Crimes Amendment Act 2002

5 New sections 98A to 98F and heading substituted

  • The principal Act is amended by repealing section 98A, and substituting the following sections and heading:

    “98A Participation in organised criminal group

    • “(1) Every one is liable to imprisonment for a term not exceeding 5 years who participates (whether as a member or an associate member or prospective member) in an organised criminal group, knowing that it is an organised criminal group, and—

      • “(a) knowing that his or her participation contributes to the occurrence of criminal activity; or

      • “(b) reckless as to whether his or her participation may contribute to the occurrence of criminal activity.

      “(2) For the purposes of this Act, a group is an organised criminal group if it is a group of 3 or more people who have as their objective or one of their objectives—

      • “(a) obtaining material benefits from the commission of offences that are punishable by imprisonment for a term of 4 years or more; or

      • “(b) obtaining material benefits from conduct outside New Zealand that, if it occurred in New Zealand, would constitute the commission of offences that are punishable by imprisonment for a term of 4 years or more; or

      • “(c) the commission of serious violent offences (within the meaning of section 312A(1)) that are punishable by imprisonment for a term of 10 years or more; or

      • “(d) conduct outside New Zealand that, if it occurred in New Zealand, would constitute the commission of serious violent offences (within the meaning of section 312A(1)) that are punishable by imprisonment for a term of 10 years or more.

      “(3) A group of people is capable of being an organised criminal group for the purposes of this Act whether or not—

      • “(a) some of them are subordinates or employees of others; or

      • “(b) only some of the people involved in it at a particular time are involved in the planning, arrangement, or execution at that time of any particular action, activity, or transaction; or

      • “(c) its membership changes from time to time.

    “Smuggling and trafficking in people

    “98B Terms used in sections 98C to 98F

    • In sections 98C to 98F, unless the context otherwise requires,—

      “act of coercion against the person includes—

      • “(a) abducting the person:

      • “(b) using force in respect of the person:

      • “(c) harming the person:

      • “(d) threatening the person (expressly or by implication) with the use of force in respect of, or the harming of, the person or some other person

      “act of deception includes fraudulent action

      “arranges for an unauthorised migrant to be brought to a state includes—

      • “(a) organises or procures the bringing to a state:

      • “(b) recruits for bringing to a state:

      • “(c) carries to a state

      “arranges for an unauthorised migrant to enter a state includes—

      • “(a) organises or procures the entry into a state:

      • “(b) recruits for entry into a state:

      • “(c) carries into a state

      “document includes a thing that is or is intended to be—

      • “(a) attached to a document; or

      • “(b) stamped or otherwise signified on a document

      “for a material benefit, in relation to doing a thing, means—

      • “(a) after having obtained a material benefit for doing the thing; or

      • “(b) intending to obtain a material benefit for doing the thing

      “harming of a person means causing harm of any kind to the person; and (in particular) includes—

      • “(a) causing physical, psychological, or financial harm to the person:

      • “(b) sexually mistreating the person:

      • “(c) causing harm to the person's reputation, status, or prospects

      “unauthorised migrant, in relation to a state, means a person who is neither a citizen of the state nor in possession of all the documents required by or under the law of the state for the person's lawful entry into the state.

    “98C Smuggling migrants

    • “(1) Every one is liable to the penalty stated in subsection (3) who arranges for an unauthorised migrant to enter New Zealand or any other state, if he or she—

      • “(a) does so for a material benefit; and

      • “(b) either knows that the person is, or is reckless as to whether the person is, an unauthorised migrant.

      “(2) Every one is liable to the penalty stated in subsection (3) who arranges for an unauthorised migrant to be brought to New Zealand or any other state, if he or she—

      • “(a) does so for a material benefit; and

      • “(b) either knows that the person is, or is reckless as to whether the person is, an unauthorised migrant; and

      • “(c) either—

        • “(i) knows that the person intends to try to enter the state; or

        • “(ii) is reckless as to whether the person intends to try to enter the state.

      “(3) The penalty is imprisonment for a term not exceeding 20 years, a fine not exceeding $500,000, or both.

      “(4) Proceedings may be brought under subsection (1) even if the unauthorised migrant did not in fact enter the state concerned.

      “(5) Proceedings may be brought under subsection (2) even if the unauthorised migrant was not in fact brought to the state concerned.

    “98D Trafficking in people by means of coercion or deception

    • “(1) Every one is liable to the penalty stated in subsection (2) who—

      • “(a) arranges the entry of a person into New Zealand or any other state by one or more acts of coercion against the person, one or more acts of deception of the person, or both; or

      • “(b) arranges, organises, or procures the reception, concealment, or harbouring in New Zealand or any other state of a person, knowing that the person's entry into New Zealand or that state was arranged by one or more acts of coercion against the person, one or more acts of deception of the person, or both.

      “(2) The penalty is imprisonment for a term not exceeding 20 years, a fine not exceeding $500,000, or both.

      “(3) Proceedings may be brought under this section even if the person coerced or deceived—

      • “(a) did not in fact enter the state concerned; or (as the case may be)

      • “(b) was not in fact received, concealed, or harboured in the state concerned.

      “(4) Proceedings may be brought under this section even if parts of the process by which the person coerced or deceived was brought or came to or towards the state concerned were accomplished without an act of coercion or deception.

    “98E Aggravating factors

    • “(1) When determining the sentence to be imposed on, or other way of dealing with, a person convicted of an offence against section 98C or section 98D, a court must take into account—

      • “(a) whether bodily harm or death (whether to or of a person in respect of whom the offence was committed or some other person) occurred during the commission of the offence:

      • “(b) whether the offence was committed for the benefit of, at the direction of, or in association with, an organised criminal group (within the meaning of section 98A(2)):

      • “(c) whether a person in respect of whom the offence was committed was subjected to inhuman or degrading treatment as a result of the commission of the offence:

      • “(d) if during the proceedings concerned the person was convicted of the same offence in respect of 2 or more people, the number of people in respect of whom the offence was committed.

      “(2) When determining the sentence to be imposed on, or other way of dealing with, a person convicted of an offence against section 98D, a court must also take into account—

      • “(a) whether a person in respect of whom the offence was committed was subjected to exploitation (for example, sexual exploitation, a requirement to undertake forced labour, or the removal of organs) as a result of the commission of the offence:

      • “(b) the age of the person in respect of whom the offence was committed and, in particular, whether the person was under the age of 18 years:

      • “(c) whether the person convicted committed the offence, or took actions that were part of it, for a material benefit.

      “(3) The examples in paragraph (a) of subsection (2) do not limit the generality of that paragraph.

      “(4) This section does not limit the matters that a court may take into account when determining the sentence to be imposed on, or other way of dealing with, a person convicted of an offence against section 98C or section 98D.

    “98F Attorney-General's consent to prosecutions required

    • “(1) Proceedings for an offence against section 98C or section 98D cannot be brought in a New Zealand court without the Attorney-General's consent.

      “(2) A person alleged to have committed an offence against section 98C or section 98D may be arrested, or a warrant for the person's arrest may be issued and executed, and the person be remanded in custody or on bail, even though the Attorney-General's consent to the bringing of proceedings against the person has not been obtained.”