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Criminal Law

categories

Criminal Offence Categories

Criminal offences are categorised into one of four categories depending on the seriousness of the offence. This category influences how your case progresses through the justice system, including the type of trial your case may follow, and the court it may be heard in.

 

Each category of offence is outlined below. The most serious category of offence is category 4:

 

A category 1 offence is an offence that is punishable by a fine only, or punishable by a maximum penalty of a community-based sentence. For example, careless driving. These offences will be heard in the District Court by a judge or community magistrate;

A category 2 offence is an offence punishable by a maximum term of imprisonment of less than 2 years. These offences can be heard in either the District Court or the High Court by a judge (rather than by a judge and a jury);

A category 3 offence is an offence punishable by a term of imprisonment for life or a maximum term of imprisonment of two or more years, excluding any offence listed in schedule 1 to the Act. These offences are generally heard in the District Court. A subset of category 3 offences, called protocol offences, can be heard in the High Court though (see note below for the process). Category 3 offences can be heard by either a judge, or by a judge and jury; and

A category 4 offence is an offence listed in Schedule 1 to the Act. These are the most serious offences, for example, murder or manslaughter. These offences will be heard in the High Court by a judge and jury.

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Note: category 2 and category 3 offences may also be categorised as protocol offences. A protocol offence is an offence that has been established by the Chief High Court Judge and Chief District Court Judge under section 66 of the Act. Offences listed on the protocol will go to the High Court for a High Court judge to determine which court they should be heard in – District or High Court.

children2

Criminal Offences By Children

In New Zealand, child offenders (under the age of 14) are treated differently from adults in the criminal justice system. The country's approach is largely rehabilitative rather than punitive, focusing on the welfare and rehabilitation of young people, acknowledging their developmental stage and the potential for change. Here’s an outline of how the courts deal with child offenders:

1. Age of Criminal Responsibility

  • Children under 10: In New Zealand, children under the age of 10 are not criminally responsible for their actions. This means that they cannot be charged with a criminal offense, regardless of their actions.

  • Children aged 10–13: Children in this age range are criminally responsible, but there are significant protections in place. If a child commits an offense, the court may consider their age and level of maturity. In some cases, the court will need to determine if the child had the "capacity to know right from wrong" at the time of the offense.

2. Youth Justice System (Ages 14–16)

  • Youth Court: Children between the ages of 14 and 16 are dealt with in the Youth Court, which operates under the Children, Young Persons, and Their Families Act 1989 (now referred to as the Oranga Tamariki Act 1989). This court focuses on the welfare of the child and seeks to address the underlying causes of offending (such as family issues, mental health problems, or a history of abuse or neglect) through rehabilitation rather than punishment.

  • Diversion: For less serious offenses, youth offenders may be offered diversion, which is an alternative to formal court proceedings. This could involve the child making amends (e.g., through a letter of apology, community service, or a family group conference) instead of going through the full court process. Diversion is a key element in the system, aiming to divert children away from formal court procedures to encourage restorative justice and rehabilitation.

3. Family Group Conferences (FGCs)

  • Family Group Conferences are a key feature of New Zealand's youth justice system. These are meetings where the child, their family, the victim, and relevant professionals (such as social workers or probation officers) come together to discuss the offending and agree on the best way forward. The goal is to find solutions that promote rehabilitation, hold the child accountable, and repair harm caused by the offense. The outcome may involve a range of actions, such as counseling, education programs, community service, or a supervised care placement.

4. Sentencing Options for Youth Offenders (Ages 14–16)

  • If a child is found guilty of a more serious offense, the Youth Court can impose a range of sentences, including:

    • Supervision: This may involve the child being placed under the supervision of a social worker or in a residential facility for rehabilitation.

    • Community-based sentences: These could include things like community service or attendance at a rehabilitation program.

    • Detention: In cases of more serious offenses, the child may be sentenced to a period of detention in a youth residence or a secure facility. This is considered a last resort, and detention is only used when there is a need for the child to be separated from the community for their own safety or to protect others.

5. Transfer to Adult Court

  • In very serious cases (such as homicide or violent offenses), children aged 12 or older can be transferred to the District Court (which deals with adult offenders). However, this is rare and only occurs in exceptional circumstances. When a child is transferred to an adult court, they are still entitled to special considerations due to their age.

6. Ages 17 and Over

  • Once a young person turns 17, they are treated as an adult under the law, and any offenses they commit are dealt with in the District Court or High Court, depending on the nature of the crime.

7. Rehabilitation Focus

  • A central feature of New Zealand's youth justice system is the focus on rehabilitation and reintegration into society. The courts and other agencies emphasize addressing the root causes of offending and supporting young offenders to make better choices in the future. Programs that address issues like substance abuse, mental health, and family violence are integral parts of this process.

8. Oranga Tamariki - Ministry for Children

  • Oranga Tamariki, the Ministry for Children, plays a central role in the youth justice system. It works closely with the courts to provide social services to children and young people who are at risk or have offended. Oranga Tamariki is responsible for providing care and protection, as well as rehabilitation services.

Summary

In New Zealand, the legal system recognizes that children and young people should be treated differently from adults, particularly because of their developmental stage. The Youth Court and the broader youth justice system are designed to be rehabilitative, with a focus on reintegrating young offenders into society through restorative justice and social support systems. This approach aims to reduce reoffending and address the underlying causes of criminal behavior in young people.

sentencing

Criminal Sentencing In New Zealand

Criminal sentencing laws in New Zealand are governed by a combination of statutes, common law, and sentencing guidelines that aim to ensure that justice is served while also maintaining fairness and proportionality in the punishment of offenders. The primary legislation that governs criminal sentencing in New Zealand is the Criminal Procedure Act 2011 and the Sentencing Act 2002. Here's an overview of the key aspects of the criminal sentencing system in New Zealand:

1. Purpose of Sentencing

The Sentencing Act 2002 outlines the purposes of sentencing, which include:

  • Punishment: Holding the offender accountable for their actions and ensuring the punishment reflects the seriousness of the crime.

  • Rehabilitation: Assisting the offender in reintegrating into society and reducing the likelihood of re-offending.

  • Deterrence: Deterring the offender and others from committing similar offenses.

  • Protection of the public: Ensuring the safety of the community by considering the risk an offender poses.

  • Restorative justice: Encouraging offenders to take responsibility for their actions, make amends, and repair harm caused to victims.

2. Sentencing Principles

New Zealand courts follow a set of principles when determining sentences:

  • Proportionality: The sentence should reflect the gravity of the offense and the culpability of the offender.

  • Totality: When an offender is convicted of multiple offenses, the total sentence should reflect the overall seriousness of the offending.

  • Sentences for similar offenses: Consistency is important, so the courts aim to impose sentences in line with those given for similar crimes.

3. Types of Sentences

The courts have several options when imposing a sentence, including:

  • Imprisonment: A custodial sentence, which can range from short terms to life imprisonment, depending on the crime's seriousness.

  • Community-based sentences: These can include community work, home detention, and supervision, where offenders are required to work for the benefit of the community, undergo rehabilitation, or remain confined to their homes.

  • Monetary penalties: Fines may be imposed for certain offenses, typically less serious ones.

  • Reparation: Offenders may be required to pay restitution or compensation to the victim.

  • Discharges: In some cases, an offender may be discharged without a formal sentence, particularly if the offense was minor or if the offender is unlikely to re-offend.

  • Suspended sentences: A sentence can be suspended (postponed), subject to certain conditions, meaning the offender may avoid serving time in prison if they comply with those conditions.

4. Aggravating and Mitigating Factors

The court will consider both aggravating and mitigating factors when determining the sentence:

  • Aggravating factors include things like the use of violence, the vulnerability of the victim, premeditation, or offending while on bail.

  • Mitigating factors might include the offender’s age, remorse, guilty plea, mental health issues, or previous good character.

5. The Role of the Victim

Victims are given the opportunity to have their voices heard during the sentencing process. This is often done through Victim Impact Statements, where the victim can describe the physical, emotional, and financial impact the crime has had on their lives.

6. Sentencing Discounts for Guilty Pleas

In New Zealand, offenders can receive a reduction in their sentence if they plead guilty early in the process, reflecting their willingness to take responsibility for their actions and avoid the need for a trial. The discount can range from 10% to 25% or more, depending on the timing of the plea and the circumstances.

7. Parole

Offenders who are sentenced to imprisonment may be eligible for parole once they have served a certain portion of their sentence. The Parole Board will assess whether the offender poses a risk to the community and whether they are showing signs of rehabilitation. For most offenders, parole eligibility arises after serving one-third of their sentence.

8. Sentencing for Youth Offenders

New Zealand has a separate system for dealing with young offenders, primarily under the Children, Young Persons, and Their Families Act 1989. Young people aged 10 to 16 who offend may be dealt with by youth courts, and a focus is placed on rehabilitation, reintegration, and restorative justice, rather than punishment. However, serious offenses committed by those aged 16 or 17 can be tried in adult court.

9. Life Imprisonment and Parole for Serious Offenders

For particularly serious crimes, such as murder, the court may impose a life sentence. Life sentences do not always mean the offender will spend their entire life in prison. After serving a minimum non-parole period (usually between 10 and 17 years for murder), the offender may apply for parole.

However, for some particularly heinous crimes, such as murder with aggravating factors (e.g., multiple victims, torture, etc.), the court can impose a life without parole sentence, which means the offender will never be eligible for release.

10. Restorative Justice

New Zealand has incorporated restorative justice practices into the sentencing framework, where offenders are encouraged to take responsibility for their actions, meet with their victims (if appropriate), and work towards repairing the harm caused. Restorative justice conferences may occur before or after sentencing, and they can play a role in determining an appropriate sentence.

11. Sentencing Guidelines

In practice, judges in New Zealand often use sentencing guidelines and decisions from previous cases to ensure consistency. The Sentencing Council (established in 2022) plays a role in developing guidelines to assist courts in making appropriate sentencing decisions.

Electronic monitoring (EM) is used in New Zealand as part of the criminal justice system, primarily to monitor individuals who are serving sentences that involve some form of community-based supervision, such as home detention or parole. The technology typically involves a GPS-enabled ankle bracelet that tracks the wearer’s location and ensures compliance with the terms of their sentence.

Key Aspects of Electronic Monitoring in New Zealand:

1. Home Detention

Electronic monitoring is most commonly associated with home detention, which is a community-based sentence. Home detention allows offenders to serve part of their sentence in the community under strict conditions, but they must remain confined to their home for most of the day and night. This is often used for offenders who would otherwise be sentenced to a term of imprisonment but are deemed suitable for rehabilitation in the community.

  • Conditions of Home Detention: In addition to the electronic monitoring, the offender must comply with specific conditions such as curfews, restrictions on who they can associate with, and attendance at rehabilitation programs (e.g., alcohol or drug counseling).

  • Monitoring: The ankle bracelet tracks the offender’s movement in real time and transmits the data to a monitoring center. If the person leaves the home or goes outside the designated area without permission, an alert is triggered, and authorities can respond immediately.

  • Duration: Home detention sentences typically range from 2 to 12 months, though the exact duration depends on the severity of the crime and the offender's risk level.

2. Parole and Early Release

Electronic monitoring is also used for individuals who are granted parole after serving part of their prison sentence. In these cases, EM is used to ensure that offenders comply with the conditions of their parole while they reintegrate into society.

  • Conditions of Parole: Parole conditions often include restrictions on where the person can go, who they can associate with, and requirements to attend treatment programs or work.

  • Risk Assessment: The use of EM for parolees is often determined by an assessment of the offender’s risk to the community. Offenders who are considered higher risk (such as violent offenders or those with a history of re-offending) may have stricter monitoring conditions, including more frequent GPS tracking or curfews.

3. GPS Monitoring

The ankle bracelet used for electronic monitoring includes GPS technology that allows authorities to track the offender's location in real time. The device can also have geofencing capabilities, meaning that the offender can be restricted to specific locations (e.g., their home or a workplace). If the individual violates these boundaries, the monitoring center is alerted, and authorities can take appropriate action.

  • Real-time Data: The system provides live data on the offender's movements, ensuring that they are complying with the conditions of their sentence.

  • Geofencing: The offender can be confined to a specific geographical area, and if they enter a restricted area or fail to return to their designated location (such as their home), an alert is immediately sent to the authorities.

4. Legislative Framework

The use of electronic monitoring is governed by several pieces of legislation, including:

  • The Sentencing Act 2002: This Act provides the legal framework for sentencing, including the use of home detention and electronic monitoring as an alternative to imprisonment.

  • The Parole Act 2002: This Act governs the conditions of parole, including the potential use of electronic monitoring as part of the parole conditions.

  • The Corrections Act 2004: The Corrections Act outlines the role of the Department of Corrections in managing offenders, including overseeing the use of electronic monitoring and home detention.

The legislation allows the courts to impose electronic monitoring in appropriate cases, typically for offenders who would otherwise be incarcerated but are considered suitable for release into the community under supervision.

5. Benefits of Electronic Monitoring

Electronic monitoring has several benefits, particularly as an alternative to imprisonment:

  • Reduced Prison Overcrowding: Electronic monitoring is one of the strategies used to manage prison populations and prevent overcrowding. By allowing certain offenders to serve part of their sentence in the community, the pressure on the prison system is alleviated.

  • Rehabilitation and Reintegration: Home detention and electronic monitoring give offenders the opportunity to maintain family ties, employment, and participate in rehabilitation programs. This approach is often seen as more conducive to rehabilitation than imprisonment.

  • Cost-Effective: The costs of electronic monitoring are lower than the costs associated with imprisoning an individual. It is often seen as a more cost-effective alternative, especially for non-violent offenders or those who pose a low risk to the public.

6. Concerns and Criticisms

While electronic monitoring is seen as a useful tool in some cases, there are also concerns and criticisms about its use:

  • Potential for Abuse or Manipulation: Some critics argue that the system can be manipulated or that offenders may find ways to circumvent the monitoring, particularly in cases where they are only monitored during certain hours or while at home.

  • Privacy Issues: There are concerns about the potential for invasion of privacy, as the GPS tracking can be used to monitor the movements of individuals more extensively than what might be appropriate in some cases.

  • Psychological Impact: Being confined to home detention for long periods can have negative psychological effects, such as feelings of isolation, and may impact the offender's ability to reintegrate socially.

  • Efficacy and Success: The effectiveness of electronic monitoring in preventing re-offending is debated. While some studies suggest that it can reduce recidivism by providing offenders with more opportunities for rehabilitation, others argue that it may not be enough to address the underlying causes of criminal behavior, such as substance abuse or mental health issues.

7. Recent Developments

In recent years, New Zealand has seen a push for more technology-driven solutions in the criminal justice system, including expanding the use of electronic monitoring. However, there is also increasing scrutiny of the broader societal implications of electronic surveillance.

For example:

  • The Sentencing Act 2002 was amended in 2014 to allow wider use of electronic monitoring for offenders on home detention or parole.

  • Enhanced Monitoring: In some cases, offenders may be subject to more stringent forms of monitoring, such as continuous alcohol monitoring or curfews in addition to GPS tracking.

Conclusion

Electronic monitoring is an important tool in New Zealand's criminal justice system, offering an alternative to imprisonment and providing a way to supervise offenders in the community. It is primarily used for home detention and parolees, and helps manage prison populations, support rehabilitation, and reduce recidivism. However, while it has many benefits, there are also concerns about its effectiveness, privacy implications, and the potential for psychological strain on offenders. The use of electronic monitoring continues to evolve as part of ongoing reforms in New Zealand’s approach to criminal justice.

police

Don't Speak to the Police

The standard advice most lawyers take is do not speak to the police. While that is generally my default response there are occasions when you should speak to the police. If you are being questioned by the police and they are asserting you were at a particular place and you were not, then tell them. Evidence given at the start of an investigation without a person “lawyering up” is given a lot of weight in the court. 

I once represented a man who was about to be charged with a sexual assault but when the police officer during the interview gave us the time date and place he turned to me and said I was not there. After a private discussion, I gave the police officer some details and she was able to verify that he was 400km away at the time of the offence

If you're in New Zealand and you believe you may be charged with a criminal offense, it's important to approach the situation with caution. Here are some key points to consider:

  1. Right to Silence: In New Zealand, you have the legal right to remain silent if questioned by the police. You don't have to answer questions unless you are under arrest or required by law to provide certain information (like your name or address). Police may try to get you to speak, but you are under no obligation to talk about the alleged offense without legal advice.

  2. Legal Representation: Before speaking to the police, it's highly advisable to seek legal counsel. A lawyer can help you understand your rights and the potential consequences of speaking to the police. If you can't afford a lawyer, you are entitled to a duty solicitor (a lawyer provided by the state) to help you during any police interview.

  3. Police Interview: If you are arrested or detained and the police want to interview you, they must inform you of your rights, including the right to remain silent and the right to legal representation. You can request a lawyer at any stage of the process. Having legal representation during an interview can prevent you from inadvertently making statements that could be used against you later.

  4. What Happens if You Speak: While it might feel like talking to the police will help clear things up, anything you say can be used against you in court. Even if you're innocent, it's wise to have a lawyer present to ensure that your rights are protected and your statements are accurately recorded.

Steps You Should Take:

  • Contact a lawyer as soon as you suspect you may be charged.

  • Do not speak to the police about the alleged crime before consulting with your lawyer.

  • If you are arrested, exercise your right to remain silent and request a lawyer before answering any questions.

Ultimately, speaking with the police without legal advice can be risky, as it may inadvertently make your situation more complicated. Seeking professional legal advice is the safest course of action. Please contact me on pd@blomfieldlegal.com

fraud

Fraud Charges in New Zealand

n New Zealand, fraud-related offences are primarily addressed under the Crimes Act 1961 and the Crimes (Fraud) Amendment Act 2002, as well as various other statutes depending on the nature of the fraud. Below are the key types of fraud offences in New Zealand criminal law:

1. False Pretences (Section 240 of the Crimes Act 1961)

This offence involves intentionally deceiving someone to gain a benefit, such as money or property. The defendant must make a false representation (or pretence) with the intent to deceive, and the victim must be misled as a result.

  • Penalties: Up to 10 years’ imprisonment.

2. Obtaining by Deception (Section 246 of the Crimes Act 1961)

This offence occurs when a person obtains property, services, or any benefit through deception. This could include tricking someone into giving up money, property, or information, or using false documents.

  • Penalties: Up to 7 years' imprisonment.

3. Forgery (Section 256 of the Crimes Act 1961)

Forgery involves the creation, alteration, or use of false documents with the intent to deceive someone. This includes creating fake signatures, altering contracts or records, or using counterfeit documents to gain an advantage.

  • Penalties: Up to 10 years’ imprisonment.

4. Using Forged Documents (Section 257 of the Crimes Act 1961)

This offence occurs when a person uses a forged document with the intention to deceive. For example, presenting a fake passport, forged cheque, or altered contract to a third party with the intent to gain a benefit.

  • Penalties: Up to 10 years’ imprisonment.

5. Dishonestly Using a Document (Section 229A of the Crimes Act 1961)

This offence involves dishonestly using a document to mislead or deceive someone for personal gain. It is broader than forgery and can involve situations where a person uses a document in a dishonest way but doesn't necessarily create it or alter it.

  • Penalties: Up to 7 years’ imprisonment.

6. Money Laundering (Section 243 of the Crimes Act 1961)

Money laundering is the process of concealing the origins of illegally obtained money, typically by means of transfers or financial transactions. This can include activities that aim to "clean" money obtained through fraud or other criminal activities.

  • Penalties: Up to 7 years’ imprisonment.

7. Theft by a Person in a Special Relationship (Section 220 of the Crimes Act 1961)

This offence occurs when a person in a position of trust (e.g., an employee, accountant, or director) dishonestly appropriates property or money that they are responsible for or have access to. It’s a form of breach of trust.

  • Penalties: Up to 7 years’ imprisonment.

8. Breach of Trust (Section 239 of the Crimes Act 1961)

This offence involves someone in a position of trust, such as an agent, fiduciary, or employee, using their position to fraudulently misappropriate or misuse money or property. Unlike theft, the focus is on a breach of the trust placed in the individual by their role.

  • Penalties: Up to 7 years' imprisonment.

9. CREDIT Card Fraud (Under the Crimes Act and the Credit Contracts and Consumer Finance Act)

Fraudulent use of a credit card, or obtaining a credit card under false pretences, can lead to serious criminal liability. This can include using someone else’s credit card without authorization or applying for credit using false information.

  • Penalties: Typically up to 7 years' imprisonment, depending on the amount involved and the specific circumstances.

10. Tax Fraud (Under the Tax Administration Act 1994)

Tax fraud involves deliberately falsifying information to reduce tax liability or evade tax payments. This could include underreporting income, inflating expenses, or falsifying documents to avoid paying the correct amount of tax.

  • Penalties: Fines or imprisonment (up to 7 years) depending on the scale and seriousness of the fraud.

11. Computer Crime and Fraud (Under the Crimes Act 1961 and the Harmful Digital Communications Act 2015)

This includes crimes related to the use of computers to commit fraud, such as hacking into accounts, altering digital records, or using malware or phishing schemes to steal personal data or money.

  • Penalties: Varies depending on the specific offence, but can include significant imprisonment terms, often up to 10 years.

12. Defrauding the Public or Investors (Under the Financial Markets Conduct Act 2013)

This is a regulatory offence that involves misleading or deceptive conduct related to the sale of financial products or securities. Fraudulent conduct related to investment schemes, share trading, or public offerings falls under this category.

  • Penalties: Can include both criminal charges (up to 10 years' imprisonment) and civil penalties (such as fines and compensation).

13. Careless or Reckless Misleading Conduct (Under the Fair Trading Act 1986)

While this Act primarily deals with consumer protection in commercial transactions, offences under this legislation can also involve fraud or dishonest practices. An individual or business can be prosecuted for misleading conduct, which may involve fraud when the conduct is intentional.

  • Penalties: Fines or imprisonment (up to 5 years).

Key Points About New Zealand's Fraud Laws:

  • Fraud is considered a dishonest activity, with an intent to deceive for personal gain.

  • The penalties for fraud can be quite severe, particularly for large-scale or complex fraud schemes.

  • Fraud can involve various methods, including false representations, manipulation of documents, and digital crimes.

  • Many fraud-related offences have specific statutory definitions, which require that the prosecution prove the intent behind the fraudulent actions.

Enforcement and Prosecution

Fraud offences are prosecuted by the Crown, and offenders may face both criminal penalties and restitution (recovery of stolen property or compensation to victims). The Serious Fraud Office (SFO) is responsible for investigating and prosecuting serious fraud cases in New Zealand, while local police investigate and prosecute other fraud-related crimes.

Fraud offences in New Zealand are prosecuted through a formal legal process, and the prosecution is usually carried out by the Crown, which represents the state. Depending on the complexity and seriousness of the offence, fraud cases can be prosecuted by different agencies, such as the Serious Fraud Office (SFO), New Zealand Police, or other regulatory bodies. Below is an overview of how fraud-related offences are prosecuted in New Zealand.

1. Investigation Stage

Before a fraud case goes to court, there is an investigation to gather evidence. The nature of the investigation can vary depending on the type of fraud committed.

  • Serious Fraud Office (SFO): The SFO investigates and prosecutes complex, high-value frauds, often involving significant financial losses, professional negligence, or financial market manipulation. The SFO has specialized teams of financial investigators and lawyers who work on cases involving large-scale fraud, such as corporate fraud, money laundering, and securities fraud.

  • New Zealand Police: For less complex or smaller fraud cases, local police may be responsible for investigation and prosecution. Police may work with forensic accountants, digital forensics experts, or other professionals to gather the necessary evidence for a fraud case.

  • Regulatory Bodies: For fraud involving businesses, such as false advertising or misleading conduct under the Fair Trading Act 1986, agencies like Consumer Protection or the Commerce Commission may be involved in the investigation. Similarly, the Financial Markets Authority (FMA) handles cases related to fraud in financial markets, like insider trading or fraudulent investment schemes.

Investigation Methods:

  • Financial and Document Analysis: Forensic accountants or investigators review financial records, bank statements, accounting ledgers, and other documents to trace fraud. They look for inconsistencies or signs of falsification.

  • Digital Forensics: In cases involving cybercrime or online fraud (e.g., phishing, credit card fraud), investigators may use digital forensics to trace email exchanges, IP addresses, and digital records.

  • Witness Testimony and Surveillance: Interviews with victims, witnesses, or experts, and surveillance techniques may be used to build a case.

2. Charging the Offender

Once sufficient evidence is gathered, the Crown (through the police, SFO, or another relevant agency) may decide to charge an individual with a fraud-related offence. A prosecutor will assess whether there is enough evidence to bring charges and whether it is in the public interest to prosecute the individual.

For minor cases, a charge sheet is prepared, outlining the offence. In more serious cases, the charge may be laid through a bill of indictment, and the case is usually referred to the High Court if it involves serious or complex fraud.

  • Types of Charges: The charge will be specific to the type of fraud that was committed. For example, someone charged with using false pretences would face a charge under Section 240 of the Crimes Act 1961, while someone involved in tax fraud would face charges under the Tax Administration Act 1994.

3. Pre-Trial Procedures

Before the trial, there are various legal procedures that may take place:

  • Court Hearings: The defendant will appear in court for an initial appearance, where the charges are formally read. If the case is serious, the defendant will be remanded in custody or granted bail.

  • Plea Bargaining: In some cases, the prosecution and defense may negotiate a plea agreement. The defendant may agree to plead guilty to certain charges in exchange for a lesser penalty. The prosecutor will consider whether the guilty plea is in the public interest and whether it is a fair outcome.

  • Pre-Trial Applications: Either the defense or the prosecution may file pre-trial applications, such as motions to dismiss the case or suppress certain evidence. For example, the defense may argue that the evidence gathered was obtained unlawfully or is inadmissible.

4. Trial Process

Once the case proceeds to trial, it will be heard by a judge or, in more serious cases, a jury. Fraud trials can be complex and may take some time to resolve, especially when there is a large volume of evidence to review.

  • Court of First Instance: Fraud cases are usually tried in the District Court or High Court, depending on the seriousness of the offence. The District Court hears less serious fraud cases, while the High Court deals with more complex or high-value cases.

  • Evidence: Both the prosecution and the defense present evidence and call witnesses. The prosecution must prove the fraud charge beyond a reasonable doubt. In fraud cases, this often involves showing that the defendant intentionally deceived someone and obtained a benefit through that deception.

  • Expert Witnesses: In fraud cases, expert witnesses, such as forensic accountants, financial experts, or digital forensics specialists, may be called to provide evidence regarding financial transactions or the manipulation of documents.

5. Sentencing

If the defendant is found guilty of fraud, they will be sentenced based on the severity of the crime, the amount of loss caused, and any mitigating or aggravating factors.

  • Sentencing Factors: The judge will consider the defendant's level of involvement, whether the fraud was premeditated or opportunistic, the scale of the financial loss, and any prior criminal history.

  • Penalties: Penalties for fraud vary, but for serious offences like false pretences or forgery, sentences can be up to 10 years' imprisonment. For less serious fraud offences, the defendant may receive a sentence of community service, home detention, or a fine, especially if the case involves a relatively small amount of money or the offender is a first-time offender.

  • Restitution and Compensation: In addition to imprisonment or fines, the court may order the defendant to repay the victims of the fraud or compensate them for losses.

6. Appeals

After sentencing, the defendant has the right to appeal the conviction or sentence if they believe there was a legal error or the sentence was too harsh. Appeals are usually heard in the Court of Appeal. The Crown can also appeal if they believe the sentence is too lenient or if there was an error in law during the trial.

Agencies Involved in Prosecution of Fraud:

  1. Serious Fraud Office (SFO):

    • Investigates and prosecutes large-scale, complex frauds, especially those involving significant amounts of money or corporate entities.

    • The SFO works closely with other law enforcement agencies, financial regulators, and international bodies when necessary.

  2. New Zealand Police:

    • Investigates smaller-scale frauds and criminal fraud activities, such as credit card fraud, identity theft, or scams.

    • Local police are responsible for prosecuting these cases in the District Court.

  3. Financial Markets Authority (FMA):

    • Handles fraud in the financial markets, such as investment fraud, securities fraud, and breaches of the Financial Markets Conduct Act 2013.

  4. Other Regulatory Agencies (e.g., Commerce Commission, Inland Revenue Department):

    • The Commerce Commission investigates consumer protection and misleading advertising.

    • The Inland Revenue Department prosecutes tax fraud cases, including tax evasion and the use of fraudulent tax claims.

 

Conclusion

Prosecuting fraud offences in New Zealand involves a detailed and often complex process. It starts with thorough investigation by the relevant authorities, followed by the formal laying of charges, pre-trial procedures, and ultimately the trial. The prosecution must prove beyond a reasonable doubt that the defendant committed the offence with intent to deceive and for personal gain. Sentences for fraud offences can be severe, particularly for large-scale or sophisticated fraud, and may include imprisonment, fines, and restitution to victims.

Let me know if you'd like more detail on any specific stage of the prosecution process or any related issue! pd@blomfieldlegal.com 

firearms

New Zealand Has Strict Firearm Laws

New Zealand has strict firearm laws, with regulations designed to balance public safety with the rights of law-abiding firearm owners. The country's laws on firearms are governed primarily by the Arms Act 1983, the Arms Regulations 1992, and subsequent amendments, including those following major incidents like the Christchurch mosque shootings in 2019. Here's an overview of the key aspects of New Zealand's firearm laws:

1. Firearm Categories

New Zealand's firearms are categorized into different classes based on their type and intended use. These categories are important because they determine what firearms are legally available to the public and who is allowed to own them.

  • Category A: This includes standard sporting rifles, shotguns, and certain types of air rifles. These are the most commonly owned firearms in New Zealand.

  • Category B: Firearms that are not restricted, such as more powerful rifles.

  • Category C: Restricted firearms, including those used for military and law enforcement purposes. These are harder to obtain and typically require special licenses.

  • Category D: Military-style semi-automatics (MSSAs), which are highly restricted. Following the Christchurch mosque shooting in 2019, these firearms were banned in New Zealand, and existing owners were required to hand them in or register them.

2. Licensing and Eligibility

To own a firearm in New Zealand, individuals must hold a firearms licence. The licensing process is relatively stringent and includes:

  • Minimum Age: The minimum age to apply for a firearm licence is 16 years old (with parental consent required for those under 18).

  • Background Checks: Applicants undergo a thorough background check by the police, including criminal history, mental health evaluations, and domestic violence checks.

  • Training: Applicants must complete a firearms safety course, which includes both theory and practical training, to ensure they understand firearm safety, operation, and legal responsibilities.

  • Referees: Applicants must provide the names of at least two referees who can vouch for their suitability to own a firearm.

  • Police Interview: In some cases, the police may interview applicants to assess their suitability to possess firearms.

3. Types of Firearms and Restrictions

Certain firearms are banned or heavily restricted in New Zealand:

  • Military-Style Semi-Automatic Firearms (MSSAs): Following the 2019 Christchurch shooting, semi-automatic rifles, and other "military-style" firearms were banned, including AR-15s and similar models. Owners of these firearms were given a period to surrender them or apply for a license to keep them.

  • Handguns: Handguns are legal but highly restricted. They are generally only available to those who are involved in specific shooting sports (e.g., competitive shooting) or have a specific purpose for owning them (e.g., pest control). Handgun ownership requires a Category E licence.

4. Firearm Registration

New Zealand does not require firearms to be registered, except for restricted firearms (Category C and D), which must be registered with the police. However, all firearms owners are required to have their firearms securely stored, following strict regulations regarding the safety of firearms in homes or other locations.

5. Storage and Security Requirements

Firearms owners must comply with strict rules on the safe storage of firearms. This includes:

  • Safe Storage: Firearms must be stored in a locked cabinet or safe that is impervious to unauthorized access. Ammunition must also be stored separately, although it can be kept in the same safe under certain conditions.

  • Regular Inspections: The police may inspect the storage arrangements to ensure compliance with safety regulations.

6. Firearm Use and Carrying

The use of firearms is also regulated:

  • Hunting and Sporting Use: Most firearms are owned for hunting, pest control, or sport shooting. Hunting is a popular activity in New Zealand, and there are regulations regarding where hunting is allowed and the types of firearms that can be used for specific animals.

  • Carrying Firearms: Firearms are generally not allowed to be carried in public, and carrying a firearm without a valid reason can result in criminal charges. Carrying firearms in public is only permissible under certain circumstances, such as for licensed security personnel or hunters in specific areas.

7. Penalties for Violations

Violations of New Zealand’s firearms laws can result in severe penalties. These include:

  • Unlawful Possession: Possessing a firearm without the required licence or possessing prohibited firearms can lead to imprisonment, fines, and confiscation of the firearm.

  • Unsafe Storage: Failing to safely store firearms can result in fines, imprisonment, and the revocation of the firearm licence.

  • Illegal Use: Using a firearm to commit a crime (e.g., assault, robbery) can result in serious criminal charges, including lengthy prison sentences.

8. Post-2019 Reforms

After the Christchurch mosque shootings, the New Zealand government enacted several reforms to make the country’s firearms laws even stricter. Key reforms included:

  • Ban on MSSAs: The government introduced a ban on military-style semi-automatic firearms (MSSAs) and assault rifles. A buyback scheme was implemented to allow owners to hand in these firearms in exchange for compensation.

  • Tighter Regulations: The government also passed laws requiring tougher vetting and increased regulation around gun ownership, including more frequent background checks and greater police oversight.

  • Buyback Scheme: The government allocated millions of dollars to purchase firearms from owners who were affected by the ban on MSSAs.

Conclusion

New Zealand has a comprehensive and strict approach to firearm regulation, with a focus on ensuring firearms are only in the hands of responsible, law-abiding individuals. While the country has a significant number of gun owners, the laws are designed to minimize the risks of firearm misuse and promote public safety. If you are interested in owning a firearm in New Zealand, it is crucial to follow all legal requirements, including licensing, training, and safe storage regulations. Contact me in relation to any firearm offence pd@blomfieldlegal.com 

searchme

Can the Police Search Me

In New Zealand, police have certain powers to search individuals, premises, and vehicles under various laws. These powers are generally outlined in the Search and Surveillance Act 2012, along with specific powers granted under other legislation, such as the Criminal Investigations (Bodily Samples) Act 1995, and the Misuse of Drugs Act 1975. Below is an overview of the main police powers to search in New Zealand:

1. Search with a Warrant

Police can search premises or property with a search warrant, which is issued by a District Court judge or a Justice of the Peace. To obtain a warrant, police must show reasonable grounds that an offense has been committed and that evidence of the offense is likely to be found at the location being searched.

  • Search of Premises: A search warrant can be granted for the search of residential or commercial premises, vehicles, or land.

  • Scope of Warrant: The warrant will specify the places or items that can be searched for and seized.

2. Search Without a Warrant

In certain situations, police have the authority to conduct a search without a warrant. This includes:

  • Search of a Person: Police can search a person without a warrant if they have reasonable grounds to believe the person has committed an offense, is in the process of committing an offense, or has items on them that are related to an offense.

  • Search of a Vehicle: Police can stop and search a vehicle without a warrant if they suspect the vehicle is being used in the commission of a crime or contains evidence of a crime.

  • Arrest or Detention: If a person is lawfully arrested or detained, the police may search the individual and the area within their immediate control (i.e., to prevent harm, locate weapons, or preserve evidence).

  • **Search under the Search and Surveillance Act 2012: This Act gives police specific powers to search without a warrant in circumstances where an immediate threat or risk is present. For example, they can search if they have reasonable grounds to believe there is evidence relating to a serious offense.

3. Stop and Search Powers

  • Police Can Stop and Search Vehicles: Police have the power to stop any vehicle and search it without a warrant, particularly in situations where they believe drugs, weapons, or stolen goods might be present.

  • Random Stops: Police have the authority to stop and search vehicles and persons in certain circumstances, such as to prevent crime or enforce compliance with specific laws (e.g., under drug or alcohol testing rules).

4. Searching for Drugs (Misuse of Drugs Act 1975)

Under the Misuse of Drugs Act, police have enhanced powers to search for and seize drugs. If police suspect someone is carrying drugs, they may conduct a search of that person, their bag, or their vehicle, even without a warrant.

5. Search of Personal Belongings and Property

  • Police may also search personal property, such as bags or electronic devices, if they have reasonable grounds to suspect it contains evidence of an offense. For instance, they might search a person’s phone or laptop if they believe it holds evidence of criminal activity.

6. Searches in Special Circumstances

There are specific circumstances that grant police additional powers:

  • Bodily Searches: Under the Criminal Investigations (Bodily Samples) Act 1995, police can compel individuals to provide bodily samples (e.g., DNA, blood) if they are suspected of having committed a serious offense.

  • Public Places: Police can search persons in certain public spaces, such as airports or other restricted areas, if they suspect criminal activity.

7. Rights During a Search

If police conduct a search, individuals have certain rights:

  • Right to be Informed: Police must inform a person of the reason for the search and their legal authority to carry it out.

  • Reasonable Search: The search must be reasonable, and the person must be treated respectfully.

  • Seizure of Property: Any items seized during a search must be directly related to the investigation and may be used as evidence in court.

8. Rules Governing Police Searches

  • Police must follow specific legal procedures during searches to ensure that they are not infringing on an individual's rights.

  • Evidence obtained through an unlawful search (i.e., without proper legal authority or a reasonable basis) may be excluded from trial.

9. Challenge to Police Search

If someone believes a search was unlawful or their rights were violated, they can challenge the search in court. This might involve questioning the legality of the search or seizure in relation to the warrant, lack of consent, or failure to meet the necessary legal requirements.

 

While these are the broad principles, there are specific provisions in New Zealand law that may provide further guidance, such as the Terrorism Suppression Act 2002 or laws surrounding the enforcement of immigration controls. Always consult legal advice if you are involved in or witness a search, as the application of police powers can vary depending on the circumstances. Any issues please contact me on pd@blomfieldlegal.com

publicdisorder

Public Disorder Offences in New Zealand

Public affray offences originated in the United Kingdom, and they can best be described as offences that cause fear in spectators nearby. Similar offences exist in Australia, Canada as well as New Zealand.

In New Zealand, public affray offences are generally governed by section 195 of the Crimes Act 1961. An affray occurs when two or more people engage in violent behaviour that causes fear or disturbance in a public place. This can involve fighting, threats of violence, or disorderly conduct that endangers public safety or causes public alarm.

Key Points of Affray in New Zealand:

  1. Definition of Affray:

    • An affray is committed when two or more people fight, or engage in violent conduct, in a way that would cause a reasonable person to fear for their safety or the safety of others.

    • The violence must occur in a public place, or in such a manner that the public can witness the violence or feel threatened by it.

  2. Criminal Offence:

    • Under section 195 of the Crimes Act 1961, it is an offence for any person who, while in a public place, engages in a violent act or threatens violence in a way that causes others to fear for their safety.

    • An affray is not limited to just physical fighting, but can also include verbal threats or actions that create the impression of imminent violence.

  3. Punishment:

    • The offence of affray is considered a summary offence (less serious), punishable by up to three months imprisonment or a fine of up to $4,000.

    • In some cases, if the affray is part of a larger violent situation, the penalties could be more severe.

  4. Other Related Offences:

    • Assault: If the conduct in question escalates to physical harm, it may also be classified as an assault, which carries its own legal penalties.

    • Disorderly behaviour: This can occur when someone behaves in a way that is disruptive, offensive, or likely to cause distress to others in a public place.

Examples of Public Affray:

  • Two or more people physically fighting in a busy public area like a street, park, or shopping mall.

  • A violent confrontation that threatens public safety, even if no physical harm occurs (e.g., wielding a weapon in a threatening manner or making violent threats that cause public fear).

Affray is intended to capture situations where violence or the threat of violence occurs in a public setting, disturbing the peace or endangering bystanders. If the act is serious enough, other offences like assault or causing grievous bodily harm could also apply.

If you need more detailed information or an example of a specific case, feel free to ask! pd@blomfieldlegal.com 

rules

Rules and Procedures in a Criminal Trial

In New Zealand, the rules and procedures of a criminal trial are governed by a combination of statutes, common law principles, and procedural rules. The key pieces of legislation that outline criminal trial procedures include the Criminal Procedure Act 2011, the Summary Proceedings Act 1957, and other relevant laws. Here is an overview of the typical steps and rules involved in a criminal trial in New Zealand:

1. Charges and Police Investigation

  • The process begins when a person is suspected of committing a criminal offence, and the police investigate the matter. If the investigation leads to sufficient evidence, the police will lay charges.

  • Filing Charges: Charges are generally filed in a District Court or High Court depending on the seriousness of the offence (e.g., minor offences in District Court, serious offences in High Court).

2. Arrest and Court Appearance

  • If the individual is arrested, they are brought before a court as soon as possible (usually within 48 hours).

  • At the first appearance, the court will inform the accused of the charges and allow them to enter a plea (guilty, not guilty, or no contest). If the accused pleads guilty, sentencing can occur immediately.

  • If the plea is not guilty, the case moves forward to trial.

3. Bail Hearing

  • The accused may apply for bail. Bail allows the accused to be released from custody while awaiting trial, often with conditions.

  • The judge or court will consider factors such as flight risk, the severity of the crime, and whether there are risks to public safety when deciding on bail.

4. Pre-Trial Procedure

  • Committal Hearing: In serious cases (e.g., indictable offences), the case may go through a committal hearing to decide whether there is enough evidence for a trial.

  • Plea Bargaining: In some cases, the defense and prosecution may negotiate a plea deal, where the accused agrees to plead guilty to a lesser charge in exchange for a reduced sentence.

5. The Trial Process

  • Criminal trials in New Zealand may take place in the District Court (for less serious offences) or High Court (for serious offences, such as murder).

  • Jury or Judge-Only Trial: Most serious offences are tried by a jury (12 members). In some cases (e.g., complex fraud or where the defendant waives their right to a jury), the trial may be before a judge alone.

Trial Stages:

  • Opening Statements:

    • The prosecution and defense each give an opening statement to the court, outlining the case and what they intend to prove.

  • Prosecution Case:

    • The prosecution presents its evidence first, including calling witnesses and presenting exhibits.

    • The defense has the opportunity to cross-examine the prosecution’s witnesses.

  • Defense Case:

    • The defense may present its own evidence and call witnesses.

    • The prosecution can cross-examine the defense’s witnesses.

  • Closing Statements:

    • After all the evidence has been presented, the prosecution and defense make their closing arguments, summarizing the key points of their case and highlighting weaknesses in the opposing side’s case.

  • Jury Deliberation (for jury trials):

    • After closing statements, the jury deliberates in private to decide on a verdict (guilty or not guilty). The jury must reach a unanimous decision, but if they cannot agree, a retrial may be ordered.

    • For some serious cases, a majority verdict may be acceptable.

  • Judge's Role:

    • In a judge-only trial, the judge decides both the verdict and sentencing. In jury trials, the judge provides legal guidance to the jury but does not participate in deliberations or the verdict.

6. Verdict and Sentencing

  • Verdict: The judge or jury delivers the verdict after considering all the evidence. If the defendant is found guilty, the judge will proceed to sentencing. If the defendant is found not guilty, they are acquitted, and the case is closed.

  • Sentencing: If guilty, the judge will determine an appropriate sentence based on the facts of the case, any mitigating or aggravating factors, and the range of penalties for the specific offence. Common sentences in New Zealand include imprisonment, community service, fines, or home detention. The victim's impact statements may also be considered during sentencing.

7. Appeals

  • If the defendant or the prosecution is dissatisfied with the outcome, they can appeal the verdict or sentence to a higher court.

  • Appeals can be made on legal grounds, such as errors in the trial process, misapplication of the law, or inappropriate sentencing.

8. Legal Representation

  • Right to Legal Counsel: Defendants have the right to legal representation (either private or public). If the defendant cannot afford a lawyer, a public defender may be appointed.

  • In more serious cases, having legal representation is essential, as criminal trials can be complex.

9. Special Considerations

  • Youth Court: For individuals under 17 years old, criminal cases are generally heard in the Youth Court, which focuses on rehabilitation and the welfare of the young offender.

  • Mental Health Defenses: If an accused person claims a mental disorder or incapacity, this may affect their ability to stand trial or the outcome of the case. The court may order psychiatric assessments.

  • Cultural Considerations: New Zealand has a strong emphasis on considering cultural factors, especially for Māori defendants. The Ngā Kōti Rangatahi (Youth Courts) and Whānau Courts can be used to take into account cultural practices and community-based sentences.

Key Principles in New Zealand Criminal Law

  • Presumption of Innocence: The accused is presumed innocent until proven guilty.

  • Burden of Proof: The burden of proving the case lies with the prosecution. The defense is not required to prove anything.

  • Right to a Fair Trial: All accused individuals are entitled to a fair and public trial.

  • Double Jeopardy: A person cannot be tried for the same crime twice, once acquitted or convicted.

  • Right to Silence: The accused has the right to remain silent and cannot be compelled to testify against themselves.

Conclusion

Criminal trials in New Zealand follow a clear set of procedures designed to ensure fairness, transparency, and justice for all parties involved. Whether in the District Court or High Court, trials aim to determine guilt beyond a reasonable doubt, with the possibility of appeal if errors are identified during the trial process.

selfdefence

Self Defence

In New Zealand, self-defence laws are designed to allow individuals to protect themselves, others, and their property from harm. The legal principles governing self-defence are outlined in the Crimes Act 1961, and there are a few important factors to consider when determining whether an act of self-defence is lawful. Here's an overview:

1. General Principles of Self-Defence

Under Section 48 of the Crimes Act 1961, a person may use force to defend themselves or others if:

  • They believe they are in imminent danger of harm or threat of harm.

  • The response (use of force) is reasonable in the circumstances.

This means that self-defence is justified if the person reasonably believes they are at risk and their actions are proportionate to the threat they face.

2. Imminence of Threat

The threat or danger must be immediate or imminent. You cannot use force to preempt a future threat, nor can you use force after the threat has passed. The threat must be real and present when the action is taken.

3. Proportionality

The level of force used in self-defence must be proportionate to the threat or danger faced. This means that the force used to defend yourself should not be excessive or unreasonable. For example, it would likely not be justified to use a weapon if the threat was only a mild verbal confrontation.

4. Pre-Emptive Strikes and Retreat

  • Pre-Emptive Strikes: In certain circumstances, a person can act preemptively if they believe a threat is about to occur.

  • Duty to Retreat: New Zealand law does not have a strict "duty to retreat" like some other countries. However, if it’s possible to avoid the confrontation by retreating (especially when the force used could be excessive), it may be considered when assessing whether the use of force was reasonable. That said, if retreating is not an option or if doing so would put you at greater risk, the law allows you to use force in self-defence.

5. Defending Others

The law also allows for the use of force to protect other people (Section 48 of the Crimes Act). If you believe another person is in immediate danger, you can use reasonable force to protect them.

6. Defending Property

The law provides more limited grounds for defending property. You may use reasonable force to prevent the unlawful entry into your home or to stop theft or damage to your property. However, using excessive force in property defence may not be justified.

7. Mistake of Fact

If a person honestly believes they are in danger, even if that belief is mistaken, their actions may still be considered justifiable self-defence. However, the belief must be reasonable—if the belief is clearly unreasonable, the use of force may not be justified.

8. Excessive Force

If the force used exceeds what is necessary to defend oneself, the individual could be charged with assault or other offences. For example, using deadly force in a situation where only minor force was required could lead to charges of manslaughter or murder if the individual is not able to prove their actions were justified.

9. Self-Defence and Mental State

Courts will also consider the mental state of the person acting in self-defence. Factors such as stress, fear, or confusion may influence whether the response was reasonable in the context of the threat faced.

10. Legal Consequences

If an individual uses force in self-defence and is charged with a crime, such as assault or manslaughter, they may raise the defence of self-defence in court. The court will assess the reasonableness of the force used, the circumstances leading to the use of force, and whether the defendant genuinely believed they were at risk.

If self-defence is proven in court, the defendant may be acquitted of charges. However, if the force was excessive or unreasonable, the individual may be found guilty.

Key Points to Remember:

  • Reasonable belief of imminent danger is necessary.

  • Proportionality is key in how much force is used.

  • You do not have to retreat, but excessive force could result in legal consequences.

  • Mistaken belief in being under threat might still justify self-defence, as long as it was reasonable.

It’s important to note that self-defence laws are interpreted by the courts on a case-by-case basis, and factors such as the severity of the threat, the actions of the parties involved, and the surrounding circumstances all play a role in determining the legality of the response.

If you're in a situation where you feel the need for self-defence or are concerned about legal implications, it's always a good idea to seek legal advice.

  1. The most common defence to a person charged with an offence of violence is self-defence. Self defence listed at Section 48 of the Crimes Act 1961 and states that everyone is justified in using in physical violence in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.

  2. This essentially outlines a two-stage test firstly the circumstances to which the person is face and secondly that the violence they use is both reasonable and proportionate. That a person can only use as much force in a physical violence situation that could reasonably be expected to defend themselves and no more.

  3. People charged with offences of violence are often charged because while they needed to defend themselves and their actions initially were lawful. They have used too much force, and their actions were ultimately disproportionate. 

  4. The test is ultimately both a subjective and objective test. That is to say that the decision maker taking into considerations the accused was facing at the time of the allegation (subjective) must also consider what a reasonable person would do in such circumstances (objective). 

  5. It can be a mitigating factor during a sentence hearing if the offender has found himself forced to physically defend themselves but their actions have been found to be excessive.

 

If you have been charged with an offence of violence, please contact me to discuss your matter at pd@blomfieldlegal.com

sexualoffences

Sexual Offences

Sexual offence laws in New Zealand are designed to protect individuals from a range of sexual crimes, focusing on consent, the protection of minors, and the safety and rights of victims. Below is an overview of key sexual offence laws in New Zealand, as per the Crimes Act 1961, the Criminal Procedure Act 2011, and other relevant statutes.

1. Consent

  • Consent is central to the definition of sexual offences. In New Zealand, a person can only be legally involved in sexual activity if they give their free and voluntary consent. Consent must be given knowingly, and it can be withdrawn at any time.

  • Age of consent: The legal age for consent in New Zealand is 16 years old. Sexual activity with someone under 16 is considered an offence, even if the minor agrees to or initiates the activity.

2. Sexual Offences Against Adults

Rape (Crimes Act 1961, Section 128)

  • Rape occurs when a person has sexual intercourse with another person without their consent, and the offender uses force, threats, or intimidation, or takes advantage of the victim’s incapacity (due to unconsciousness, intoxication, or other factors).

  • Penalties for rape can be severe, with a maximum sentence of 20 years in prison.

Sexual Violation (Crimes Act 1961, Section 128A)

  • Sexual violation is a broader term that includes any non-consensual sexual act, such as forced penetration, oral sex, or other sexual contact.

  • Penalties vary depending on the nature of the offence but can include up to 20 years in prison for serious cases.

Indecent Assault (Crimes Act 1961, Section 135)

  • Indecent assault involves touching someone in a sexual manner without their consent. This can include groping or other forms of unwanted physical contact.

  • Penalties can range from 2 to 7 years in prison, depending on the severity.

3. Sexual Offences Against Children and Vulnerable Persons

Sexual Connection with a Young Person (Crimes Act 1961, Section 134)

  • This offence relates to sexual activity with a person under the age of 16. It is an offence even if the child consents to the act, as minors are not legally capable of consenting to sexual activity.

  • Penalties for sexual connection with a young person can include up to 14 years in prison.

Sexual Exploitation of a Young Person (Crimes Act 1961, Section 131)

  • This involves situations where an adult uses their position of power or authority to exploit a young person for sexual purposes. This can include bribery, coercion, or manipulation.

  • Penalties may be up to 14 years in prison.

Indecent Acts Involving Children (Crimes Act 1961, Section 132)

  • This section covers situations where an adult commits indecent acts, such as touching or showing inappropriate material to a child, even if there is no direct sexual intercourse.

  • The maximum sentence for this offence is 10 years in prison.

4. Special Laws Relating to Vulnerable Persons

  • In cases where the victim is incapacitated due to mental impairment, age, or other vulnerabilities, the laws regarding consent and sexual violation are even more stringent. Offenders who exploit such vulnerabilities can face increased penalties.

5. Sexual Harassment

  • Sexual harassment is also prohibited in New Zealand, and can include unwelcome sexual advances, requests for sexual favours, or any other verbal or physical conduct of a sexual nature that creates a hostile or intimidating environment.

  • Victims can file complaints through the Human Rights Commission or take civil legal action, with remedies that may include compensation and orders for the harasser to cease the harassment.

6. Offences Involving Child Exploitation or Pornography

  • Child pornography and the exploitation of children for sexual purposes is illegal under New Zealand law. This includes the possession, production, and distribution of child sexual abuse material.

  • Penalties for these offences can include up to 14 years in prison, and may involve lifelong registration on the Sex Offender Register.

7. Sex Offender Register

  • New Zealand has a Sex Offender Register, which tracks individuals convicted of serious sexual crimes. Individuals convicted of certain sexual offences are required to register and provide personal details to authorities. The registry is not publicly accessible but can be used to track reoffenders.

8. Reform and Legal Developments

  • New Zealand has made various changes to its sexual offence laws to better protect victims, particularly in terms of dealing with historical sexual abuse, improving the handling of complaints, and better support for survivors.

  • For example, “victim impact statements” are commonly used in sentencing hearings, giving victims the opportunity to share the effect of the crime on their lives.

9. Recent Legislation

  • In recent years, New Zealand has seen efforts to modernise sexual offence laws, including greater emphasis on protecting victims of sexual violence, especially within families and relationships.

  • In 2020, the Sexual Violence Legislation Bill was passed, which introduced changes to how sexual violence cases are prosecuted, including better access to legal support for victims.

10. Police and Reporting

  • Victims of sexual violence in New Zealand are encouraged to report incidents to the police. New Zealand has a Sexual Violence Centre to provide support to survivors, including legal advice, counselling, and other services.

  • Online reporting is available in some cases, and police are trained to handle sensitive cases with care and confidentiality.

Conclusion

New Zealand’s laws on sexual offences are comprehensive, focusing on the importance of consent, protection of vulnerable individuals (particularly minors), and preventing sexual exploitation and violence. Victims of sexual offences are encouraged to seek support, and New Zealand has systems in place to assist both the legal process and the healing of survivors.

violenceoffenses

Violence Offences in New Zealand

In New Zealand, violence offences are broadly categorized under both criminal law and family law, covering a wide range of conduct from physical assault to more serious violent crimes like homicide. Below are the main types of violence offences in New Zealand:

1. Assault Offences

Assault is the most common form of violent offence and can be classified into several categories based on the severity of the violence involved:

  • Common Assault (Section 196 of the Crimes Act 1961)
    This is the least serious form of assault, involving any intentional or reckless physical force or threat of force against another person without their consent. For example, pushing or slapping someone.

  • Assault with a Weapon (Section 202A of the Crimes Act 1961)
    This involves assaulting someone using a weapon or an object that can cause harm, such as a bat, knife, or any other item used to inflict injury.

  • Aggravated Assault (Section 190 of the Crimes Act 1961)
    This is a more serious assault where harm is caused, or where the assault involves additional factors like use of a weapon, or if the victim is vulnerable (e.g., a child or elderly person). It is punishable by more severe penalties.

  • Assault on a Child (Section 194 of the Crimes Act 1961)
    Any physical assault against a child is considered more serious under the law. This includes physical punishment, harm, or neglect of children by a caregiver.

  • Sexual Assault (Sexual Offences under the Crimes Act 1961)
    This includes a range of sexual offences, including rape, sexual violation, and other forms of non-consensual sexual contact.

2. Sexual Violence Offences

  • Rape (Section 128 of the Crimes Act 1961)
    Rape is the unlawful sexual penetration of a person without their consent. It is one of the most serious sexual violence offences.

  • Sexual Violation (Section 128A of the Crimes Act 1961)
    This refers to any sexual violation where penetration or non-penetrative sexual contact occurs without consent.

  • Indecent Assault (Section 135 of the Crimes Act 1961)
    This involves any form of sexual touching or other acts of indecency without the victim's consent.

  • Sexual Exploitation of Children and Young People (Section 142A-142E of the Crimes Act 1961)
    These offences involve sexual exploitation or abuse of minors, including grooming, making or distributing child exploitation material, and engaging in sexual conduct with minors.

3. Homicide Offences

  • Murder (Section 167 of the Crimes Act 1961)
    Murder is the intentional and unlawful killing of another person. It carries a life sentence, with the possibility of parole after a minimum period, typically 17 years.

  • Manslaughter (Section 160 of the Crimes Act 1961)
    Manslaughter occurs when a person kills someone without the intent to do so, but where their actions were reckless or negligent. It is considered a lesser offence than murder but still carries severe penalties.

  • Infanticide (Section 178 of the Crimes Act 1961)
    This applies when a mother kills her child under the age of 12 months due to mental disturbance caused by childbirth.

4. Family Violence Offences

Family violence includes physical, emotional, and psychological abuse that takes place within family or intimate relationships. In addition to criminal assault, the following offences are specific to family violence:

  • Contravention of a Protection Order (Family Violence Act 2018)
    A protection order is an order issued by a court to protect a person from family violence. Violating such an order, such as continuing to harass or abuse the protected person, is a criminal offence.

  • Psychological or Emotional Abuse (Family Violence Act 2018)
    While harder to quantify, emotional or psychological abuse, including controlling behaviour, manipulation, threats, and coercion, can also be considered a form of family violence.

  • Stalking (Section 8 of the Harassment Act 1997)
    Stalking involves repeated and persistent behaviour that causes fear or distress to the victim. It can include following, surveillance, or unwanted communication.

5. Robbery and Aggravated Robbery

  • Robbery (Section 234 of the Crimes Act 1961)
    Robbery is when force or the threat of force is used to steal property from another person. It may involve physical violence, such as hitting or threatening the victim.

  • Aggravated Robbery (Section 235 of the Crimes Act 1961)
    This is a more serious version of robbery, where a weapon is used, or where violence results in serious injury to the victim.

6. Threats and Intimidation

  • Threatening to Kill or Do Serious Harm (Section 306 of the Crimes Act 1961)
    This involves threatening to kill someone or inflict serious harm. While it does not involve actual violence, it is still a serious criminal offence.

  • Intimidation (Section 21 of the Summary Offences Act 1981)
    Intimidation involves making threats or engaging in actions meant to instill fear or control another person through violent or coercive means.

7. Harassment

  • Harassment (Harassment Act 1997)
    Harassment refers to repeated actions that cause distress to an individual. This can include physical actions, but is often related to persistent unwanted communication, surveillance, or other forms of psychological harm.

8. Other Violent Offences

  • Wounding (Section 188 of the Crimes Act 1961)
    This involves intentionally or recklessly causing a person to suffer a wound, which can be any injury that breaks the skin.

  • Injuring with Intent (Section 189 of the Crimes Act 1961)
    This involves causing injury to someone with the intent to harm them, but not necessarily killing them.

  • Aiding or Abetting Violence (Section 66 of the Crimes Act 1961)
    Any person who assists in the commission of a violent crime can be charged with aiding or abetting.

 

Key Legal Protections

New Zealand also has various legal provisions that aim to protect victims of violence, especially within the context of family violence. The Family Violence Act 2018 and the Domestic Violence Act 1995 provide mechanisms like protection orders, non-contact orders, and services for victims of domestic abuse.

 

These offences are governed by the Crimes Act 1961, the Family Violence Act 2018, and other relevant pieces of legislation. Penalties for violent offences range from fines and community service to lengthy prison sentences, depending on the severity of the crime. Please contact me at pd@blomfieldlegal.com 

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