Sentencing Act 2002

4 Interpretation

(1)

In this Act, unless the context otherwise requires,—

biometric information has the same meaning as in section 2(1) of the Customs and Excise Act 1996

bodily sample, for a person, means—

(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 means the date specified in section 2

community-based sentence has the meaning given to it in section 44

community work centre means a community work centre established under section 30 of the Corrections Act 2004

controlled drug has the same meaning as in section 2(1) of the Misuse of Drugs Act 1975

counsel, in relation to any person, means a person enrolled as a barrister and solicitor of the High Court of New Zealand who is representing that person in any proceedings

court means any court exercising jurisdiction in criminal cases

Crown organisation has the same meaning as in section 4 of the Crown Organisations (Criminal Liability) Act 2002

curfew address means the address, specified by a court, where an offender must remain during the curfew period

curfew period means the periods, specified by a court, during which an offender sentenced to community detention must remain at the curfew address

detention conditions means the standard conditions of a sentence of home detention set out in section 80C and any special conditions imposed by the court on an offender under section 80D

detention end date means the date on which an offender who is subject to a sentence of home detention ceases to be subject to detention conditions

determinate sentence of imprisonment means a sentence of imprisonment for a fixed term

District Court includes the Youth Court

drug or alcohol condition means a condition of a sentence of supervision, intensive supervision, or home detention, or a post-detention or post-imprisonment condition,—

(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 means a device, connected to a person’s body, that is able to detect the presence in the person’s body of 1 or more of the following:

(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 means a notice under section 8(1) of the Epidemic Preparedness Act 2006 stating that the application of this Act is modified in order to deal with the practical effects of the outbreak of the disease referred to in the notice

forfeiture order has the same meaning as in section 5(1) of the Criminal Proceeds (Recovery) Act 2009

health assessor means a health practitioner who—

(a)

is, or is deemed to be, registered with the Medical Council of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of medicine, and who is a practising psychiatrist; or

(b)

is, or is deemed to be, registered with the Psychologists Board continued by section 114(1)(a) of the Health Practitioners Act 2003 as a practitioner of the profession of psychology

home detention residence means the residence, specified by a court, where an offender sentenced to home detention serves that sentence

hospital means a hospital within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992

immediate family, in relation to a victim,—

(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, in relation to a person,—

(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 in a state of continuing unconsciousness

indeterminate sentence of imprisonment means a sentence of imprisonment for life or a sentence of preventive detention

instrument forfeiture order means an instrument forfeiture order made under 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)

includes, in relation to a qualifying instrument forfeiture offence that is an offence against section 8(1) or (2A) of the Terrorism Suppression Act 2002, funds (as defined in section 4(1) of that Act) allocated for the purpose of committing that offence; and

(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, excluding any severable interest or granting relief

medical laboratory technologist means a health practitioner who is, or is deemed to be, registered with the Medical Sciences Council of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of medical laboratory science

medical officer means—

(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 means a health practitioner who is, or is deemed to be, registered with the Medical Council of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of medicine

minimum period of imprisonment means the period of imprisonment that the court has, under section 86, 86D(4), 86E(4)(a), 89, or 103, ordered that an offender must serve before he or she can be released under subpart 2 of Part 1 of the Parole Act 2002

non-release day means a Saturday, a Sunday, Christmas Day, Boxing Day, New Year’s Day, the second day of January, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign’s birthday, Labour Day, and, in respect of a particular place where an offender is serving a sentence of community detention or home detention, the anniversary day of the region in which that place is situated

nurse means a health practitioner who is, or is deemed to be, registered with the Nursing Council of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of nursing whose scope of practice permits the performance of general nursing functions

offender includes a person who is dealt with or is liable to be dealt with for non-payment of a sum of money, disobedience of a court order, or contempt of court

post-detention conditions means any standard post-detention conditions and special post-detention conditions imposed under section 80N on an offender sentenced to home detention

post-imprisonment condition means a special condition that is imposed under section 93(1) or (2)(b) on an offender sentenced to a short term of imprisonment

prison means a prison established or deemed to be established under the Corrections Act 2004

prison officer means an officer as defined in section 3(1) of the Corrections Act 2004

probation area means an area designated by the chief executive of the Department of Corrections for the administration of release conditions, community-based sentences, sentences of home detention, or orders

probation officer means a person appointed to be, or designated as, a probation officer under section 24 of the Corrections Act 2004; and includes a person exercising only some of the functions or powers of a probation officer under that Act

psychoactive substance has the same meaning as in section 9 of the Psychoactive Substances Act 2013

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, in relation to a sentence of community detention, is the period that the sentence of community detention is in force

short-term sentence has the same meaning as in section 4(1) of the Parole Act 2002

staff member of a prison means a staff member within the meaning of section 3(1) of the Corrections Act 2004

tainted property has the same meaning as in section 5(1) of the Criminal Proceeds (Recovery) Act 2009

testing of a person for a controlled drug, a psychoactive substance, or alcohol includes, without limitation, the person’s permitting the collection for analysis of a bodily sample

trial Judge, in relation to the District Court, means a Judge who holds a warrant under section 14 of the District Court Act 2016 to conduct jury trials

using, in relation to a controlled drug and a person, excludes the person using the controlled drug as a prescription medication in accordance with section 8(2)(c) or (d) of the Misuse of Drugs Act 1975

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 and 83 of the Parole Act 2002):

(ab)

an offender is subject to a sentence of home detention from the date the sentence commences in accordance with section 80W, 80X, or 80Y until the sentence ends in accordance with section 80Z, except when the sentence is suspended under 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, or 76 until the date that it expires in accordance with section 75A:

(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, or 76 until the date that it expires:

(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) or section 78(7).

(3)

For the purposes of this Act, otherwise dealing with an offender or 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, or Part 3 of the Vulnerable Children Act 2014, is that Crown organisation and not the Crown.

Section 4(1) biometric information: inserted, on 22 August 2017, by section 57 of the Enhancing Identity Verification and Border Processes Legislation Act 2017 (2017 No 42).

Section 4(1) bodily sample: inserted, on 15 May 2017, by section 4 of the Sentencing (Drug and Alcohol Testing) Amendment Act 2016 (2016 No 85).

Section 4(1) community work centre: amended, on 1 July 2013, by section 7 of the Sentencing Amendment Act (No 2) 2011 (2011 No 93).

Section 4(1) controlled drug: inserted, on 15 May 2017, by section 4 of the Sentencing (Drug and Alcohol Testing) Amendment Act 2016 (2016 No 85).

Section 4(1) Crown organisation: inserted, on 18 October 2002, by section 28(1) of the Crown Organisations (Criminal Liability) Act 2002 (2002 No 37).

Section 4(1) curfew address: inserted, on 1 October 2007, by section 4(3) of the Sentencing Amendment Act 2007 (2007 No 27).

Section 4(1) curfew period: inserted, on 1 October 2007, by section 4(3) of the Sentencing Amendment Act 2007 (2007 No 27).

Section 4(1) detention conditions: inserted, on 1 October 2007, by section 4(3) of the Sentencing Amendment Act 2007 (2007 No 27).

Section 4(1) detention end date: inserted, on 1 October 2007, by section 4(3) of the Sentencing Amendment Act 2007 (2007 No 27).

Section 4(1) District Court: amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 4(1) drug or alcohol condition: inserted, on 15 May 2017, by section 4 of the Sentencing (Drug and Alcohol Testing) Amendment Act 2016 (2016 No 85).

Section 4(1) drug or alcohol monitoring device: inserted, on 15 May 2017, by section 4 of the Sentencing (Drug and Alcohol Testing) Amendment Act 2016 (2016 No 85).

Section 4(1) epidemic management notice: inserted, on 19 December 2006, by section 4 of the Sentencing Amendment Act (No 2) 2006 (2006 No 89).

Section 4(1) forfeiture order: inserted, on 1 December 2009, by section 6 of the Sentencing Amendment Act 2009 (2009 No 10).

Section 4(1) health assessor: replaced, on 18 September 2004, by section 175(1) of the Health Practitioners Competence Assurance Act 2003 (2003 No 48).

Section 4(1) home detention: repealed, on 1 October 2007, by section 4(1) of the Sentencing Amendment Act 2007 (2007 No 27).

Section 4(1) home detention residence: inserted, on 1 October 2007, by section 4(3) of the Sentencing Amendment Act 2007 (2007 No 27).

Section 4(1) immediate family paragraph (b): replaced, on 26 April 2005, by section 7 of the Relationships (Statutory References) Act 2005 (2005 No 3).

Section 4(1) incapable paragraph (b): amended, on 17 December 2002, by section 53 of the Victims’ Rights Act 2002 (2002 No 39).

Section 4(1) instrument forfeiture order: inserted, on 1 December 2009, by section 6 of the Sentencing Amendment Act 2009 (2009 No 10).

Section 4(1) instrument of crime: inserted, on 1 December 2009, by section 6 of the Sentencing Amendment Act 2009 (2009 No 10).

Section 4(1) instrument of crime paragraph (b): amended, on 7 July 2010, by section 4 of the Sentencing Amendment Act (No 2) 2010 (2010 No 84).

Section 4(1) instrument of crime paragraph (c): inserted, on 7 July 2010, by section 4 of the Sentencing Amendment Act (No 2) 2010 (2010 No 84).

Section 4(1) medical laboratory technologist: inserted, on 15 May 2017, by section 4 of the Sentencing (Drug and Alcohol Testing) Amendment Act 2016 (2016 No 85).

Section 4(1) medical officer: inserted, on 15 May 2017, by section 4 of the Sentencing (Drug and Alcohol Testing) Amendment Act 2016 (2016 No 85).

Section 4(1) medical practitioner: inserted, on 15 May 2017, by section 4 of the Sentencing (Drug and Alcohol Testing) Amendment Act 2016 (2016 No 85).

Section 4(1) minimum period of imprisonment: amended, on 1 June 2010, by section 5 of the Sentencing and Parole Reform Act 2010 (2010 No 33).

Section 4(1) non-release day: inserted, on 1 October 2007, by section 4(3) of the Sentencing Amendment Act 2007 (2007 No 27).

Section 4(1) nurse: inserted, on 15 May 2017, by section 4 of the Sentencing (Drug and Alcohol Testing) Amendment Act 2016 (2016 No 85).

Section 4(1) penal institution: repealed, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

Section 4(1) post-detention conditions: inserted, on 1 October 2007, by section 4(3) of the Sentencing Amendment Act 2007 (2007 No 27).

Section 4(1) post-imprisonment condition: inserted, on 15 May 2017, by section 4 of the Sentencing (Drug and Alcohol Testing) Amendment Act 2016 (2016 No 85).

Section 4(1) prison: inserted, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

Section 4(1) prison officer: inserted, on 18 September 2012, by section 4 of the Sentencing (Aggravating Factors) Amendment Act 2012 (2012 No 74).

Section 4(1) probation area: replaced, on 1 October 2007, by section 4(2) of the Sentencing Amendment Act 2007 (2007 No 27).

Section 4(1) probation officer: amended, on 1 July 2013, by section 7 of the Sentencing Amendment Act (No 2) 2011 (2011 No 93).

Section 4(1) psychoactive substance: inserted, on 15 May 2017, by section 4 of the Sentencing (Drug and Alcohol Testing) Amendment Act 2016 (2016 No 85).

Section 4(1) qualifying instrument forfeiture offence: inserted, on 1 December 2009, by section 6 of the Sentencing Amendment Act 2009 (2009 No 10).

Section 4(1) sentence term: inserted, on 1 October 2007, by section 4(3) of the Sentencing Amendment Act 2007 (2007 No 27).

Section 4(1) sentencing guidelines: repealed, on 3 June 2017, by section 4(2) of the Statutes Repeal Act 2017 (2017 No 23).

Section 4(1) short-term sentence: inserted, on 1 October 2007, by section 4(3) of the Sentencing Amendment Act 2007 (2007 No 27).

Section 4(1) staff member of a penal institution: repealed, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

Section 4(1) staff member of a prison: inserted, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

Section 4(1) tainted property: inserted, on 1 December 2009, by section 6 of the Sentencing Amendment Act 2009 (2009 No 10).

Section 4(1) testing: inserted, on 15 May 2017, by section 4 of the Sentencing (Drug and Alcohol Testing) Amendment Act 2016 (2016 No 85).

Section 4(1) trial Judge: replaced, on 1 July 2013, by section 7 of the Sentencing Amendment Act (No 2) 2011 (2011 No 93).

Section 4(1) trial Judge: amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 4(1) using: inserted, on 15 May 2017, by section 4 of the Sentencing (Drug and Alcohol Testing) Amendment Act 2016 (2016 No 85).

Section 4(1) victim paragraph (a): replaced, on 17 December 2002, by section 53 of the Victims’ Rights Act 2002 (2002 No 39).

Section 4(2)(ab): inserted, on 1 October 2007, by section 4(4) of the Sentencing Amendment Act 2007 (2007 No 27).

Section 4(2)(b): amended, on 1 October 2007, by section 4(5) of the Sentencing Amendment Act 2007 (2007 No 27).

Section 4(2)(ba): inserted, on 1 October 2007, by section 4(6) of the Sentencing Amendment Act 2007 (2007 No 27).

Section 4(4): inserted, on 18 October 2002, by section 28(2) of the Crown Organisations (Criminal Liability) Act 2002 (2002 No 37).

Section 4(4): amended, on 4 April 2016, by section 232 of the Health and Safety at Work Act 2015 (2015 No 70).

Section 4(4): amended, on 1 July 2015, by section 43(2) of the Vulnerable Children Act 2014 (2014 No 40).

Section 4(4): amended, on 31 March 2005, by section 414 of the Building Act 2004 (2004 No 72).