non-association order was suspended.
121: Application for review of non-association order
1: An offender may, at any time after the expiration of half the period of non-association under a non-association order, apply to the court in accordance with section 123
2: If a non-association order is cumulative on a sentence of imprisonment, the offender may, before the period of non-association commences, apply to the court in accordance with section 123
3: A probation officer may apply to a court in accordance with section 123
a: the offender who is subject to it is convicted of an offence punishable by imprisonment; or
b: a probation officer believes on reasonable grounds that the offender has failed or is unable to comply with the order.
4: Subsection (3) does not apply if the order is cancelled under section 120
5: If an application is made under this section by a probation officer, the probation officer may suspend the order until the application has been heard and disposed of. 1985 No 120 ss 28H(1) 28I(1), (2), (6) Section 121(4) amended 7 July 2004 section 16 Sentencing Amendment Act 2004
122: Determination of application for variation or cancellation of order
1: On an application under section 121
a: any change in circumstances since the non-association order was made; and
b: if the period of non-association specified by the order has commenced, the manner in which the offender has responded to the order.
2: The court may—
a: vary the particulars of non-association; or
b: cancel the order; or
c: cancel the order and substitute any other sentence that could have been imposed on the offender at the time when the offender was convicted of the offence for which the order was made.
3: When determining any substitute sentence under subsection (2)(c), the court must take into account the portion of the non-association order that remains unserved at the time.
4: If the court cancels the order,—
a: in any case where the period of non-association specified by the order has commenced, the period of non-association expires on the date that the court may specify:
b: in any other case, the period of non-association expires on the date that the order cancelling the non-association order is made. 1985 No 120 ss 28H(2) 28I(4), (5)
123: Jurisdiction and procedure
1: Section 72 section 121
2: Before determining the application, the court may make any inquiries as to the circumstances of the case that the court considers reasonable, and may hear any evidence relevant to those circumstances.
3: If the court varies or cancels the non-association order, the Registrar must give written notice of the decision to the chief executive of the Department of Corrections and the constable 1985 No 120 ss 28H(4) 28I(7) 28J Section 123(3) amended 1 October 2008 section 116(a)(ii) Policing Act 2008 Protection orders Heading inserted 1 July 2010 section 4 Sentencing Amendment Act (No 2) 2009
123A: Interpretation of terms used in this section and sections 123B to 123H
In this section and sections 123B to 123H child section 8 family relationship section 12 family violence offence
a: against any enactment (including the Family Violence Act 2018
b: involving family violence (as defined in section 9 family violence proceedings Family Violence Act 2018 victim of the offence Section 123A replaced 1 July 2019 section 63 Family Violence (Amendments) Act 2018
123B: Protection order
1: This section applies if—
a: an offender is convicted of a family violence offence
b: there is not currently in force a protection order against the offender made under the Family Violence Act 2018
2: The court may make a protection order against the offender if—
a: it is satisfied that the making of the order is necessary for the protection of the victim of the offence; and
b: the victim of the offence does not object to the making of the order.
3: A protection order may be made under this section in addition to imposing a sentence or making any other order.
4: An order may be made under subsection (2) even though family violence proceedings
5: If an order is made under subsection (2) in the circumstances described in subsection (4), the family violence proceedings Section 123B inserted 1 July 2010 section 4 Sentencing Amendment Act (No 2) 2009 Section 123B(1)(a) amended 1 July 2019 section 64(1) Family Violence (Amendments) Act 2018 Section 123B(1)(b) amended 1 July 2019 section 64(2) Family Violence (Amendments) Act 2018 Section 123B(4) amended 1 July 2019 section 64(3) Family Violence (Amendments) Act 2018 Section 123B(5) amended 1 July 2019 section 64(4) Family Violence (Amendments) Act 2018
123C: Provisions applying to protection order made under section 123B
1: A protection order made under section 123B Family Violence Act 2018 Family Violence Act 2018
a: section 86(1)
b: sections 90 to 96
c: sections 98 to 100 section 99(1)(a)
d: section 103
e: section 104 section 97 section 104(2)
f: section 163(3)
g: section 164(1)
h: section 165(1)
i: Part 7
2: The modifications are—
a: every reference to a protection order or a final order must be read as a reference to an order made under section 123B
b: every reference to the respondent must be read as a reference to the offender:
c: every reference to the applicant or protected person must be read as a reference to the victim of the offence:
d: the court cannot impose a condition relating to the matters set out in section 103(2) Section 123C replaced 1 July 2019 section 65 Family Violence (Amendments) Act 2018
123CA: Disclosure of documents to assessor and service provider
1: This section applies to a court that makes—
a: a protection order under section 123B
b: a direction under section 188 198 section 123C(1)(i)
2: The court, when it makes the order or direction, must consider making under this section a direction requiring disclosure or sharing—
a: of specified court documents relating to the offender, every protected person for the order, or both ( see section 123CB
b: to or with relevant assessors and service providers ( see section 123CC
c: to help those assessors and service providers perform all or any of their functions under the Family Violence Act 2018 Section 123CA inserted 1 July 2019 section 65 Family Violence (Amendments) Act 2018
123CB: Court documents for section 123CA
1: For the purposes of section 123CA
a: the relevant charging document:
b: the offender’s contact details:
c: the offender’s criminal conviction history:
d: the court’s decision to make the protection order under section 123B
e: a copy of that order:
f: any current notice of bail or bail bond document.
2: For the purposes of section 123CA Section 123CB inserted 1 July 2019 section 65 Family Violence (Amendments) Act 2018
123CC: Assessors and service providers for section 123CA
For the purposes of section 123CA
a: a safety programme to a protected person (under section 187 section 123C(1)(i)
b: an assessment undertaken of the offender (under a direction made under section 188(1)(a) or (3)(a)
c: a non-violence programme to the offender (under a direction made under section 188(1)(b)
d: a prescribed standard service to the offender (under a direction made under section 188(3)(b)
e: a prescribed non-standard service to the offender (under a direction made under section 198 Section 123CC inserted 1 July 2019 section 65 Family Violence (Amendments) Act 2018
123D: Explanation of protection order
1: On making a protection order, the Judge or Registrar must explain to the offender—
a: the effect of—
i: the order; and
ii: any direction to attend a programme or engage with prescribed services made under section 188(1)(b) or (3)(b) section 123C(1)(i)
b: the consequences that may follow if the offender fails to—
i: comply with the terms of the order; or
ii: attend any session of a programme that he or she has been directed to attend or engage with any prescribed services that he or she has been directed to engage with
c: the means by which the order can be varied or discharged.
2: Failure to give the explanation required by subsection (1) does not affect the validity of the order made. Section 123D inserted 1 July 2010 section 4 Sentencing Amendment Act (No 2) 2009 Section 123D(1)(a)(ii) amended 1 July 2019 section 66(1) Family Violence (Amendments) Act 2018 Section 123D(1)(b)(ii) amended 1 July 2019 section 66(2) Family Violence (Amendments) Act 2018
123E: Protection order to be issued and served on offender
1: Where the court makes a protection order under section 123B
a: immediately issue the order; and
b: wherever practicable, serve a copy of the order on the offender before he or she leaves the court.
2: For the purpose of subsection (1), the court may direct that the offender be detained in the custody of the court for a period, not exceeding 2 hours, that may be necessary to enable the order to be issued and a copy served on the offender. Section 123E inserted 1 July 2010 section 4 Sentencing Amendment Act (No 2) 2009
123F: Protection order to be sent to Family Court
1: Immediately after the issue of a protection order in accordance with section 123E
2: On receipt of a copy of an order under subsection (1), the Registrar of the Family Court must enter the order in the records of the Family Court. Section 123F inserted 1 July 2010 section 4 Sentencing Amendment Act (No 2) 2009
123G: Protection order treated as if made by Family Court
1: This section applies to an order entered, as soon as it has been entered, in the records of the Family Court under section 123F(2)
2: The order is to be treated as if it were a final protection order made by that court under the Family Violence Act 2018 section 123H
3: The order is, accordingly, subject to the following provisions of the Family Violence Act 2018 see also section 123H(7) and (8)
a: section 107(2)
b: section 108(1)
c: section 109(1)
d: sections 111 112 113
e: section 157
f: sections 160(1)(b) 162
g: section 169
h: section 174
i: section 175
j: section 176
k: sections 177 to 181
l: Part 7 Section 123G replaced 1 July 2019 section 67 Family Violence (Amendments) Act 2018
123H: Appeal against decision to make or refuse to make protection order under section 123B is appeal against sentence
1: An appeal against a decision to make or refuse to make a protection order under section 123B subpart 4 sections 177 to 181
2: If a notice of appeal or notice of an application for leave to appeal under Part 6 section 123B
3: No protection order made under section 123B Part 6 see section 343
4: If, on an appeal under subpart 4 section 123B
5: Subsection (4) does not prevent the appeal court (whether the appeal is a first, or a further, appeal) remitting the sentence to the court that imposed it, and directing that court to take any action, under section 251(2)(c) and (3) 257(2) 259(5)(b)
6: On receipt of a copy of an order or a notice under subsection (4), the Registrar of the Family Court must enter the order or notice in the records of the Family Court.
7: This section does not prevent a protection order made under section 123B sections 108(1) 109(1) 111 112 113 section 123G(3) sections 177 to 181
8: However, a court that varies or discharges under subsection (7) a protection order made under section 123B Criminal Procedure Act 2011
a: the Family Court has been sent under this section a notice of appeal or notice of an application for leave to appeal under Part 6
b: the records of the Family Court contain no entry under this section of a notice of the withdrawal or final determination of the appeal under the Criminal Procedure Act 2011 Section 123H inserted 1 July 2019 section 67 Family Violence (Amendments) Act 2018 Disqualification from driving
124: Power of court to disqualify offenders from driving motor vehicles
1: This section applies if a person is convicted of an offence punishable by imprisonment, not being an offence against Land Transport Act 1998
2: A court may exercise the power in subsection (3) if a person is convicted of an offence referred to in subsection (1) and the court is satisfied that,—
a: the commission of the offence was facilitated by the use of a motor vehicle by the offender, whether or not the offender was the driver or person in charge; or
b: a motor vehicle was used by the offender, whether or not the offender was the driver or person in charge, for the purpose of facilitating his or her flight or avoiding his or her detection or arrest after the commission of the offence.
3: The court may order the offender to be disqualified from holding or obtaining a driver licence within the meaning of the Land Transport Act 1998 section 125
4: The court may make an order under this section in addition to, or instead of, passing any other sentence or making any other order.
5: Nothing in this section limits or affects any power of the court under any other enactment to make an order disqualifying any person from holding or obtaining a driver licence. 1985 No 120 s 83(1), (2), (6) Section 124(1) amended 10 May 2011 section 100(3) Land Transport (Road Safety and Other Matters) Amendment Act 2011
125: Period of disqualification from driving
1: The period of disqualification ordered under section 124
2: If the person is convicted of manslaughter, the court may fix any period of disqualification that it thinks fit. 1985 No 120 s 83(3)
126: Provisions of Land Transport Act 1998 apply if offender disqualified under section 124
If an offender is disqualified from holding or obtaining a driver licence by an order made under section 124 Land Transport Act 1998
a: section 82
b: section 83
c: section 84
d: section 85
e: section 86
f: section 87 Director of Land Transport
g: section 99
h: section 103
i: section 104
j: section 105
ja: section 65AC
k: section 107 1985 No 120 s 83(5) Section 126(f) amended 1 April 2021 section 175(1) Land Transport (NZTA) Legislation Amendment Act 2020 Section 126(ja) replaced 1 July 2018 section 110(1) Land Transport Amendment Act 2017 Confiscation of motor vehicles
127: Interpretation of terms used in sections 128 to 142
1: For the purposes of this section and sections 128 to 142 constable section 4 hire purchase agreement
a: an agreement under which goods are let or hired with an option to purchase, however the agreement describes the payments, under which the person who agrees to purchase the goods is given possession of them before the total amount payable has been paid:
b: an agreement for the purchase of goods by instalment payments, however the agreement describes the payments, under which the person who agrees to purchase the goods is given possession of them before the total amount payable has been paid impoundment costs Land Transport Act 1998 section 167 interest lease Land Transport Act 1998 motor vehicle section 2(1) person who is registered Land Transport Act 1998 Police employee section 4 secured party section 16 security agreement section 16 security interest section 17 written caution section 129B
2: For the purposes of sections 128 to 142
3: For the purposes of sections 128 to 142 substitute for the offender substitute
a: the person is served with a written caution, under section 129B
b: within 4 years after the date of the commission of the offence for which that written caution was served, the offender commits a further offence specified in section 128(1) 1985 No 120 s 84(1) Section 127(1) constable inserted 1 August 2012 section 15(4) Sentencing Amendment Act 2011 Section 127(1) encumbrance repealed 1 August 2012 section 15(1) Sentencing Amendment Act 2011 Section 127(1) hire purchase agreement replaced 1 August 2012 section 15(2) Sentencing Amendment Act 2011 Section 127(1) impoundment costs inserted 1 December 2009 section 5(1) Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 127(1) lease inserted 1 August 2012 section 15(3) Sentencing Amendment Act 2011 Section 127(1) leasing agreement repealed 1 August 2012 section 15(3) Sentencing Amendment Act 2011 Section 127(1) person who is registered inserted 1 December 2009 section 5(1) Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 127(1) Police employee inserted 1 August 2012 section 15(4) Sentencing Amendment Act 2011 Section 127(1) secured party inserted 1 August 2012 section 15(4) Sentencing Amendment Act 2011 Section 127(1) security agreement inserted 1 August 2012 section 15(4) Sentencing Amendment Act 2011 Section 127(1) security interest inserted 1 August 2012 section 15(4) Sentencing Amendment Act 2011 Section 127(1) written caution inserted 1 December 2009 section 5(1) Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 127(3) inserted 1 December 2009 section 5(2) Sentencing (Vehicle Confiscation) Amendment Act 2009
128: Confiscation of motor vehicle
1: This section applies if a person is convicted of any of the following offences:
a: an offence punishable by imprisonment for a term of more than 12 months, or by imprisonment for life:
b: an offence against any of the provisions of sections 35(1)(a) 36A(1)(a) or (c) 38(1) 39(1) 52(6) 52A(1)(c) 56 to 60
2: A court may exercise the power in subsection (3) if a person is convicted of an offence referred to in subsection (1) and the court by or before which the offender is convicted is satisfied—
a: that a motor vehicle—
i: was used to commit or facilitate the commission of the offence, whether or not the offender was the driver or person in charge; or
ii: in the case of an offence against any of the provisions of sections 35(1)(a) and (b) 36(1)(a) 36AA 36A(1)(a) and (c) 38(1) 39(1) 52(1)(aa) and (c) 56 to 62
iii: was used by the offender, whether or not the offender was the driver or person in charge, to facilitate the offender's flight or avoid his or her detection or arrest after the commission of the offence; and
b: that, at the time of the conviction, the offender or a substitute for the offender owns the motor vehicle or has an interest in the motor vehicle.
3: The court may order that the motor vehicle be confiscated.
3A: The court must not make an order under this section in respect of a motor vehicle that a substitute for an offender owns or has an interest in if satisfied that—
a: the substitute did not know, and could not reasonably have known, that the offender would commit the offence or offences; or
b: the substitute took all reasonable steps to prevent the offender from committing the offence or offences.
4: The court may make an order under this section in addition to, or instead of, passing any other sentence or making any other order.
5: In deciding whether to make an order under this section, the court must have regard to—
a: any undue hardship that the making of the order would cause to the offender or, as the case requires, to the substitute for the offender
b: any undue hardship that the making of the order would cause to any other person who would otherwise have the use or benefit of the motor vehicle on a regular basis:
c: the nature and extent of the offender's interest , or, as the case requires, the interest of the substitute for the offender,
d: any other considerations that the court thinks fit. 1985 No 120 s 84(2), (4) Section 128(1)(b) amended 1 March 2024 section 40 Land Transport (Road Safety) Amendment Act 2023 Section 128(1)(b) amended 11 August 2017 section 105(2) Land Transport Amendment Act 2017 Section 128(1)(b) amended 2 May 2003 section 11(1) Land Transport (Unauthorised Street and Drag Racing) Amendment Act 2003 Section 128(2) replaced 1 December 2009 section 6(2) Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 128(2)(a)(ii) amended 10 September 2012 section 100(2) Land Transport (Road Safety and Other Matters) Amendment Act 2011 Section 128(3A) inserted 1 December 2009 section 6(3) Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 128(5)(a) amended 1 December 2009 section 6(4) Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 128(5)(c) amended 1 December 2009 section 6(5) Sentencing (Vehicle Confiscation) Amendment Act 2009
129: Confiscation of motor vehicle after
subsequent
1: This section applies if,—
a: on or after 26 July 1996, a person commits an offence (the first offence sections 32(1)(a) or (b) 35(1)(a) or (b) 36(1) 36AA 36A(1)(a) or (c) 39(1) 52(6) 52A(1) 56(1) or (2) 57A(1) 57B(1) 57C(1) 58(1) 60(1) 61(1) or (2) 62(1) or section 171
b: within 4 years after the date of the commission of that offence, the person commits a subsequent offence Land Transport Act 1998
2: For the purpose of subsection (1), it does not matter whether or not the subsequent
3: If the court by or before which the offender is convicted of the subsequent
4: Despite subsection (3), the court must not make an order under that subsection if—
a: it will result in extreme hardship to the offender or undue hardship to any other person; or
b: an interlock is or is to be fitted to the motor vehicle.
4A: Despite subsection (3), if the subsequent offence is against section 52A(1)(a) or (b)
a: make a confiscation order under subsection (3); or
b: order that the vehicle be forfeited to the Crown under section 142AAB
5: For the purposes of this section, a conviction for an offence against a provision of the Transport Act 1962 1985 No 120 s 84(2A), (2AA) Section 129 heading amended 11 August 2017 section 105(3) Land Transport Amendment Act 2017 Section 129(1)(a) amended 11 March 2023 section 43(2) Land Transport (Drug Driving) Amendment Act 2022 Section 129(1)(a) amended 11 August 2017 section 105(4) Land Transport Amendment Act 2017 Section 129(1)(a) amended 10 September 2012 section 100(2) Land Transport (Road Safety and Other Matters) Amendment Act 2011 Section 129(1)(a) amended 7 July 2004 section 17(a) Sentencing Amendment Act 2004 Section 129(1)(a) amended 7 July 2004 section 17(b) Sentencing Amendment Act 2004 Section 129(1)(a) amended 7 July 2004 section 17(c) Sentencing Amendment Act 2004 Section 129(1)(a) amended 2 May 2003 section 11(1) Land Transport (Unauthorised Street and Drag Racing) Amendment Act 2003 Section 129(1)(b) amended 11 August 2017 section 105(5) Land Transport Amendment Act 2017 Section 129(2) amended 11 August 2017 section 105(6) Land Transport Amendment Act 2017 Section 129(3) amended 11 August 2017 section 105(7) Land Transport Amendment Act 2017 Section 129(4) replaced 1 July 2018 section 110(1) Land Transport Amendment Act 2017 Section 129(4A) inserted 1 March 2024 section 41 Land Transport (Road Safety) Amendment Act 2023
129A: Confiscation and destruction after third illegal street racing offence
1: This section applies if—
a: an offender commits an offence against section 36A(1)(a) or (c) current offence
b: the offender has previously been convicted of 2 offences (the previous offences section 36A(1)(a) or (c)
2: For the purpose of subsection (1), it does not matter whether or not the offences are of the same kind, but the current offence and each of the previous offences must arise from different incidents.
3: The court by or before which the offender is convicted of the current offence may order the confiscation and destruction of any motor vehicle if satisfied that the offender was driving, or was in charge of, the motor vehicle at the material time and that—
a: the offender owns or has any interest in the motor vehicle; or
b: a substitute for the offender owns or has an interest in the motor vehicle if the written caution served on the substitute was issued in respect of an offence specified in subsection (1)(a).
4: The court must not make an order under subsection (3) if it will result in extreme hardship to the offender or undue hardship to any other person, including, without limitation, to any substitute for the offender.
5: The court must not make an order under subsection (3) in respect of a motor vehicle that 1 or more persons treated as a substitute have an interest in if it is satisfied that either of the following applies to each substitute:
a: the substitute did not know, and could not reasonably have known, that the offender would commit the offence or offences; or
b: the substitute took all reasonable steps to prevent the offender from committing the offence or offences. Section 129A inserted 1 December 2009 section 7 Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 129A(5) inserted 1 August 2012 section 16 Sentencing Amendment Act 2011
129B: Written caution to persons with interest in motor vehicles involved in offences
1: Subsection (2) applies whenever—
a: a court convicts an offender of an offence specified in section 128(1)
b: the court is satisfied the offence was committed in circumstances that would permit or require the confiscation of the motor vehicle under section 128 129 129A
c: it appears to the court that the offender does not own or have an interest in the motor vehicle.
2: The court by or before which the offender is convicted must order that a written caution be issued and
3: Despite subsection (2), a written caution must not be served—
a: on anyone if the court is satisfied that the motor vehicle—
i: was stolen or converted at the material time; or
ii: was let on hire at the material time in accordance with a rental service licence under the Land Transport Act 1998
b: on a person who the court is satisfied—
i: did not own or have an interest in the motor vehicle at the material time; or
ii: is a secured party under a security agreement relating to the motor vehicle, or the lessor of the motor vehicle under a lease, but has no relationship of another kind with the offender.
4: On any one occasion, a court may only order that 1 written caution is to be served on each recipient described in subsection (2), regardless of the number of convictions entered against the offender.
5: A written caution must provide the following information:
a: the name and identifying details of the offender:
b: the relevant convictions against the offender:
c: the identifying details of the motor vehicle:
d: that the recipient is believed to own or have an interest in the motor vehicle and that none of the exceptions stated in subsection (3) has been established to the satisfaction of the court:
e: a warning that if the offender is convicted of a further offence specified in section 128(1)
f: the recipient’s right to seek a review of the court’s decision to order the service of the written caution on the recipient.
6: The written caution remains current for 4 years after the date of the commission of the offence for which that written caution is served.
7: A written caution ordered to be served on a person must be served on the person in one of the following ways:
a: by being delivered to the person personally or by being brought to the person's notice if the person refuses to accept it:
b: by being left for the person at the person's place of residence with another person (other than the offender) who appears to be of or over the age of 14 years:
c: by being left for the person at the person's place of business with another person (other than the offender).
8: A written caution may be served by one of the following persons:
aa: a constable:
a: a Police employee authorised by the Commissioner of Police to serve documents under this Act
b: an officer of the court:
c: any person who is authorised to serve the written caution under a general or particular authority given by a District Court Judge or Registrar:
d: any officer or employee of a corporation that is authorised by the Secretary for Justice to serve the written caution.
9: An endorsement on a copy of a written caution stating the fact, date, time, and mode of service Section 129B inserted 1 December 2009 section 7 Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 129B(2) amended 1 August 2012 section 17(1) Sentencing Amendment Act 2011 Section 129B(3)(b)(ii) replaced 1 August 2012 section 17(2) Sentencing Amendment Act 2011 Section 129B(7)(c) inserted 1 August 2012 section 17(3) Sentencing Amendment Act 2011 Section 129B(8)(aa) inserted 1 August 2012 section 17(4) Sentencing Amendment Act 2011 Section 129B(8)(a) amended 1 August 2012 section 17(5) Sentencing Amendment Act 2011 Section 129B(9) amended 1 August 2012 section 17(6) Sentencing Amendment Act 2011
129C: Review of written caution
1: A person served with a written caution may, within 20 working days after the date of service, apply to the court that ordered the service of the written caution for a review of the decision to serve the applicant on 1 or more of the following grounds:
a: the motor vehicle was stolen or converted at the material time:
b: the applicant did not own or have an interest in the motor vehicle at the material time:
c: the applicant is a secured party under a security agreement relating to the motor vehicle, or the lessor of the motor vehicle under a lease, but has no relationship of another kind with the offender:
d: the motor vehicle was let on hire at the material time in accordance with a rental service licence under the Land Transport Act 1998
2: Every application must include a statutory declaration that specifies a ground stated in subsection (1) and why that ground applies.
3: The Registrar must promptly forward a copy of the application to the prosecuting agency in the proceeding that resulted in the relevant conviction.
4: The prosecuting agency may, within 10 working days after the day on which the copy of the application is forwarded to the agency, make a written submission to the court.
5: The court must conduct the review on the papers, unless the court considers a hearing necessary.
6: If satisfied that a ground stated in subsection (1) applies, the following provisions apply:
a: the court must cancel the written caution served on the applicant:
b: if the ground for cancelling the applicant's written caution is that stated in subsection (1)(a) or (d), the court must also cancel the written caution served on any other person under the same order that required service of the written caution on the applicant:
c: the Registrar must advise, by ordinary post, facsimile, email, or other electronic means, every person (including the applicant) whose written caution is cancelled of that outcome:
d: if a written caution served on a person is cancelled, the written caution is deemed not to have been served on the person. Section 129C inserted 1 December 2009 section 7 Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 129C(1)(c) replaced 1 August 2012 section 18 Sentencing Amendment Act 2011
129D: Written caution of no effect if conviction quashed
1: If all of the convictions in respect of which a written caution has been served on a person are quashed, and no convictions for offences qualifying for confiscation under section 128 129 129A
2: If a written caution ceases to have effect under subsection (1), the Registrar must, by ordinary post, facsimile, email, or other electronic means, advise every person served with the written caution of that outcome. Section 129D inserted 1 December 2009 section 7 Sentencing (Vehicle Confiscation) Amendment Act 2009
129E: Appeal against confiscation by persons treated as substitutes
1: If the court orders, under section 128 129A
a: the motor vehicle was stolen or converted at the material time:
b: the appellant did not own or have an interest in the motor vehicle at the material time:
c: the appellant is a secured party under a security agreement relating to the motor vehicle, or the lessor of the motor vehicle under a lease, but has no relationship of another kind with the offender:
d: the motor vehicle was let on hire at the material time in accordance with a rental service licence under the Land Transport Act 1998
e: the appellant took all reasonable steps to prevent the offender from committing the offence or offences:
f: the appellant had not, before the commission of the offence or offences, been served with a written caution under section 129B
g: the appellant did not know, and could not reasonably have known, that the offender would commit the offence or offences:
h: confiscation of the motor vehicle is causing, or will cause, undue hardship to the appellant or any other person (other than the offender).
2: The appellant must serve the notice of appeal on—
a: the prosecuting agency in the proceeding that resulted in the relevant conviction; and
b: any other person treated as a substitute or who
3: The persons described in subsection (2) are parties to the appeal.
4: The right of appeal under subsection (1) is independent of the offender's right of appeal against conviction and sentence for the relevant offence or offences.
5: The court must set aside the confiscation of the motor vehicle if satisfied that—
a: a ground stated in subsection (1)(a), (d), or (h)
b: another ground stated in that subsection applies to the appellant and to every other person who is treated as a substitute for the offender.
6: For the purposes of subsection (1),—
a: if the order was made in the District Court High Court Rules 2016
b: if the order was made in the High Court, the appeal must be brought in the Court of Appeal in accordance with the rules of court governing civil appeals to that court. Section 129E inserted 1 December 2009 section 7 Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 129E(1)(a) replaced 1 August 2012 section 19(1) Sentencing Amendment Act 2011 Section 129E(1)(b) replaced 1 August 2012 section 19(1) Sentencing Amendment Act 2011 Section 129E(1)(c) replaced 1 August 2012 section 19(1) Sentencing Amendment Act 2011 Section 129E(1)(d) replaced 1 August 2012 section 19(1) Sentencing Amendment Act 2011 Section 129E(1)(e) replaced 1 August 2012 section 19(1) Sentencing Amendment Act 2011 Section 129E(1)(f) replaced 1 August 2012 section 19(1) Sentencing Amendment Act 2011 Section 129E(1)(g) replaced 1 August 2012 section 19(1) Sentencing Amendment Act 2011 Section 129E(1)(h) inserted 1 August 2012 section 19(1) Sentencing Amendment Act 2011 Section 129E(2)(b) amended 1 August 2012 section 19(2) Sentencing Amendment Act 2011 Section 129E(5)(a) amended 1 August 2012 section 19(3) Sentencing Amendment Act 2011 Section 129E(6)(a) amended 1 March 2017 section 261 District Court Act 2016 Section 129E(6)(a) amended 18 October 2016 section 183(c) Senior Courts Act 2016
129EA: Appeal against confiscation by third party
1: If the court orders the confiscation of a motor vehicle under section 128 129 129A
2: The appellant must serve the notice of appeal on—
a: the prosecuting agency in the proceeding that resulted in the relevant conviction; and
b: any person (other than the offender or, as the case may be, the substitute for the offender) who owns or has an interest in the vehicle.
3: The persons described in subsection (2) are parties to the appeal.
4: The right of appeal under subsection (1) is independent of the offender's right of appeal against conviction and sentence for the relevant offence or offences.
5: The court must set aside the confiscation of the motor vehicle if satisfied that the ground of appeal stated in subsection (1) applies.
6: For the purposes of subsection (1),—
a: if the order was made in the District Court High Court Rules 2016
b: if the order was made in the High Court, the appeal must be brought in the Court of Appeal in accordance with the rules of court governing civil appeals to that court. Section 129EA inserted 1 August 2012 section 20 Sentencing Amendment Act 2011 Section 129EA(6)(a) amended 1 March 2017 section 261 District Court Act 2016 Section 129EA(6)(a) amended 18 October 2016 section 183(c) Senior Courts Act 2016
129F: Warning notice to secured parties if confiscation not ordered for second illegal street racing offence
1: This section applies if—
a: an offender commits an offence against section 36A(1)(a) or (c) current offence
b: the offender has previously been convicted of an offence (the previous offence section 36A(1)(a) or (c)
c: the court by or before which the offender is convicted of the current offence is satisfied that a motor vehicle owned by the offender or by the substitute for the offender or in which the offender or the substitute has any interest was being driven by, or in the charge of, the offender at the material time; and
d: the court does not order the confiscation of the motor vehicle.
2: The Registrar must—
a: check whether a financing statement has been registered in respect of the motor vehicle on the personal property securities register kept under the Personal Property Securities Act 1999
b: issue a warning notice stating that any motor vehicle owned by the offender or by the substitute for the offender or in which the offender or the substitute has an interest is liable to be confiscated and destroyed if the offender commits another offence against section 36A(1)(a) or (c)
c: send the warning notice, by ordinary post, facsimile, email, or other electronic means to every person (other than the offender or the substitute) who the Registrar believes is a party to a security agreement or lease
3: The jurisdiction of a court to make a confiscation and destruction order under section 129A 136(4) Section 129F inserted 1 December 2009 section 7 Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 129F(2)(c) amended 1 August 2012 section 21 Sentencing Amendment Act 2011
130: Court may order declaration of ownership to be completed
1: If a court is considering whether to order the confiscation of a motor vehicle under section 128 129 129A
2: The declaration of ownership must specify—
a: whether the offender owns, or has any interest in, the motor vehicle at the date of conviction; and
b: whether any other person owns, or has any interest (including any security interest or lease
c: whether the offender has ceased to be the owner of, or to have any interest in, the motor vehicle at any time subsequent to the commission of the offence but before the date of his or her conviction; and
d: if the offender has disposed of his or her interest in the motor vehicle during the period referred to in paragraph (c), to whom the ownership or interest in the motor vehicle was disposed, the relationship of that person to the offender, and the consideration received by the offender.
3: For the purposes of having a declaration of ownership completed by the offender, the court may direct that the offender be detained in the custody of the court for a period, not exceeding 2 hours, that may be necessary to complete the declaration of ownership.
4: If a court does not make an order under this section, that does not affect the validity of any other order of the court. 1985 No 120 s 84(2B)–(2E) Section 130(1) amended 1 December 2009 section 8(1) Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 130(2)(b) amended 1 August 2012 section 22 Sentencing Amendment Act 2011 Section 130(2)(b) amended 1 December 2009 section 8(2) Sentencing (Vehicle Confiscation) Amendment Act 2009
130A: Court may disregard disposal of motor vehicle by person after written caution
1: This section applies if—
a: a person has been served with a written caution under section 129B
b: after being served with the written caution, the person purports to dispose of his or her ownership interest or other interest in the motor vehicle described in the written caution; and
c: following that disposition, the offender is convicted of a further offence specified in section 128(1)
d: it appears to the court that the offender does not own or have an interest in the motor vehicle.
2: If the circumstances of the further offence described in subsection (1)(c) would, but for that disposition, enable the court to order the confiscation of the motor vehicle under section 128 129A
a: the court may, if it thinks fit, set the disposition aside; and
b: section 128 129A
3: Before making an order under subsection (2), the court must give any person to whom the disposition of the motor vehicle was made an opportunity to be heard. Section 130A inserted 1 December 2009 section 9 Sentencing (Vehicle Confiscation) Amendment Act 2009
131: If motor vehicle has been disposed of, court may prohibit offender from acquiring another motor vehicle
1: This section applies if, in any case to which any of section 128 129 129A
2: The court may—
a: make an order prohibiting the offender from acquiring any interest in any motor vehicle within 12 months after the date of the order; and
b: if the offender or the substitute for the offender
3: If the court is not satisfied that the disposition of the motor vehicle was made by the offender or the substitute for the offender
a: the court may, if it thinks fit, set the disposition aside; and
b: section 128 129 129A
4: Before making an order under subsection (3), the court must give any person to whom the disposition of the motor vehicle was made an opportunity to be heard. 1985 No 120 s 84(3), (3A), (3B) Section 131(1) replaced 1 December 2009 section 10(1) Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 131(2)(b) amended 1 December 2009 section 10(2) Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 131(3) amended 1 December 2009 section 10(3) Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 131(3)(b) replaced 1 December 2009 section 10(4) Sentencing (Vehicle Confiscation) Amendment Act 2009
132: Enforcement of confiscation order
1: If a court makes a confiscation order under any of sections 128 129 129A
2: If the offender or the substitute for the offender
3: For the purpose of executing a warrant of confiscation issued under this section, the Registrar or bailiff or constable executing it may enter on any premises, by force if necessary, if that officer has reasonable cause to believe that the motor vehicle in respect of which the warrant is issued is on those premises.
4: If any person is in actual occupation of the premises, the Registrar or bailiff or constable must, on entering, produce the warrant to that person.
5:
6: If a motor vehicle is surrendered to or seized by any bailiff or constable under this section, that officer must, as soon as practicable, deliver it into the custody of the Registrar of the court. 1985 No 120 s 84(5)–(8), (10) Section 132(1) replaced 1 December 2009 section 11(1) Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 132(2) amended 1 December 2009 section 11(2) Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 132(5) repealed 1 August 2012 section 23 Sentencing Amendment Act 2011
132A: Offence to sell or dispose of motor vehicle subject to confiscation order
1: This section applies in any case where a motor vehicle—
a: is subject to an order under any of sections 128(3) 129(3) 129A(3) 136(4)
b: has not yet been surrendered to, or seized by, a Registrar, bailiff, or constable.
2: Every person commits an offence, and is liable on Section 132A inserted 1 December 2009 section 12 Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 132A(2) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011
133: Offence to remove confiscated vehicle
1: A person commits an offence who removes or attempts to remove any motor vehicle surrendered to or seized by any bailiff or constable under section 132
2: A person who commits an offence under this section is liable on 1985 No 120 s 84(11) Section 133(2) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011
134: Defect in warrant does not make action unlawful
1: No confiscation made under the authority of section 132
2: No person making a confiscation under the authority of section 132
3: Despite subsections (1) and (2), a person aggrieved by a defect or irregularity referred to in those subsections may recover satisfaction for the special damage by action at law. 1985 No 120 s 84(9)
135: Registrar may direct order to be enforced in another
office of
1: Despite anything in section 132
2: If the Registrar makes a direction under subsection (1), sections 132 to 134 sections 137 to 141 1985 No 120 s 84(12) Section 135 heading amended 1 March 2017 section 261 District Court Act 2016 Section 135(1) replaced 1 March 2017 section 261 District Court Act 2016
136: Offender must not acquire new interest in motor vehicle for 12 months
1: This section applies if—
a: a court makes an order for the confiscation of a motor vehicle under any of sections 128 129 129A
b: a court has made an order under section 131(2)(a)
2: The offender must not, within 12 months after the date of the order, acquire any interest in any motor vehicle.
3: A person commits an offence and is liable on
4: If a court convicts a person of an offence against this section, then instead of, or in addition to, imposing a fine, the court may order that the motor vehicle concerned be confiscated and, where this section applies because of an order under section 129A
5: If a court orders the confiscation, or the confiscation and destruction, of a motor vehicle under subsection (4), sections 129EA 130 131 to 135 sections 136A to 142 1985 No 120 s 85 Section 136(1)(a) amended 1 December 2009 section 13(1) Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 136(3) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011 Section 136(4) replaced 1 December 2009 section 13(2) Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 136(5) replaced 1 December 2009 section 13(2) Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 136(5) amended 1 August 2012 section 25 Sentencing Amendment Act 2011
136A: Registrar must apply for deregistration of motor vehicle subject to confiscation and destruction order
If, under section 129A 136(4)
a: is, for the purposes of the Land Transport Act 1998
b: must make that application before the motor vehicle is sold or disposed of. Section 136A replaced 1 August 2012 section 26 Sentencing Amendment Act 2011
137: Sale of confiscated motor vehicles
1: Subject to section 138 section 132 Registrar, subject to any direction by the court, thinks fit
2:
3: Subject to subsection (4), the proceeds of the sale must be applied in the following manner and order of priority:
a: if the motor vehicle has been impounded under the Land Transport Act 1998
b: in payment of the costs of the sale (including all costs incurred in seizing the motor vehicle, towing and storing the vehicle, and complying with the provisions of this subpart preliminary to sale):
c: if 1 or more security agreements have been brought to the notice of the Registrar before the proceeds of sale are fully applied, and have been established to the Registrar's satisfaction, in payment to each secured party of the amount to which the secured party would, but for the extinguishment of the security interest concerned, have been entitled under that agreement (and which has not already been recovered)
d: in payment of any sentence or order of reparation payable by the offender:
e: in payment of any levy payable by the offender under section 105B
f: in payment of any fine or court costs payable by the offender:
fa: in payment of any fees and accident insurance levies prescribed under section 242(2)(b)
fb: in payment of any road user charges under the Road User Charges Act 2012
g: to the offender or, as the case requires, the substitute for the offender.
3A: If any proceeds of sale are required to be applied to 2 or more security interests under subsection (3)(c), those proceeds must be applied in the order of priority determined for those security interests by Part 7 8
4: If the proceeds arise out of the sale of a motor vehicle owned by a substitute for the offender or in which the substitute had an interest, the proceeds must be applied in the manner and order of priority specified in subsection (3), except that the payment described in paragraphs (d) to (f)
5: A motor vehicle may be sold under this section even though it fails to comply in any respect with section 242
a: is, despite that Act or any other enactment, entitled to tow the motor vehicle to any appropriate place; and
b: in so towing the vehicle, is under no criminal or civil liability merely because of the failure of the vehicle to comply with that section; and
c: must comply in all respects with that Act as soon as the motor vehicle has been towed to that place.
6: If the Registrar considers that a motor vehicle is not roadworthy and that it would be uneconomic to render it roadworthy, the Registrar must, before the motor vehicle is sold under this section, apply, under the Land Transport Act 1998
7: The person to whom a motor vehicle is sold under this section obtains, by virtue of this section, good title to the motor vehicle free of all ownership interests and other proprietary interests held in the motor vehicle before that sale. 1985 No 120 s 87(1)–(3) Section 137(1) amended 1 December 2009 section 15(1) Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 137(2) repealed 18 December 2013 section 27 Auctioneers Act 2013 Section 137(3) replaced 1 December 2009 section 15(2) Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 137(3)(c) replaced 1 August 2012 section 27(2) Sentencing Amendment Act 2011 Section 137(3)(c) amended 14 November 2018 section 164 Courts Matters Act 2018 Section 137(3)(e) amended 1 August 2012 section 27(3) Sentencing Amendment Act 2011 Section 137(3)(fa) inserted 1 August 2012 section 27(4) Sentencing Amendment Act 2011 Section 137(3)(fb) inserted 1 August 2012 section 27(4) Sentencing Amendment Act 2011 Section 137(3A) inserted 1 August 2012 section 27(5) Sentencing Amendment Act 2011 Section 137(4) inserted 1 December 2009 section 15(2) Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 137(4) amended 1 August 2012 section 27(6) Sentencing Amendment Act 2011 Section 137(5) inserted 1 August 2012 section 27(7) Sentencing Amendment Act 2011 Section 137(6) inserted 1 August 2012 section 27(7) Sentencing Amendment Act 2011 Section 137(7) inserted 1 August 2012 section 27(7) Sentencing Amendment Act 2011
137A: Certain sales conditional on dismantling and destruction
1: This section applies if any motor vehicle sold under section 137 section 129A 136(4)
2: The sale of the motor vehicle is subject to a condition that the purchaser dismantle the motor vehicle for any saleable parts and destroy the remainder of the motor vehicle, to the satisfaction of the Registrar.
3: The condition imposed by subsection (2) must be fulfilled within 30 working days after the date of the sale, or within any longer period that the Registrar specifies in writing.
4: Despite section 137(7) Section 137A inserted 1 December 2009 section 16 Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 137A(4) amended 1 August 2012 section 28 Sentencing Amendment Act 2011
137B: Failure to comply with condition to dismantle and destroy
1: Where the sale of a motor vehicle is subject to a condition imposed by section 137A(2)
2: If the person in possession of the motor vehicle fails to surrender the motor vehicle at the time and place specified by the Registrar, the court may issue a warrant in the prescribed form authorising the Registrar or any bailiff or constable to recover the motor vehicle.
3: For the purpose of executing a warrant issued under subsection (2), the Registrar or bailiff or constable executing it may enter on any premises, by force if necessary, if that officer has reasonable cause to believe that the motor vehicle in respect of which the warrant is issued is on those premises.
4: If any person is in actual occupation of the premises, the Registrar or bailiff or constable must, on entering, produce the warrant to that person.
5: If a motor vehicle is surrendered to or recovered by any bailiff or constable under this section, that officer must, as soon as practicable, deliver it into the custody of the Registrar of the court.
6: Sections 133 134 Section 137B inserted 1 December 2009 section 16 Sentencing (Vehicle Confiscation) Amendment Act 2009
137C: Sale of motor vehicle surrendered or recovered under section 137B
1: As soon as practicable after a motor vehicle is delivered into a Registrar’s custody under section 137B sections 137(1) , (2), (5), and (7) 137A 137B
2: The proceeds of the sale must be applied in the following manner and order of priority:
a: in payment of the costs of the sale (including all costs incurred in recovering the motor vehicle, and towing and storing the vehicle):
b: in payment of the purchase price to the purchaser to whom the motor vehicle was sold under section 137
c: in payment of any unsatisfied amounts described in section 137(3) Section 137C inserted 1 December 2009 section 16 Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 137C(1) amended 1 August 2012 section 29 Sentencing Amendment Act 2011
138: Disposal of unsaleable confiscated vehicle
1: If the Registrar has reasonable grounds to believe that a motor vehicle that is delivered into his or her custody under section 132 or 137B
2: If the Registrar proposes to dispose of a motor vehicle under subsection (1), the Registrar—
a: is, for the purposes of the Land Transport Act 1998
b: must make that application before the disposal of the motor vehicle.
3: The person to whom a motor vehicle is disposed of under this section obtains, by virtue of this section, good title to the motor vehicle free of all ownership interests and other proprietary interests held in the motor vehicle before that disposition. Section 138(1) amended 1 December 2009 section 17 Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 138(2) inserted 1 August 2012 section 30 Sentencing Amendment Act 2011 Section 138(3) inserted 1 August 2012 section 30 Sentencing Amendment Act 2011
138A: Offender liable for outstanding costs of seizure, storage, and sale
1: If the amount realised from the sale of a motor vehicle under section 137 section 138
2: The costs are,—
a: if the motor vehicle has been impounded under the Land Transport Act 1998
b: the costs of the sale (including all costs incurred in seizing the motor vehicle, towing and storing the vehicle, and complying with the provisions of this subpart preliminary to sale).
3: Subsection (1) applies regardless of whether the offender owned or had an interest in the motor vehicle.
4: Part 3 section 84 section 19
5: A certificate issued Section 138A inserted 1 December 2009 section 18 Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 138A(4) replaced 13 February 2012 section 31(1) Sentencing Amendment Act 2011 Section 138A(4) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011 Section 138A(5) amended 13 February 2012 section 31(2)(a) Sentencing Amendment Act 2011 Section 138A(5) amended 13 February 2012 section 31(2)(b) Sentencing Amendment Act 2011
139: Procedure if notice given that vehicle subject to
security agreement
1: If notice is given to the Registrar before the proceeds of sale are fully applied section 137 a security agreement
2: The following provisions apply to every summons issued under subsection (1) so far as they are applicable and with the necessary modifications:
a: the provisions of the High Court Rules 2016
b: as the case may require, section 179 1985 No 120 s 87(4) Section 139 heading amended 1 August 2012 section 32(1) Sentencing Amendment Act 2011 Section 139(1) amended 1 August 2012 section 32(2)(a) Sentencing Amendment Act 2011 Section 139(1) amended 1 August 2012 section 32(2)(b) Sentencing Amendment Act 2011 Section 139(2)(a) amended 18 October 2016 section 183(c) Senior Courts Act 2016 Section 139(2)(b) amended 1 March 2017 section 261 District Court Act 2016
140: Lessor
1: The lessor (not being the offender or a substitute for the offender whose motor vehicle has been confiscated) under a lease section 129A 136(4) or disposed of terms of the lease
2: If subsection (1) applies, the Registrar may transfer the motor vehicle to the lessor accordingly.
2A: On the transfer of the motor vehicle under subsection (2) to the lessor, the lease is cancelled.
3: This section is subject to section 141A Section 140 replaced 1 December 2009 section 19 Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 140 heading amended 1 August 2012 section 33(1) Sentencing Amendment Act 2011 Section 140(1) amended 1 August 2012 section 33(2)(a) Sentencing Amendment Act 2011 Section 140(1) amended 1 August 2012 section 33(2)(b) Sentencing Amendment Act 2011 Section 140(1) amended 1 August 2012 section 33(2)(c) Sentencing Amendment Act 2011 Section 140(2A) inserted 1 August 2012 section 33(3) Sentencing Amendment Act 2011
140A: What happens if lessor does not apply to Registrar before motor vehicle sold or disposed of
1: This section applies if—
a: section 140
b: the lessor does not apply to the court for the transfer of the motor vehicle under section 140(1)
c: the vehicle is sold; and
d: the proceeds of the sale have not been fully applied.
2: The lessor may apply to the court for the release of the proceeds of the sale of the motor vehicle that have not been applied.
3: On an application under subsection (2), the Registrar or a District Court Judge may release the proceeds of the sale of the motor vehicle in accordance with subsections (4) and (5).
4: The proceeds of the sale of the motor vehicle must be applied in accordance with section 137 section 127(1)
5: However, despite subsection (4), section 137
a: the proceeds of the sale of the motor vehicle must be applied in payment to the lessor of the amount to which the lessor would, but for the sale, have been entitled to under the lease; and
b: the proceeds of the sale of the motor vehicle must be applied in the manner and order of priority set out in section 137
i: in the case of a lease for a term of 1 year or less section 137(3)(a) and (b)
ii: in the case of a lease for a term of more than 1 year, those proceeds must be applied for the payment to the lessor described in paragraph (a) as if they were payments described in section 137(3)(c)
6: On the release of the proceeds of the sale of the motor vehicle to the lessor, the lease is cancelled. Section 140A inserted 1 August 2012 section 34 Sentencing Amendment Act 2011 Section 140A(5)(b)(i) amended 26 March 2015 section 4 Sentencing Amendment Act 2015
141: Secured party may apply to court
1: Any party (not being the offender or a substitute for the offender whose motor vehicle has been confiscated) to a security agreement or disposed of
2: Subsection (1) does not apply to a motor vehicle that is to be destroyed under section 129A 136(4)
3: The court may, if it thinks fit, make an order—
a: directing the Registrar to transfer the motor vehicle to that other party; and
b: directing that party to sell the motor vehicle and account for the proceeds of sale in accordance with section 141B
3A: If 2 or more secured parties have applied for an order under subsection (3), then the court must transfer the motor vehicle to the secured party with the highest-ranking security interest under the order of priority determined by Part 7 8
4: Subsection (3) section 141A
5: The person to whom a motor vehicle is sold under a direction given under subsection (3)(b) obtains, by virtue of this section, good title to the motor vehicle free of all ownership interests and other proprietary interests held in the motor vehicle before that sale. Section 141 replaced 1 December 2009 section 19 Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 141(1) amended 1 August 2012 section 35(1) Sentencing Amendment Act 2011 Section 141(1) amended 1 August 2012 section 35(2) Sentencing Amendment Act 2011 Section 141(3A) inserted 1 August 2012 section 35(4) Sentencing Amendment Act 2011 Section 141(4) amended 1 August 2012 section 35(3) Sentencing Amendment Act 2011 Section 141(5) inserted 1 August 2012 section 35(5) Sentencing Amendment Act 2011
141A: Certain payments required before transfers take effect
1: An order for the transfer of a motor vehicle under section 140 141
a: if the motor vehicle has been impounded under the Land Transport Act 1998
b: any costs incurred in seizing, towing, and storing the motor vehicle.
2: Any costs required to be paid by subsection (1) must be paid within 10 working days after the day on which the lessor or the secured party is notified of the decision to transfer the vehicle, or within any longer period specified by the Registrar in writing.
3: If the costs specified in subsection (1) are not paid within the time required by or under subsection (2), the Registrar may proceed with the sale of the vehicle under section 137 or its disposal under section 138 Section 141A inserted 1 December 2009 section 19 Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 141A(3) amended 1 August 2012 section 36 Sentencing Amendment Act 2011
141B: Application of proceeds of sale by secured party
1: Every person to whom a motor vehicle is transferred under section 141
a: account to the Registrar for the proceeds of the sale:
b: pay into court the proceeds of the sale, less—
i: any costs paid under section 141A
ii: the amount of the costs and expenses of, and incidental to, the sale ; and
iii: the amount to which the secured party would, but for the extinguishment of the security interest concerned, have been entitled under the relevant security agreement (and that has not already been recovered).
2: The Registrar must then apply the balance remaining in accordance with section 137(3)(c) to (g) and (3A) Section 141B inserted 1 December 2009 section 19 Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 141B(1)(b) replaced 1 August 2012 section 37(1) Sentencing Amendment Act 2011 Section 141B(1)(b)(ii) amended 14 November 2018 section 165(1) Courts Matters Act 2018 Section 141B(1)(b)(iii) inserted 14 November 2018 section 165(2) Courts Matters Act 2018 Section 141B(2) amended 1 August 2012 section 37(2) Sentencing Amendment Act 2011
141C: Failure by secured party to sell or account for proceeds
1: If the court has directed a secured party under section 141(3)(b)
2: If the person in possession of the motor vehicle fails to surrender the motor vehicle at the time and place specified by the Registrar, the court may issue a warrant in the prescribed form authorising the Registrar or any bailiff or constable to recover the motor vehicle.
3: For the purpose of executing a warrant issued under subsection (2), the Registrar or bailiff or constable executing it may enter on any premises, by force if necessary, if the Registrar, bailiff, or constable has reasonable cause to believe that the motor vehicle in respect of which the warrant is issued is on those premises.
4: If any person is in actual occupation of the premises, the Registrar or bailiff or constable must, on entering, produce the warrant to that person.
5: If a motor vehicle is surrendered to or recovered by any bailiff or constable under this section, that officer must, as soon as practicable, deliver it into the custody of the Registrar.
6: Sections 133 134
7: As soon as practicable after the motor vehicle is delivered into the Registrar's custody under subsection (5), the Registrar must arrange for its sale under section 137 section 138
8: A secured party who fails, in whole or in part, to pay into court the money required under section 141B(1)(b) Section 141C inserted 1 August 2012 section 38 Sentencing Amendment Act 2011
142: Order may be cancelled on application by bona fide purchaser
1: On application to it by any person, the court must cancel a confiscation order (including a confiscation and destruction order under section 129A 136(4)
2: In the circumstances described in subsection (1), the court—
a: must make an order prohibiting the offender from acquiring any interest in a motor vehicle within 12 months after the date of the confiscation order or confiscation and destruction order:
b: may make any other consequential order or orders that it thinks just and reasonable.
3: Section 136 1985 No 120 s 88 Section 142(1) amended 1 December 2009 section 20(1) Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 142(2) replaced 1 December 2009 section 20(2) Sentencing (Vehicle Confiscation) Amendment Act 2009 Section 142(3) inserted 1 December 2009 section 20(2) Sentencing (Vehicle Confiscation) Amendment Act 2009 Forfeiture of vehicles used in offence of failing to stop, etc Heading inserted 1 March 2024 section 42 Land Transport (Road Safety) Amendment Act 2023
142AAA: Interpretation of terms used in sections 142AAB to 142AAF
Section 127 sections 142AAB to 142AAF Section 142AAA inserted 1 March 2024 section 42 Land Transport (Road Safety) Amendment Act 2023
142AAB: Forfeiture of vehicle used in offence of failing to stop, etc
1: This section applies if a person is convicted of an offence against section 52A(1)(a) or (b)
2: The court may make an order under subsection (3) if satisfied that, at the time of the conviction, the offender or a substitute for the offender owns or has an interest in the motor vehicle that was used in the commission of the offence.
3: The court may order that the motor vehicle be forfeited to the Crown.
4: Section 128(3A) to (5) Section 142AAB inserted 1 March 2024 section 42 Land Transport (Road Safety) Amendment Act 2023
142AAC: Offence to sell or dispose of motor vehicle subject to forfeiture order
1: This section applies if a motor vehicle—
a: is subject to a forfeiture order under section 142AAB(3) section 142AAE(4)
b: has not yet been surrendered to, or seized by, a Registrar, bailiff, or constable.
2: A person who sells or disposes of the motor vehicle or any part of the motor vehicle commits an offence and is liable on conviction to a fine not exceeding $2,000. Section 142AAC inserted 1 March 2024 section 42 Land Transport (Road Safety) Amendment Act 2023
142AAD: Offence to remove forfeited vehicle
A person who removes or attempts to remove a motor vehicle surrendered to or seized by a bailiff or constable under section 132 section 142AAF Section 142AAD inserted 1 March 2024 section 42 Land Transport (Road Safety) Amendment Act 2023
142AAE: Offender must not acquire new interest in motor vehicle for 12 months
1: This section applies if—
a: a court makes an order for the forfeiture of a motor vehicle under section 142AAB
b: a court has made an order under section 131(2)(a) section 142AAF
2: The offender must not, within 12 months after the date of the order, acquire any interest in any motor vehicle.
3: A person who acquires any interest in a motor vehicle in contravention of subsection (2) commits an offence and is liable on conviction to a fine not exceeding $500.
4: If a court convicts a person of an offence against this section, then instead of, or in addition to, imposing a fine, the court may order that the motor vehicle concerned be confiscated.
5: If a court orders the confiscation of a motor vehicle under subsection (4), sections 129EA 130 131 to 135 136A 137 138 to 142 section 142AAF Section 142AAE inserted 1 March 2024 section 42 Land Transport (Road Safety) Amendment Act 2023
142AAF: Modified application of confiscation scheme to forfeiture
1: If a court orders the forfeiture of a motor vehicle under section 142AAB section 128 129
2: The following provisions apply:
a: sections 129B to 129D
b: sections 129E 129EA
c: section 130
d: sections 130A 131
e: sections 132 134 135
f: section 136A
g: section 137 sections 138 to 141C
h: section 142
3: Modifications to the application of the provisions specified in subsection (2) include the following:
a: a reference to the confiscation of a motor vehicle, or an order for the confiscation of a motor vehicle, under section 128 section 142AAB
b: any other reference to the confiscation of a motor vehicle must be read as a reference to the forfeiture of a motor vehicle:
c: a reference to an offence specified in section 128(1) section 52A(1)(a) or (b) section 142AAB(1)
d: any reference to an offender in connection with an offence specified in section 128 129 section 52A(1)(a) or (b) section 142AAB(1)
e: any other reference to section 128 section 142AAB
f: any reference to any section specified in subsection (2) must be read as a reference to that section as applied and modified by this section. Section 142AAF inserted 1 March 2024 section 42 Land Transport (Road Safety) Amendment Act 2023 Instrument forfeiture orders Heading inserted 1 December 2009 section 10 Sentencing Amendment Act 2009
142A: Interpretation of terms used in sections 142B to 142Q
For the purposes of sections 142B to 142Q Commissioner prosecutor section 5(1) Section 142A inserted 1 December 2009 section 10 Sentencing Amendment Act 2009
142B: Duties of prosecutor if offender guilty of qualifying instrument forfeiture offence
If a person is convicted of a qualifying instrument forfeiture offence and any property was used to commit, or to facilitate the commission of, that offence, the prosecutor must, if in the prosecutor’s opinion the court should consider whether to make an instrument forfeiture order in respect of that property, notify the court in writing of—
a: the details of that property:
b: the name and identifying details of any person (other than the offender) who, to the knowledge of the prosecutor, has an interest in the property. Section 142B inserted 1 December 2009 section 10 Sentencing Amendment Act 2009
142C: Duties of court on notification
On receiving notice under section 142B
a: must direct the prosecutor to issue and serve any notice required by section 142E
b: may direct the prosecutor to report further information to the court under section 142F Section 142C inserted 1 December 2009 section 10 Sentencing Amendment Act 2009
142D: Notice of possible instrument forfeiture order may be recorded on registers
1: Subsection (2) applies if the court has given a direction under section 142C
a: title to that property; or
b: charges over that property.
2: If this subsection applies, the court may order any authority responsible for administering an enactment of the kind referred to in subsection (1) (an Authority
3: The court must order an Authority to cancel an entry made on a register under subsection (2) if—
a: the matter to which the entry relates is finally determined and the relevant appeal period (defined in section 73(3) section 85
b: proceedings to which the entry relates are discontinued for any reason. 1991 No 120 s 16(2), (3) Section 142D inserted 1 December 2009 section 10 Sentencing Amendment Act 2009
142E: Duties of prosecutor as to service
1: If a court gives a direction under section 142C section 142B
a: that the property may be made the subject of an instrument forfeiture order:
b: that the person may, within 10 working days of the date of the notice, apply to the court for relief:
c: of the grounds set out in section 77(1)
2: A notice given under subsection (1) must be given as soon as practicable after the court gives a direction under section 142C Section 142E inserted 1 December 2009 section 10 Sentencing Amendment Act 2009
142F: Court may require further information
The court may, for the purposes of determining whether to make an instrument forfeiture order or an order for relief from an instrument forfeiture order, or for the purposes of determining the terms of an instrument forfeiture order or an order for relief from an instrument forfeiture order, direct the prosecutor, the offender, or any person who applies for relief to provide further information to the court about—
a: the value of the property that comprises the instrument of crime:
b: the nature, extent, and value of the offender’s interest in the property that comprises the instrument of crime:
c: the name of any other person with an interest in the instrument of crime, the nature and extent of that person’s interest, and whether or not that person has been notified of the proceedings:
d: the name of any person who may suffer undue hardship if the property is confiscated and the nature of that hardship:
e: any other matter specified by the court. Section 142F inserted 1 December 2009 section 10 Sentencing Amendment Act 2009
142G: Independent valuation of property
For the purposes of determining the value of an instrument of crime, a court may, at its own discretion or at the request of either party to the proceedings or any person who claims to have an interest in the property, seek an independent valuation as to the value of the property or any interest in the property. Section 142G inserted 1 December 2009 section 10 Sentencing Amendment Act 2009
142H: Court may order declaration of ownership to be completed
1: If a court is considering whether or not to make an instrument forfeiture order, the court may order that the offender, or any other person, complete a declaration of ownership before making the order.
2: The declaration of ownership must specify—
a: whether the offender owns, or has any interest in, the property in question at the relevant date; and
b: whether any other person owns, or has any interest in, the property at the relevant date, and, if so, the name of that person and the nature of that interest; and
c: whether the offender has ceased to be the owner of, or to have any interest in, the property in question at any time subsequent to the commission of the offence but before the date of his or her conviction; and
d: if the offender has disposed of his or her interest in the property in question during the period referred to in paragraph (c), to whom the ownership or interest in the property was disposed, the relationship of that person to the offender, and the consideration received by the offender.
3: If a court does not make an order under this section that does not affect the validity of any other order of the court.
4: In this section, relevant date Section 142H inserted 1 December 2009 section 10 Sentencing Amendment Act 2009
142I: Determining ownership of property
For the purpose of determining the nature and extent of any person’s interest in an instrument of crime, the court may apply the provisions of section 17A Section 142I inserted 1 December 2009 section 10 Sentencing Amendment Act 2009 Section 142I amended 27 July 2023 section 53 Criminal Proceeds (Recovery) Amendment Act 2023
142J: Applications for relief from instrument forfeiture order
1: Any person (other than the offender) may make an application for relief from an instrument forfeiture order.
2: An application by any person for relief must be made to the court that convicted the offender—
a: on either of the grounds set out in section 77(1)
b: in the prescribed form (if any); and
c: within—
i: the time specified in the notice served on the person under section 142E
ii: if no notice is served on the person, 15 working days after the day on which the offender was convicted of the qualifying instrument forfeiture offence; or
iii: the time allowed by the court, if the court grants an application by the person to make an application for relief after the time by which such an application must be made under subparagraph (i) or (ii).
3: An applicant for relief from an instrument forfeiture order must serve notice of that application on—
a: the prosecutor:
b: the offender:
c: the Commissioner:
d: the Official Assignee:
e: any other person whom the applicant has reason to believe may—
i: have an interest in the property that is the subject of the application; or
ii: suffer undue hardship as a consequence of the forfeiture of the property:
f: any specified person or class of persons in respect of whom the court directs the applicant to serve notice of the application.
4: An applicant for relief must provide the court and the prosecutor with a list of persons on whom notice of the application has been served. Section 142J inserted 1 December 2009 section 10 Sentencing Amendment Act 2009
142K: Hearings concerning instrument forfeiture orders
1: If a court issues a direction under section 142C section 142J
2: At the hearing, the prosecutor, the offender, any person making an application for relief from an instrument forfeiture order, and any other person who claims to have an interest in the property that may be the subject of the instrument forfeiture order or who believes that he or she may suffer undue hardship if the property is forfeited, may be heard.
3: If a hearing is not held under subsection (1), the matters referred to in that subsection and subsection (2) may occur during the sentencing hearing. Section 142K inserted 1 December 2009 section 10 Sentencing Amendment Act 2009
142L: Court may grant relief from instrument forfeiture order to applicant who establishes interest in property
1: This section applies if—
a: a person applies to the court under section 142J section 77(1)(a)
b: the court is satisfied, following a hearing under section 142K
i: has an interest in the property to which the instrument forfeiture order relates; and
ii: was not involved in the qualifying instrument forfeiture offence to which the order relates.
2: If this section applies, the court must make an order—
a: declaring the nature, extent, and value of the applicant’s interest in the property; and
b: either—
i: directing the Crown to transfer the interest to the applicant; or
ii: declaring that there is payable by the Crown to the applicant an amount equal to the value of the interest declared by the court; or
iii: directing that the interest not be included in an instrument forfeiture order made in respect of the proceedings that gave rise to the application; or
iv: determining, in accordance with section 142N
3: Despite subsection (2), the court may, but is not required to, refuse to make an order under subsection (2) if it is satisfied that—
a: the applicant was, in any respect, involved in the commission of the offence in respect of which forfeiture of the property is or was under consideration; or
b: if the applicant acquired the interest at the time of or after the commission of the offence, the applicant did not acquire the interest in the property in good faith and for value.
4: The court must not make an order under subsection (2)(b)(ii) unless it is satisfied that it cannot reasonably make an order under subsection (2)(b)(i) or (iii) (for example, because the interest of the applicant is not severable from the other property in question). Section 142L inserted 1 December 2009 section 10 Sentencing Amendment Act 2009
142M: Court may grant relief from instrument forfeiture order to applicant on grounds of undue hardship
1: This section applies if a person applies to the court under section 142J section 77(1)(b)
2: If the court is satisfied that, having regard to all the circumstances, undue hardship is likely to be caused to the person making the application or to another person (other than the offender), by the operation of an instrument forfeiture order, the court—
a: may order that the person is entitled to be paid a specified amount out of the proceeds of sale of the property, being an amount that the court thinks is necessary to prevent undue hardship to that person; and
b: if the person is under 18 years, may make additional orders for the purpose of ensuring the proper application of an amount to be paid to that person.
3: The circumstances a court may have regard to under subsection (2) include, without limitation,—
a: the use that is ordinarily made, or was intended to be made, of the property that would be the subject of the instrument forfeiture order; and
b: the nature and extent of any person’s interest in the property; and
c: any other matter relating to the nature and circumstances of the qualifying instrument forfeiture offence to which the property relates. 1991 No 120 ss 15(2) 18 Section 142M inserted 1 December 2009 section 10 Sentencing Amendment Act 2009
142N: Instrument forfeiture orders
1: Following a hearing under section 142K section 142B
2: In considering whether or not to make an instrument forfeiture order under subsection (1) in respect of particular property, the court may have regard to—
a: any matter raised in an application for relief under section 142J
b: the use that is ordinarily made, or was intended to be made, of the instrument of crime; and
c: any undue hardship that is reasonably likely to be caused to any person by the operation of such an order; and
d: the nature and extent of the offender’s interest in the instrument of crime (if any), and the nature and extent of any other person’s interest in it (if any); and
e: in addition to the matters referred to in section 77(1)
3: A court that makes an instrument forfeiture order may, if it considers that it is appropriate to do so, by order,—
a: declare the nature, extent, and value of any person’s interest in an instrument of crime; and
b: declare that the instrument forfeiture order may, to the extent to which it relates to the interest, be discharged under section 85
4: If the court orders that property (other than money) be forfeited to the Crown, the court must specify in the order the amount that it considers to be the value of the property at the time the order is made.
5: If a court makes an instrument forfeiture order, the court may give any directions that are necessary or convenient for giving effect to the order. Section 142N inserted 1 December 2009 section 10 Sentencing Amendment Act 2009
142O: Offence of providing false or misleading information under section 142F
Every person is liable on section 142F Section 142O inserted 1 December 2009 section 10 Sentencing Amendment Act 2009 Section 142O amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011
142P: Evidence in instrument forfeiture order proceedings
In determining whether or not to make an instrument forfeiture order under section 142N
a: documents, exhibits, or other things connected with the proceedings that the court considers relevant; and
b: notes or transcripts of evidence admitted in the proceedings. 1991 No 120 s 14(1) Section 142P inserted 1 December 2009 section 10 Sentencing Amendment Act 2009
142Q: Relationship with other provisions in Act
Nothing in sections 142A to 142P sections 127 to 142 Section 142Q inserted 1 December 2009 section 10 Sentencing Amendment Act 2009
6: Miscellaneous, transitional, and savings provisions
Miscellaneous provisions
143: Sentence not invalidated by mistake in age of offender
1: A sentence imposed on an offender for a particular offence is not invalid by reason only of the fact that the offender was, at the time when the offence was committed, under the age at which he or she was liable to the sentence imposed.
2: If a sentence to which subsection (1) applies has been imposed on an offender, the offender, the prosecutor, or any counsel on behalf of the Crown may, at any time, apply in accordance with this section for the substitution of some other sentence.
3: An application under this section must be made—
a: to the High Court, if the sentence was passed—
ia: by the Supreme Court on appeal against a sentence imposed by the High Court, or imposed by the Court of Appeal on appeal from the High Court; or
i: by the Court of Appeal on appeal from the High Court; or
ii: by the High Court otherwise than on appeal from the District Court
b: to the District Court presided
ia: by the Supreme Court on appeal against a sentence imposed by the District Court presided the District Court presided
i: by the Court of Appeal on appeal from the District Court presided
ii: by a District Court Judge upon conviction following a jury trial
c: to the District Court
4: The Judge to whom the application is made, after inquiry into the circumstances of the case, may impose in substitution for the original sentence any sentence that could have been imposed on the offender at the time of conviction.
5: For the purposes of an appeal or application for leave to appeal against the substituted sentence,—
a: the substituted sentence is deemed to be a sentence passed on the conviction of the offender; but
b: the time allowed for giving notice of the appeal or application runs from the date on which the substituted sentence was in fact imposed. 1985 No 120 s 137 Section 143(1) replaced 7 July 2004 section 18 Sentencing Amendment Act 2004 Section 143(2) replaced 7 July 2004 section 18 Sentencing Amendment Act 2004 Section 143(3)(a)(ia) inserted 1 January 2004 section 48(1) Supreme Court Act 2003 Section 143(3)(a)(ii) amended 1 March 2017 section 261 District Court Act 2016 Section 143(3)(b) amended 1 March 2017 section 261 District Court Act 2016 Section 143(3)(b)(ia) inserted 1 January 2004 section 48(1) Supreme Court Act 2003 Section 143(3)(b)(ia) amended 1 March 2017 section 261 District Court Act 2016 Section 143(3)(b)(i) amended 1 March 2017 section 261 District Court Act 2016 Section 143(3)(b)(ii) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011 Section 143(3)(c) amended 1 March 2017 section 261 District Court Act 2016
143A: Sentencing following finding or verdict of guilt on more than 1 charge
If 1 sentence is imposed following a finding of guilt or verdict of guilty on more than 1 charge, the sentence is lawful if any of those charges would have justified the sentence. 1961 No 43 s 340(7) Section 143A inserted 1 July 2013 section 6 Sentencing Amendment Act (No 2) 2011
144: Royal prerogative not affected
Nothing in this Act limits or affects the Royal prerogative of mercy. 1985 No 120 s 146
145: Maximum period of detention for administrative tasks
1: The purpose of this section is to provide for the maximum period for which an offender may be detained in the custody of the court, on any one occasion, to allow any administrative tasks to be completed if—
a: 2 or more of those tasks apply or relate to the offender; and
b: they have to be completed at the same time.
2: An offender may be detained in the custody of the court for a period not exceeding 3 hours if the offender is required, at any time before sentencing, to complete both of the following:
a: make a declaration of financial capacity in accordance with section 42
b: make a declaration of ownership of a motor vehicle in accordance with section 130
3: An offender may be detained in the custody of the court for a period specified in subsection (4) if, at any time after sentencing, 2 or more of the following are required to be completed:
a: the offender to make a declaration of financial capacity in accordance with section 42
b: an order for a community-based sentence to be drawn up and a copy given to the offender under section 74
c: an order for a sentence of home detention to be drawn up and a copy given to the offender under section 80ZC
d: a non-association order to be drawn up and a copy given to the offender under section 115
e: a protection order to be drawn up and served on the offender under section 123E
4: The period referred to in subsection (3) is—
a: a period not exceeding 3 hours if any 2 administrative tasks are required to be completed; or
b: a period not exceeding 4 hours if any 3 or more administrative tasks are required to be completed.
5: If an offender is detained in the custody of the court for 2 or more orders for community-based sentences to be drawn up under section 74
6: Nothing in this section limits or affects sections 42A 74(4) 80ZC(4) 115(2) 123E(2) 130(3)
7: In this section, administrative task Section 145 replaced 13 February 2012 section 39 Sentencing Amendment Act 2011
145A: Manner in which amounts of reparation must be applied in cases involving same offence
Section 145A repealed 13 February 2012 section 40 Sentencing Amendment Act 2011
145B: Manner in which amounts of reparation must be applied in cases involving different offences
Section 145B repealed 13 February 2012 section 40 Sentencing Amendment Act 2011
145C: No Crown liability for error, etc, in applying payments of amounts of reparation
Section 145C repealed 13 February 2012 section 40 Sentencing Amendment Act 2011
145D: Definitions for sections 145A to 145C
Section 145D repealed 13 February 2012 section 40 Sentencing Amendment Act 2011
146: Consent to treatment, etc, not affected
1: No sentence or condition imposed or order made under this Act limits or affects in any way any enactment or rule of law relating to consent to any medical or psychiatric treatment.
2: Subsection (1) applies except as expressly provided by any other enactment. 1985 No 120 s 148
146A: A certificate of conviction for succession purposes
1: On or at any time after sentencing a person for an offence against any Act of unlawfully killing another person or child that has not become a person, a court may certify that for the purposes of the Succession (Homicide) Act 2007
2: A court may issue a certificate under this section on the application of the prosecutor Section 146A inserted 17 November 2007 section 17 Succession (Homicide) Act 2007 Section 146A(2) amended 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011
147: Regulations
1: The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
a: prescribing forms for the purposes of this Act:
b: prescribing the procedure for recording changes to registration details of a motor vehicle when an order for confiscation of a vehicle is made:
c: prescribing offences in respect of the contravention of, or non-compliance with, any regulations made under this Act and the amounts of fines that may be imposed in respect of those offences, which fines must not exceed $500:
ca: prescribing the amount of the levy payable under section 105B
d: generally providing for any other matters that are contemplated by, or necessary for giving full effect to, this Act, and for its due administration.
2: Regulations under this section are secondary legislation ( see Part 3 1985 No 120 s 149 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 147(1)(ca) inserted 1 July 2010 section 9 Sentencing (Offender Levy) Amendment Act 2009 Section 147(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Transitional and savings provisions
148: Reparation or fine for offence committed before commencement date
1: This section applies if an offender is sentenced on or after the commencement date for an offence committed before that date.
2: Sections 11 22 to 28
3: Despite subsection (2), unless the particular enactment expressly provides otherwise, no court may sentence an offender referred to in subsection (1) to both a sentence of imprisonment and a fine for a particular offence.
149: Community-based sentence for offence committed before commencement date
1: This section applies if an offender is sentenced on or after the commencement date for an offence committed before that date.
2: The court may, subject to section 19
a: sentence the offender to community work under subpart 2 section 29 section 37
b: sentence the offender to supervision under subpart 2 section 46 section 53
3: When determining the length of, or number of hours of work to be done under, a sentence imposed in accordance with this section, the court—
a: must take into account the length of the sentence or the number of hours of work or service that it could have imposed had it dealt with the offender immediately before the commencement date; and
b: must not impose a greater number of hours or a longer sentence than it would have imposed had it sentenced the offender immediately before the commencement date.
150: Community-based sentences imposed under Criminal Justice Act 1985
Section 150 repealed 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011
151: Offender subject to community-based sentence under Criminal Justice Act 1985 sentenced to further community-based sentence after commencement date
Section 151 repealed 1 July 2013 section 7 Sentencing Amendment Act (No 2) 2011
152: Section 86 not to apply to offender convicted of offence committed before commencement date except for serious violent offender
1: Except as provided in subsection (2), nothing in section 86
2: If an offender is sentenced on or after the commencement date for an offence committed before that date that is a serious violent offence as defined in section 2 section 86
153: Offender convicted of specified offence committed before commencement date
1: This section applies if—
a: an offender is sentenced on or after the commencement date for an offence committed before that date that is a specified offence as defined in section 75(4)
b: had the court been dealing with the offender immediately before the commencement date, the court would have sentenced the offender to preventive detention under section 75
2: The court may deal with the offender under sections 87 to 90
154: Offender convicted of murder committed before commencement date
1: This section applies if an offender is sentenced on or after the commencement date for the crime of murder committed before that date.
2: Except as provided in subsection (3), the offender must be sentenced under this Act.
3: Section 104
155: Suspended sentences of imprisonment
1: This section applies to an offender who, immediately before the commencement date, was subject to a suspended sentence of imprisonment imposed under the Criminal Justice Act 1985
2: The offender continues to be subject to that sentence on and after the commencement date, and the provisions of the Criminal Justice Act 1985
3: Section 21A
4: If a court decides that a suspended sentence is not to take effect for the period specified in the order, the court must either—
a: order that the suspended sentence—
i: take effect with the substitution of a lesser term of imprisonment; or
ii: be cancelled and replaced by any sentence of reparation or a fine that could have been imposed on the offender at the time when the offender was convicted of the offence for which the suspended sentence was imposed, or a community-based sentence under subpart 2
iii: be cancelled; or
b: decline to make any order referred to in paragraph (a) concerning the suspended sentence.
156: Corrective training
1: This section applies to an offender who, immediately before the commencement date, was subject to a sentence of corrective training imposed under section 68
2: The offender must continue to serve that sentence as if this Act had not been passed, and the provisions of the Criminal Justice Act 1985
157: Offenders liable to come up for sentence if called on
1: This section applies to every order made under section 21
2: The order—
a: continues in force as if it were an order made under section 110
b: ceases to have effect on the date on which it would have ceased to have effect had this Act not been enacted.
158: Non-association orders and confiscation of vehicles for offence committed before commencement date
1: This section applies if an offender is sentenced on or after the commencement date for an offence committed before that date.
2: The court may make a non-association order or order for the confiscation of a vehicle under subpart 5 Criminal Justice Act 1985
159: Non-association orders, disqualification from driving, and confiscation of vehicles imposed under Criminal Justice Act 1985
Every non-association order, disqualification from driving order, or order for the confiscation of a vehicle made under the Criminal Justice Act 1985 subpart 5
160: Person under 17 years of age imprisoned
1: This section applies if, immediately before the commencement date,—
a: an offender was subject to a sentence of imprisonment imposed for any offence other than a purely indictable offence within the meaning of section 18
b: at the time of the commission of that offence the offender had not attained the age of 17 years.
2: The offender continues to be subject to the sentence despite the fact that at the time of the commission of the offence the offender had not attained the age of 17 years.
3: Nothing in section 143(2)
7: Amendments to other enactments
Amendments to Children, Young Persons, and Their Families Act 1989
161: Custody of child or young person pending hearing
Amendment(s) incorporated in the Act(s)
162: Restrictions on power of court to order child or young person to be detained in custody
Amendment(s) incorporated in the Act(s)
163: New section 239A inserted
Amendment(s) incorporated in the Act(s) Amendments to Crimes Act 1961
164: Repeal of home invasion provisions in Crimes Act 1961
Amendment(s) incorporated in the Act(s)
165: New section 172 substituted
Amendment(s) incorporated in the Act(s) Amendments to Criminal Justice Act 1985
166: Certain provisions in Criminal Justice Act 1985 repealed
Amendment(s) incorporated in the Act(s)
167: Appeal against acquittal on account of insanity
Section 167 repealed 1 September 2004 section 51 Criminal Procedure (Mentally Impaired Persons) Act 2003
168: Order to be made if person under disability or insane
Section 168 repealed 1 September 2004 section 51 Criminal Procedure (Mentally Impaired Persons) Act 2003
169: Power of court to commit to institution on conviction
Section 169 repealed 1 September 2004 section 51 Criminal Procedure (Mentally Impaired Persons) Act 2003
170: Power of court to require psychiatric report
Section 170 repealed 1 September 2004 section 51 Criminal Procedure (Mentally Impaired Persons) Act 2003
171: Access to psychiatric reports
Section 171 repealed 1 September 2004 section 51 Criminal Procedure (Mentally Impaired Persons) Act 2003
172: Probation officers
Amendment(s) incorporated in the Act(s)
173: New section 124A inserted
Amendment(s) incorporated in the Act(s)
174: Duties of probation officers
Amendment(s) incorporated in the Act(s)
175: New sections 126 and 127 substituted
Amendment(s) incorporated in the Act(s)
176: New section 129 substituted
Amendment(s) incorporated in the Act(s)
177: Special provisions as to young persons remanded or committed for trial or sentence
Amendment(s) incorporated in the Act(s)
178: New sections 142AA and 142AB inserted into Criminal Justice Act 1985
Amendment(s) incorporated in the Act(s)
179: Detention of children or young persons serving sentence of imprisonment
Amendment(s) incorporated in the Act(s) Amendment to District Courts Act 1947 Heading repealed 20 May 2004 section 3(3) District Courts Amendment Act 2004
180: Appointment and qualifications
Section 180 repealed 20 May 2004 section 3(3) District Courts Amendment Act 2004 Amendment to Judicature Act 1908 Heading repealed 20 May 2004 section 3(3) Judicature Amendment Act 2004
181: Judges of the High Court
Section 181 repealed 20 May 2004 section 3(3) Judicature Amendment Act 2004 Amendments to Misuse of Drugs Amendment Act 1978
182: Parole
Amendment(s) incorporated in the Act(s) Amendments to Summary Proceedings Act 1957
183: Extension of time to pay
Amendment(s) incorporated in the Act(s)
184: Bailiff may arrange extension of time to pay
Amendment(s) incorporated in the Act(s)
185: Operation of attachment order
Amendment(s) incorporated in the Act(s) Other amendments and repeals
186: Acts amended
The Acts set out in Schedule 1
187: Enactments repealed
The enactments set out in Schedule 2