Sentencing and Parole Reform Bill

5 New sections 86A to 86H and heading inserted

• (1) The following heading and sections are inserted after section 86:

  “Additional consequences for repeated serious violent offending

  “86A Interpretation

  • In this section and in sections 86B to 86H, unless the context otherwise requires,—

    “record of final warning, in relation to an offender, means a record of a warning that the offender has under section 86C(3) or 86E(7) 86E(8)

    “record of first warning, in relation to an offender, means a record of a warning that the offender has under section 86B(3)

    “serious violent offence means an offence against any of the following provisions of the Crimes Act 1961:

    • “(1) section 128B (sexual violation):

    • “(2) section 129 (attempted sexual violation and assault with intent to commit sexual violation):

    • “(3) section 129A(1) (sexual connection with consent induced by threat):

    • “(5) section 131(1) (sexual connection with dependent family member under 18 years):

    • “(6) section 131(2) (attempted sexual connection with dependent family member under 18 years):

    • “(7) section 132(1) (sexual connection with child):

    • “(8) section 132(2) (attempted sexual connection with child):

    • “(9) section 132(3) (indecent act on child):

    • “(10) section 134(1) (sexual connection with young person):

    • “(11) section 134(2) (attempted sexual connection with young person):

    • “(12) section 134(3) (indecent act on young person):

    • “(13) section 135 (indecent assault):

    • “(14) section 138(1) (exploitative sexual connection with person with significant impairment):

    • “(15) section 138(2) (attempted exploitative sexual connection with person with significant impairment):

    • “(16) section 142A (compelling indecent act with animal):

    • “(16a) section 144A (sexual conduct with children and young people outside New Zealand):

    • “(17) section 172 (murder):

    • “(18) section 173 (attempted murder):

    • “(18a) section 174 (counselling or attempting to procure murder):

    • “(18b) section 175 (conspiracy to murder):

    • “(19) section 177 (manslaughter):

    • “(20) section 188(1) (wounding with intent to cause grievous bodily harm):

    • “(21) section 188(2) (wounding with intent to injure):

    • “(22) section 189(1) (injuring with intent to cause grievous bodily harm):

    • “(23) section 191(1) (aggravated wounding):

    • “(24) section 191(2) (aggravated injury):

    • “(25) section 198(1) (discharging firearm or doing dangerous act with intent to do grievous bodily harm):

    • “(26) section 198(2) (discharging firearm or doing dangerous act with intent to injure):

    • “(27) section 198A(1) (using firearm against law enforcement officer, etc):

    • “(28) section 198A(2) (using firearm with intent to resist arrest or detention):

    • “(29) section 198B (commission of crime with firearm):

    • “(30) section 200(1) (poisoning with intent to cause grievous bodily harm):

    • “(30a) section 201 (infecting with disease):

    • “(31) section 208 (abduction for purposes of marriage or sexual connection):

    • “(32) section 209 (kidnapping):

    • “(33) section 232(1) (aggravated burglary):

    • “(34) section 234 (robbery):

    • “(35) section 235 (aggravated robbery):

    • “(36) section 236(1) (causing grievous bodily harm with intent to rob or assault with intent to rob in specified circumstances):

    • “(37) section 236(2) (assault with intent to rob)

    “stage-1 offence means an offence that—

    • “(a) is a serious violent offence; and

    • “(b) was committed by an offender at a time when the offender—

      • “(i) did not have a record of first warning given under section 86B; and

      • “(ii) was 18 years of age or over

    “stage-2 offence means an offence that—

    • “(a) is a serious violent offence; and

    • “(b) was committed by an offender at a time when the offender had a record of first warning (in relation to 1 or more offences) but did not have a record of final warning

    “stage-3 offence means an offence that—

    • “(a) is a serious violent offence; and

    • “(b) was committed by an offender at a time when the offender had a record of final warning (in relation to 1 or more offences).

  “86B Stage-1 offence: offender given first warning

  • “(1) When a court, on any occasion, convicts an offender of 1 or more stage-1 offences, the court must at the same time—

    • “(a) warn the offender of the consequences if the offender is convicted of any serious violent offence committed after that warning (whether or not that further serious violent offence is different in kind from any stage-1 offence for which the offender is being convicted); and

    • “(b) give the offender a written notice that sets out the substance of the warning given to the offender under paragraph (a); and

    • “(c) record, in relation to each stage-1 offence, that the offender has been warned in accordance with paragraph (a).

    “(2) It is not necessary for a Judge to use a particular form of words in giving the warning.

    “(3) On the entry of a record under subsection (1)(c), the offender has, in relation to each stage-1 offence (for which a record is entered), a record of first warning.

    “(4) The court must give the offender a written notice that sets out the consequences if the offender is convicted of any serious violent offence committed after the warning given under subsection (1)(a).

  “86C Stage-2 offence other than murder: offender given final warning and must serve full term of imprisonment

  • “(1) When, on any occasion, a court convicts an offender of 1 or more stage-2 offences other than murder, the court must at the same time—

    • “(a) warn the offender of the consequences if the offender is convicted of any serious violent offence committed after that warning (whether or not that further serious violent offence is different in kind from any stage-2 offence for which the offender is being convicted); and

    • “(b) give the offender a written notice that sets out the substance of the warning given to the offender under paragraph (a); and

    • “(c) record, in relation to each stage-2 offence, that the offender has been warned in accordance with paragraph (a).

    “(2) It is not necessary for a Judge to use a particular form of words in giving the warning.

    “(3) On the entry of a record under subsection (1)(c), the offender has, in relation to each stage-2 offence for which a record is entered, a record of a final warning.

    “(4) If the sentence imposed on the offender for any stage-2 offences is a determinate sentence of imprisonment, the court must order that the offender serve the full term of the sentence and, accordingly, that the offender,—

    • “(a) in the case of a long-term sentence (within the meaning of the Parole Act 2002), serve the sentence without parole; and

    • “(b) in the case of a short-term sentence (within the meaning of the Parole Act 2002), not be released before the expiry of the sentence.

    “(5) If the sentence imposed on the offender for 1 or more stage-2 offences is a short-term sentence (within the meaning of the Parole Act 2002) and any conditions are imposed on the offender under section 93, then, despite anything in that section, those conditions take effect on the sentence expiry date (within the meaning of the Parole Act 2002).

    “(6) If, but for the application of this section, the court would have ordered, under section 86, that the offender serve a minimum period of imprisonment, the court must state, with reasons, the period that it would have imposed.

    “(7) The court must give the offender a written notice that sets out the consequences if the offender is convicted of any serious violent offence committed after the warning given under subsection (1)(a).

  “86D Stage-3 offences other than murder: offender sentenced to maximum term of imprisonment

  • “(1) Despite any other enactment,—

    • “(a) a trial for a stage-3 offence must be held in the High Court; and

    • “(a) a defendant who is committed for trial for a stage-3 offence must be committed to the High Court for that trial; and

    • “(b) no court other than the High Court, or the Court of Appeal or the Supreme Court on an appeal, may sentence an offender for a stage-3 offence.

    “(2) Despite any other enactment, if, on any occasion, an offender is convicted of 1 or more stage-3 offences other than murder, the High Court must sentence the offender to the maximum term of imprisonment prescribed for each offence.

    “(3) When the Court sentences the offender under subsection (2), the Court must order that the offender serve the sentence without parole unless the Court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to make the order.

    “(4) Despite subsection (3), if the Court sentences the offender for manslaughter, the Court must order that the offender serve a minimum period of imprisonment of not less than 20 years unless the Court considers that, given the circumstances of the offence and the offender, a minimum period of that duration would be manifestly unjust, in which case the Court must order that the offender serve a minimum period of imprisonment of not less than 10 years.

    “(5) If the Court does not make an order under subsection (3) or, where subsection (4) applies, does not order a minimum period of not less than 20 years under subsection (4), the Court must give written reasons for not doing so.

    “(6) If the Court imposes a sentence under subsection (2), any other sentence of imprisonment imposed on the same occasion (whether for a stage-3 offence or for any other kind of offence) must be imposed concurrently.

    “(7) Despite subsection (2), this section does not preclude the Court from imposing, under section 87, a sentence of preventive detention on the offender, and if the Court imposes such a sentence on the offender,—

    • “(a) subsections (2) to (5) do not apply; and

    • “(b) the minimum period of imprisonment that the Court imposes on the offender under section 89(1) must not be less than the term of imprisonment that the Court would have imposed under subsection (2), unless the Court is satisfied that, given the circumstances of the offence and the offender, the imposition of that minimum period would be manifestly unjust.

    “(8) If, in reliance on subsection (7)(b), the Court imposes a minimum period of imprisonment that is less than the term of imprisonment that the Court would have imposed under subsection (2), the Court must give written reasons for doing so.

  “86E When murder is a stage-2 or stage-3 offence

  • “(1) This section applies if—

    • “(a) an offender is convicted of murder; and

    • “(b) that murder is a stage-2 offence or a stage-3 offence.

    “(2) If this section applies, the court must—

    • “(a) sentence the offender to imprisonment for life for that murder; and

    • “(b) order that the offender serve that sentence of imprisonment for life without parole unless the court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to do so.

    “(3) If the court does not make an order under subsection (2)(b), the court must give written reasons for not doing so.

    “(4) If the court does not make an order under subsection (2)(b), the court must,—

    • “(a) if that murder is a stage-3 offence, impose a minimum period of imprisonment of not less than 20 years unless the court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to do so; and

    • “(b) if that murder is a stage-2 offence, or if the court is satisfied that a minimum period of imprisonment of not less than 20 years under paragraph (a) would be manifestly unjust, order that the offender serve a minimum period of imprisonment in accordance with section 103.

    “(5) If, in the case of a stage-3 offence, the court imposes under subsection (4)(a) a minimum period of imprisonment of less than 20 years, the court must give written reasons for doing so.

    “(6) If, in the case of a stage-2 offence, the court makes an order under subsection (4)(b) and the offender does not, at the time of sentencing, have a record of final warning, the court must—

    • “(a) warn the offender of the consequences if the offender is convicted of any serious violent offence committed after that warning; and

    • “(b) give the offender a written notice that sets out the substance of the warning given to the offender under paragraph (a); and

    • “(c) record that the offender has been warned in accordance with paragraph (a).

    “(7) It is not necessary for a Judge to use a particular form of words in giving the warning.

    “(8) On the entry of a record under subsection (6)(c), the offender has a record of final warning.

    “(9) The court must give the offender a written notice that sets out the consequences if the offender is convicted of any serious violent offence committed after the warning given under subsection (6)(a).

  “86F Continuing effect of warnings

  • “(1) An offender continues to have a record of first warning or a record of final warning regardless of whether the offender has served or otherwise completed the sentence imposed on the offender for the offence (including, without limitation, any sentence imposed under section 86D or 86E) to which the record relates.

    “(2) However, an offender ceases to have a record of first warning or a record of final warning if, on an appeal, an appellate court—

    • “(a) quashes all the convictions to which the relevant record relates; and

    • “(b) does not replace 1 or more of those quashed convictions with a conviction for another serious violent offence.

    “(3) If the appellate court quashes a conviction to which a record of first warning or a record of final warning relates, the appellate court must order that the record of the warning be cancelled in respect of that conviction.

    “(4) If the appellate court replaces a conviction (the quashed conviction) to which a record of first warning or a record of final warning relates with a conviction for another serious violent offence (the substituted conviction), then any record of first warning or final warning that previously related to the quashed conviction is deemed—

    • “(a) to relate to the substituted conviction; and

    • “(b) to have taken effect on the date on which the record that related to the quashed conviction took effect.

    “(5) If, in accordance with subsection (2), an offender has ceased to have a record of first warning but continues to have a record of final warning, then—

    • “(a) the appellate court must order that a record of first warning replace that record of final warning; and

    • “(b) that replacement record of first warning is deemed to have taken effect on the date on which the record of final warning took effect.

    “(6) Subsection (3) is subject to subsection (4).

  “86FA Consequences of cancellation of record on later sentences

  • “(1) This section applies where,—

    • “(a) in accordance with section 86F(2), an offender ceases to have a record of first warning or a record of final warning or both (the previous record); and

    • “(b) the offender continues to be subject to a sentence (a later sentence) that was imposed on the offender under any of sections 86C, 86D, or 86E for serious violent offences committed when the offender had the previous record.

    “(2) The appellate court must take the actions described in this section that are applicable to the case or remit the matter to the court that sentenced the offender with a direction to take those actions.

    “(3) If the later sentence or an order relating to the later sentence or both would not have been imposed or made but for the previous record, the appropriate court—

    • “(a) must set aside the later sentence and any order relating to the later sentence; and

    • “(b) must replace the sentence and any order set aside with a sentence and any order that the court would have imposed or made if the offender had not been subject to the previous record; and

    • “(c) may make any consequential orders that the court considers just.

    “(3) The appropriate court must take the following actions:

    • “(a) if the later sentence would not have been imposed but for the previous record, the court must set aside the later sentence and replace it with a sentence that the court would have imposed had the offender not been subject to the previous record:

    • “(b) if any order relating to the later sentence would not have been made but for the previous record, the court must cancel the order and, where appropriate, replace it with an order that the court would have made had the offender not been subject to the previous record:

    • “(c) if the court considers it just to make any consequential orders, the court must make those orders.

    “(4) Without limiting the generality of subsection (3), if an offender who continues to be subject to a later sentence for 1 or more stage-2 offences ceases, in accordance with section 86F(2), to have a record of first warning, the appropriate court must—

    • “(a) cancel any order imposed on the offender in respect of those stage-2 offences under section 86C(4); and

    • “(b) if the court considers it appropriate to do so, impose a minimum period of imprisonment under section 86 in respect of those stage-2 offences, taking into account any indication given by the sentencing court under section 86C(6); and

    • “(c) in the case of a stage-2 offence that is murder, cancel any sentence or order imposed on the offender under section 86E(2) and re-sentence the offender under subpart 4 of this Part.

    “(5) Without limiting the generality of subsection (3), if an offender who continues to be subject to a later sentence for stage-3 offences ceases, in accordance with section 86F(2), to have either a record of first warning or a record of final warning, the appropriate court must,—

    • “(a) if the offender has been sentenced under section 86D, re-sentence the offender for the offence concerned by applying section 86C; and

    • “(b) in the case of a stage-3 offence that is murder, cancel any order made under section 86E(4)(a) and replace it with an order under section 86E(4)(b).

    “(6) Without limiting the generality of subsection (3), if an offender who continues to be subject to a later sentence for stage-3 convictions ceases, in accordance with section 86F(2), to have both a record of first warning and a record of final warning, the court must,—

    • “(a) if the offender has been sentenced under section 86D, re-sentence the offender for the offence concerned:

    • “(b) in the case of a stage-3 offence that is murder, cancel any sentence or order imposed on the offender under section 86E(2) and any order under section 86E(4) and re-sentence the offender under subpart 4 of this Part:

    • “(c) administer a first warning to the offender by taking the action described in section 86B(2) section 86B(1).

  “86G Appeal against orders relating to imprisonment

  • For the purposes of Part 13 of the Crimes Act 1961, an order under section 86D(3) or (4), or 86E(2)(b) or (4) is (4)(a), is a sentence.

  “86H Sections 86B to 86E prevail over inconsistent provisions

  • A provision contained in sections 86B to 86E that is inconsistent with another provision of this Act or the Parole Act 2002 prevails over the other provision, to the extent of the inconsistency.”

  (2) Sections 86C(6) and 86FA(4)(b) of the principal Act (as inserted by subsection (1) of this section) expire and are repealed on the commencement of section 46 of the Sentencing Amendment Act 2007.