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Criminal & traffic law

Sentencing: The judge’s decision about punishment

How the judge decides your sentence

Sentencing principles and important factors

Principles of sentencing

Sentencing Act 2002, s 8

When sentencing you, the judge must take into account principles such as:

  • the seriousness of the offending and your degree of blame (“culpability”)
  • the seriousness of the type of offence
  • the effect of the offending on the victim
  • your whānau, community and cultural and socio-economic background.

Aggravating factors

Sentencing Act 2002, s 9

In deciding on your particular sentence, the judge will look at factors that might increase the sentence (“aggravating factors”) including:

  • whether the offence involved actual or threatened violence or actual or threatened use of a weapon
  • whether the offence was committed while the you were on bail or on parole
  • the extent of any loss, damage or harm resulting from the offence
  • any particular cruelty in carrying out of the offence
  • whether you took advantage of a position of trust or authority in relation to the victim
  • whether the victim was particularly vulnerable because of age or health or any other factor known to you (for example, whether or not children were present)
  • any planning ahead (“premeditation”)
  • any previous convictions.

Mitigating factors

Sentencing Act 2002, s 9

When they sentence you, the judge must also take into account factors that might reduce the sentence (“mitigating factors”) including:

  • your age
  • if and when you pleaded guilty
  • the conduct of the victim
  • whether you have diminished intellectual capacity or understanding. (This doesn’t cover situations where at the time of committing the offence you were affected by alcohol or any drug or other substance (unless medically prescribed).
  • if you’ve shown that you’re sorry (shown “remorse”)
  • any evidence of your good character.

Sentencing Act 2002, s 10

The judge is also required to take into account your offers or actions to make amends (putting it right) to the victim. This might include apologies, compensation or the performance of work or service.

Sentencing Act 2002, s 30

Note: A judge cannot impose a sentence of imprisonment unless you have received legal advice, or have been given the opportunity to receive legal advice but turned it down.

Cultural factors

Sentencing Act 2002, s 27

You can ask the court to hear from any person or people you want to call on to speak about your background and how this might be relevant to your offending. This can include your cultural or community background, your family/whānau background and your personal background.

The person you ask to speak for you could be, for example, a member of your family/whānau, or a kaumātua, minister, elder or community worker.

The court can refuse your request only if it’s satisfied that for some special reason this would be unnecessary or inappropriate.

The person or people you call on can also talk about any Restorative Justice or other processes that have been tried (or could be tried) involving you, the victim of your offending and your family/whānau to resolve issues relevant to your offending.

They can also talk about what support from your family/whānau or community may be available to prevent you offending again and about how your background or that support could be relevant to the judge in deciding what sentence to impose.

Reports from probation officers

Sentencing Act 2002, ss 26, 26A

In order to help determine your sentence, the court can ask for a report to be completed.

Stand-down reports

If the offence is a minor one and you plead guilty, sentencing may take place on the same day. The sentence may be given straight away, or a stand-down report may be ordered for sentencing later that day.

The report is prepared by a probation officer and contains information about your personal circumstances and background and about factors relevant to the offending. The report will recommend a particular sentence to the court.

Pre-sentence reports

If sentencing cannot be done on the day, the court will delay sentencing until a pre-sentence report has been prepared. A probation officer will write a report about you and your personal circumstances. In cases where a sentence of home detention or community detention is being considered, information must be included about the suitability of the proposed curfew address or home detention residence, including the safety and welfare of other occupants. It will also include an assessment of your risk of reoffending.

The judge gives this report considerable weight in determining the sentence. These reports contain more detail than stand-down reports. It’s important that you co-operate with probation officers when reports are being prepared, as a failure to co-operate will be reported to the court. These reports are often done closer to sentencing, to include any updated circumstances affecting your situation.

“Plea in mitigation” presented by defence lawyer

If you plead guilty, your lawyer can present to the court what’s called a “plea in mitigation”. This tells the judge about any special circumstances that should be taken into account before you’re sentenced.

The aim of a plea in mitigation is to reduce your sentence by highlighting the factors that lessen (“mitigate”) the seriousness of your offence and show that you take responsibility for your actions.

A plea in mitigation will often include details about the following:

  • Your personal circumstances – any relevant personal circumstances at the time you committed the offence. For example:
    • your income (what you earn) and expenses (your bills)
    • any dependants you have
    • your employment history
    • your medical history
    • your living arrangements (where you live and who else lives there).
  • Your response to your offending – what your attitude and response to your offending have been. For example:
    • if you’ve shown that you’re sorry (shown “remorse”)
    • if you’ve accepted responsibility for what you did
    • if you’ve apologised to the victim (if this isn’t a breach of your bail conditions)
    • if you’ve been to counselling
    • if the offending was out of character for you.

Character references can also be included in a plea in mitigation.

Next Section | Fines

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The criminal courts

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Your local Community Law Centre can provide free initial legal advice and information.

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Lag Law answers heaps of common questions you might have if you’re going to prison, you’re in prison, or you’re getting out of prison. It talks about your rights in prison, and sets out the laws and rules that affect you when you’re put in prison.

Order hard copies from:
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Ministry of Justice


The Ministry of Justice website has a range of pamphlets and other information on topics covered in this chapter. You can access this information online, or you can order hardcopies of the pamphlets from:

Phone: 0800 587 847
Email: publications@justice.govt.nz


Ministry of Justice Collections Unit – www.justice.govt.nz/fines

Phone: 0800 4 FINES (0800 434 637)
From overseas: +64 4 915 8586
From Australia: 1800 144 239 (toll free)

You can check or pay your fines by phone or online. The website has information about both infringement fines and court-imposed fines, and about reparations. The website also has information about District Court Collections Units.

Department of Internal Affairs – www.passports.govt.nz/what-you-need-to-renew-or-apply-for-a-passport/before-you-travel/

This webpage has information about paying your fines to avoid being stopped at the border.

Phone: 0800 PAYORSTAY (0800 729 677)

“Giving evidence” (Law Society pamphlet)


This pamphlet is for people who have to give evidence in court as a witness.

You can order hardcopies from the New Zealand Law Society:

Phone: (04) 472 7837
Email: pamphlets@lawsociety.org.nz

Department of Corrections


This website has information:

for offenders

for family and friends of offenders

about the Department of Corrections’ role in the community, including community work, supervision, home detention, and the role of probation officers

about the New Zealand Parole Board.

Victim Notification Register


This page on the Department of Corrections website has information about the victim notification register including, the process, how to apply, information victims can receive and how to make a complaint.

Restorative Practices Aotearoa


This website provides information on when Restorative Justice may be appropriate, and where in New Zealand Restorative Justice is available. You can also make an enquiry about Restorative Justice by filling out a form on their website.

Phone: 0800 RJA INC (0800 752 462)

Victim Support


Victim Support provides 24-hour support services to help New Zealanders rebuild their lives following a trauma or crisis.

Phone: 0800 842 846
Email: nationaloffice@victimsupport.org.nz

Victims Information


This is the website of the government’s “Victims Centre”. The site provides links to a range of services available to help victims deal with the practical and emotional effects of the crime, at each stage of the criminal and youth justice process.

Phone: 0800 650 654

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