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Criminal & traffic law

How criminal sentencing works

Overview

Starting points, uplifts and discounts: How a sentence is decided

Case: [2005] 3 NZLR 372 (CA)

If you’re convicted of an offence, the judge will usually first set a “starting point” sentence, based on what you did in your particular case and including any features that made it worse (“aggravating factors”) or not as bad (“mitigating factors”) than it would otherwise have been.

After setting this starting point, the judge will then turn to you, your current situation and any criminal record you have. The judge will apply “uplifts” (increases) for any aggravating factors relating to you, and “discounts” (reductions) for mitigating factors relating to you.

For example:

  • An assault involving several punches to the head might mean a starting-point sentence of around 100 hours community work. In setting this, the judge will have taken into account aggravating factors relating to what happened (for example, if the other person was smaller and younger than you) and any mitigating factors (for example, that you were provoked).
  • If you have a record, particularly for the same type of offending, you’ll usually get an “uplift” for this as an aggravating factor. So in this assault example, this could take the sentence to a short prison term of two to three months.
  • But then you may get “discounts” for mitigating factors, like cooperating with the police, pleading guilty, and saying sorry (“expressing remorse”). In the above example, those discounts might cancel out the aggravating “uplift” so that the final sentence is roughly the same as the starting point of 100 hours community work.

How much will my sentence be reduced if I plead guilty?

Sentencing Act 2002, s 9(2)(b); Case: [2010] NZSC 135

In general, the earlier you plead guilty, the greater the reduction (“discount”) you’re likely to get for pleading guilty. However, other factors in your particular case will be taken into account too, such as how much you’ve admitted responsibility for the offending and shown that you’re sorry.

The maximum discount you’ll be able to get for a guilty plea will be 25%.

Next Section | Shoplifting

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Common crimes

Where to go for more support

Community Law

www.communitylaw.org.nz

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

Ministry of Justice

www.justice.govt.nz/publications

The Ministry of Justice website has a range of pamphlets and other information on the criminal court system. You can access this information online, or you can order hardcopies of the pamphlets from:

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

Drug Foundation

www.drugfoundation.org.nz

The New Zealand Drug Foundation has a large amount of information about different drugs and their effects, and about criminal offences and penalties. They also provide drug checking services.

KnowYourStuffNZ

www.knowyourstuff.nz

KnowYourStuffNZ provides free information, advice, and drug checking services using a range of testing methods at events around New Zealand.

The New Zealand Needle Exchange Programme

www.nznep.org.nz

The Needle Exchange Programme provides and collects needles for safe disposal, advice on harm reduction, and is licensed to provide drug checking services.

The Level

www.thelevel.org.nz

The Level provides free guides for people who use drugs. Click on “I’m looking for drug checking” on their website for a calendar of non-festival drug checking clinics in Aotearoa.

Ministry of Health

www.health.govt.nz

The Ministry of Health has information about the legal use of cannabis products for medical reasons, and which particular products have been approved. Look under “Our work / Regulation / Medicines control / Prescribing cannabis-based products”.

Ministry of Primary Industries

www.mpi.govt.nz/travel-and-recreation/fishing

The MPI website has information about recreational fishing rules and customary gathering rights.

The MPI also runs an automated information line that you can text to find out about minimum sizes and daily catch limits for particular species. Just text the name of the species in your message – just “paua” for example (it doesn’t work if you spell it “pāua”) – and send it to 9889.

How to find the cases we’ve cited in this chapter

This chapter cites a number of New Zealand court decisions as legal authority for the law as we’ve stated it. If you need to look up these cases, you can look at the references for each section and search for them either online or in a law library.

When we give the case citation, we give just the unique case reference – for example, “[2012] NZHC 15”. We haven’t included the case name (which is usually in a format like “Police v Douglas” or “R v Myers”).

You’ll be able to read most of these cases on the government website Judicial Decisions Online, at forms.justice.govt.nz/jdo/Search.jsp. The case will be on that site if the citation we’ve given includes either “NZHC” (for High Court), or “NZCA” (for Court of Appeal), or “NZSC” (for Supreme Court). You’ll need to search for the case on that site by inserting the citation (for example, “[2015] NZSC 135”) in the “Neutral Citation” search field.

Cases that have “NZLR” in the citation (for “New Zealand Law Reports”) usually won’t be available online, but they are available in hard copy in some larger city public libraries, published in orange-brown volumes. For the occasional case that we’ve cited from other report series (like CRNZ, for “Criminal Reports of New Zealand”), you’d need to go to a specialist law library at a university or local Law.

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