Sentencing (Reinstating Three Strikes) Amendment Act 2024
Sentencing (Reinstating Three Strikes) Amendment Act 2024
Public Act |
2024 No 54 |
|
Date of assent |
17 December 2024 |
|
Commencement |
see section 2 |
Contents
The Parliament of New Zealand enacts as follows:
1 Title
This Act is the Sentencing (Reinstating Three Strikes) Amendment Act 2024.
2 Commencement
(1)
This Act comes into force 6 months after Royal assent.
(2)
However, sections 21(2), 23(2), and 24 come into force on the day after Royal assent.
Part 1 Amendments to Sentencing Act 2002
3 Principal Act
This Part amends the Sentencing Act 2002.
4 Section 4 amended (Interpretation)
(1)
In section 4(1), definition of minimum period of imprisonment, after “86,”
, insert “86P(2), 86S(2),”
.
(2)
In section 4(1), insert, in its appropriate alphabetical order:
permanent court record has the same meaning as in section 5 of the Criminal Procedure Act 2011
5 Section 8 amended (Principles of sentencing or otherwise dealing with offenders)
In section 8, insert as subsections (2) and (3):
(2)
In addition, in sentencing an offender for a stage-2 offence or a stage-3 offence, the court must, if a manifestly unjust exception applies, nevertheless regard the offence as worthy of a stern sentencing response.
(3)
In this section,—
manifestly unjust exception means an exception set out in section 86O(2), 86P(2), 86R(2), (3), or (6), or 86S(2)
stage-2 offence has the same meaning as in section 86J
stage-3 offence has the same meaning as in section 86J.
6 New section 82A inserted (Additional consequences for certain repeated offending must not be taken into account in determining length of sentence)
After section 82, insert:
82A Additional consequences for certain repeated offending must not be taken into account in determining length of sentence
(1)
In determining the length of a sentence of imprisonment to be imposed on an offender for a stage-3 offence that is murder, a stage-2 offence, or a stage-1 offence, the court must not take into account the consequences that the offender may face under sections 86K to 86T.
(2)
In this section, stage-1 offence, stage-2 offence, and stage-3 offence have the same meanings as in section 86J.
7 New sections 86J to 86X and cross-heading inserted
Before the cross-heading above section 87, insert:
Additional consequences for certain repeated offending
86J Interpretation
In this section and in sections 86K to 86X, unless the context otherwise requires,—
qualifying offence means an offence against any of the provisions of the Crimes Act 1961 listed in Schedule 1AB
qualifying sentence means,—
(a)
for a stage-1 offence, a sentence that is—
(i)
a determinate sentence of imprisonment of more than 12 months; or
(ii)
an indeterminate sentence of imprisonment:
(b)
for a stage-2 offence or stage-3 offence, a sentence that is—
(i)
a determinate sentence of imprisonment of more than 24 months; or
(ii)
an indeterminate sentence of imprisonment
record of first warning, in relation to an offender, means a record of a warning that the offender has under section 86K(4) or 86KA(4) (including, without limitation, a relevant reactivated warning under clause 21 of Schedule 1AA)
record of subsequent warning, in relation to an offender, means a record of a warning that the offender has under section 86L(4) (including, without limitation, a relevant reactivated warning under clause 21 of Schedule 1AA)
stage-1 offence means a qualifying offence committed by an offender when the offender—
(a)
did not have a record of first warning; and
(b)
was at least 18 years old
stage-2 offence means a qualifying offence committed by an offender when the offender—
(a)
had a record of first warning (in relation to 1 or more offences); but
(b)
did not have a record of subsequent warning
stage-3 offence means a qualifying offence committed by an offender when the offender had a record of subsequent warning (in relation to 1 or more offences).
86K Warnings: first warning to be given if qualifying sentence imposed for stage-1 offence
(1)
This section applies if—
(a)
a court imposes a qualifying sentence on an offender for a stage-1 offence (including on an appeal, but only if the offender does not have a record of first warning in relation to the offence); and
(b)
the offender is before the court when it imposes the sentence.
(2)
This section also applies if an offender appears before a court under section 86M(2) or (6) in relation to a stage-1 offence.
(3)
The court must—
(a)
warn the offender of the possible consequences if the offender receives a further qualifying sentence for any qualifying offence committed after that warning (whether or not that further qualifying offence is different in kind from any qualifying offence for which a sentence of imprisonment is being, or has been, imposed on the offender); and
(b)
make an entry in the permanent court record, in relation to the stage-1 offence, to the effect that the offender has been warned under paragraph (a).
(4)
On and after the making of the entry under subsection (3)(b), the offender has, in relation to the stage-1 offence, a record of first warning (subject to section 86U(2)).
86KA Warnings: first warning to be given if sentence of imprisonment of between 12 and 24 months imposed for stage-2 offence
(1)
This section applies if—
(a)
a court imposes a determinate sentence of imprisonment of more than 12 months but not more than 24 months on an offender for a stage-2 offence (including on an appeal, but only if the offender does not have a record of first warning or a record of subsequent warning in relation to the offence); and
(b)
the offender is before the court when it imposes the sentence.
(2)
This section also applies if an offender appears before a court under section 86M(2) or (6) in relation to a stage-2 offence for which a determinate sentence of imprisonment of more than 12 months but not more than 24 months has been imposed on the offender.
(3)
The court must—
(a)
warn the offender of the possible consequences if the offender subsequently receives a qualifying sentence for any qualifying offence committed after that warning (whether or not that qualifying offence is different in kind from any qualifying offence for which a sentence of imprisonment is being, or has been, imposed on the offender); and
(b)
make an entry in the permanent court record, in relation to the stage-2 offence, to the effect that the offender has been warned under paragraph (a).
(4)
On and after the making of the entry under subsection (3)(b), the offender has, in relation to the stage-2 offence, a record of first warning (subject to section 86U(3)).
86L Warnings: subsequent warning to be given if qualifying sentence imposed for stage-2 offence or stage-3 offence
(1)
This section applies if—
(a)
a court imposes a qualifying sentence on an offender for a stage-2 offence or a stage-3 offence (including on an appeal, but only if the offender does not have a record of subsequent warning in relation to the offence); and
(b)
the offender is before the court when it imposes the sentence.
(2)
This section also applies if an offender appears before a court under section 86M(2) or (6) in relation to—
(a)
a stage-2 offence for which a qualifying sentence has been imposed on the offender; or
(b)
a stage-3 offence.
(3)
The court must—
(a)
warn the offender of the possible consequences if the offender receives a further qualifying sentence for any qualifying offence committed after that warning (whether or not that further qualifying offence is different in kind from any qualifying offence for which a sentence of imprisonment is being, or has been, imposed on the offender); and
(b)
make an entry in the permanent court record, in relation to the stage-2 offence or the stage-3 offence, to the effect that the offender has been warned under paragraph (a).
(4)
On and after the making of the entry under subsection (3)(b), the offender has, in relation to the stage-2 offence or the stage-3 offence, a record of subsequent warning (subject to section 86U(2)).
86M Warnings: administration
(1)
A warning that a court is required to give to an offender under section 86K, 86KA, or 86L must be given to the offender at the time of sentencing if the offender is before the court at that time.
(2)
However, if a court, at the time of sentencing, omits to give a warning required under section 86K, 86KA, or 86L to an offender who was before the court at that time, the court must,—
(a)
if the court is the court that first sentenced the offender for the relevant qualifying offence,—
(i)
as soon as is reasonably practicable after becoming aware of the omission, issue a summons to bring the offender before the court; and
(ii)
if the offender fails to appear before the court in answer to the summons, as soon as is reasonably practicable after that failure, issue a warrant to arrest the offender to bring them before the court; or
(b)
if the court is not the court that first sentenced the offender for the relevant qualifying offence, as soon as is reasonably practicable after becoming aware of the omission, remit the proceeding to the court that first sentenced the offender for the relevant qualifying offence for a warning to be given to the offender.
(3)
Subsection (5) applies if,—
(a)
on an appeal, a court quashes or sets aside a sentence, not being a sentence for which a warning was required to be given under section 86K, 86KA, or 86L, imposed on an offender for a qualifying offence and imposes another sentence in substitution for it; and
(b)
the offender is not before the court at the time that it imposes the substituted sentence; and
(c)
the substituted sentence is a sentence for which the court would have been required to give the offender a warning under section 86K, 86KA, or 86L if the offender had been before the court at that time.
(4)
Subsection (5) also applies if,—
(a)
on an appeal, a court quashes or sets aside a determinate sentence of imprisonment of more than 12 months but not more than 24 months imposed on an offender for a stage-2 offence and imposes a qualifying sentence in substitution for it; and
(b)
the offender is not before the court at the time that it imposes the substituted sentence.
(5)
If this subsection applies, the court that heard the appeal must remit the proceeding to the court that first sentenced the offender for the relevant offence for a warning to be given to the offender.
(6)
A court to which a proceeding is remitted under subsection (2) or (5) must,—
(a)
as soon as is reasonably practicable after the proceeding is remitted to it, issue a summons to bring the offender before the court; and
(b)
if the offender fails to appear before the court in answer to the summons, as soon as is reasonably practicable after that failure, issue a warrant to arrest the offender to bring them before the court.
(7)
If an offender appears before a court under subsection (2) or (6), the court must, despite subsection (1), when the offender so appears, give the warning and make the entry required under section 86K, 86KA, or 86L (whichever applies).
(8)
A Judge need not use a particular form of words in giving a warning required under section 86K, 86KA, or 86L.
86N Notice of possible consequences of receiving subsequent qualifying sentence for qualifying offence
(1)
A court that gives an offender a warning required under section 86K, 86KA, or 86L must also give the offender a written notice that sets out the possible consequences if the offender subsequently receives a qualifying sentence for any qualifying offence committed after the giving of the warning.
(2)
The written notice may be given at the time, or as soon as is reasonably practicable after, the warning is given.
(3)
Failure to give a written notice in accordance with this section does not affect the validity of—
(a)
any sentence imposed, order made, or warning given by a court; or
(b)
any record of first warning or record of subsequent warning.
86O Stage-2 offences: loss of parole eligibility when determinate sentence of imprisonment of more than 24 months imposed for offence other than murder
(1)
This section applies if a court imposes a determinate sentence of imprisonment of more than 24 months on an offender for a stage-2 offence other than murder.
(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 (see section 86T).
(3)
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 in relation to the sentence imposed for the stage-2 offence, the court must state, with reasons, the minimum period of imprisonment that it would have imposed.
(4)
If, but for the application of this section, the court would not have made an order under section 86, the court must state that it would not have made such an order.
86P Stage-2 offences: imposition of minimum period of imprisonment when life imprisonment imposed for murder
(1)
This section applies if—
(a)
a court imposes a sentence of imprisonment for life on an offender for a murder that is a stage-2 offence; and
(b)
the court does not make an order under section 103(2A) requiring the offender to serve the sentence without parole.
(2)
The court must, unless the court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to do so (see section 86T), make an order imposing a minimum period of imprisonment of at least—
(a)
15 years, if the offender pleaded guilty to the murder and none of the circumstances set out in section 104(1A) apply:
(b)
17 years, in any other case.
(3)
If the court makes an order under subsection (2), the court must state, with reasons, the minimum period of imprisonment that it would, but for the application of this section, have imposed.
(4)
If the court does not make an order under subsection (2), the court must give reasons for not doing so.
86Q Stage-3 offences: transfer of proceedings to High Court
(1)
A proceeding against a defendant charged with a stage-3 offence must be transferred to the High Court when the proceeding is adjourned for trial or trial callover under section 57 of the Criminal Procedure Act 2011 or, as the case may be, under section 36 of that Act, and the proceeding from that point, including the trial, must be in the High Court.
(2)
Only the High Court, or the Court of Appeal or the Supreme Court on an appeal, and no other court, may sentence an offender for a stage-3 offence.
(3)
Subsections (1) and (2) override any legislation to the contrary.
86R Stage-3 offences: imposition of minimum sentence and loss of parole eligibility for offence other than murder
When this section applies
(1)
This section applies if a court would, in the absence of this section, have imposed a qualifying sentence on an offender for a stage-3 offence other than murder.
Minimum term of imprisonment
(2)
The court must, unless the court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to do so (see section 86T), sentence the offender to imprisonment for—
Offence other than manslaughter
(a)
the maximum term of imprisonment prescribed for the offence, if—
(i)
the offence is not manslaughter; and
(ii)
the offender did not plead guilty to the offence:
(b)
at least 80% of the maximum term of imprisonment prescribed for the offence, if—
(i)
the offence is not manslaughter; and
(ii)
the offender pleaded guilty to the offence:
Manslaughter
(c)
a term of at least 10 years, if—
(i)
the offence is manslaughter; and
(ii)
the offender did not plead guilty to the offence:
(d)
a term of at least 8 years, if—
(i)
the offence is manslaughter; and
(ii)
the offender pleaded guilty to the offence.
Order to serve sentence without parole
(3)
When the court sentences the offender for the offence, 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 (see section 86T).
Reasons: general
(4)
If the court does not make an order under subsection (3), the court must give reasons for not doing so.
(5)
If the court sentences the offender to at least the relevant minimum term of imprisonment set out in subsection (2)(a) to (d), the court must state, with reasons, the sentence and the minimum period of imprisonment (if any) that it would, but for the application of this section, have imposed.
Preventive detention not precluded
(6)
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 (4) 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 (see section 86T).
Reasons: preventive detention
(7)
If, in reliance on subsection (6)(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 reasons for doing so.
86S Stage-3 offences: imposition of minimum period of imprisonment when life imprisonment imposed for murder
(1)
This section applies if—
(a)
a court imposes a sentence of imprisonment for life on an offender for a murder that is a stage-3 offence; and
(b)
the court does not make an order under section 103(2A) requiring the offender to serve the sentence without parole.
(2)
When the court sentences the offender for the murder, the court must, unless the court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to do so (see section 86T), make an order imposing a minimum period of imprisonment of at least—
(a)
18 years, if the offender pleaded guilty to the murder:
(b)
20 years, in any other case.
(3)
If the court makes an order under subsection (2), the court must state, with reasons, the minimum period of imprisonment that it would, but for the application of this section, have imposed.
(4)
If the court does not make an order under subsection (2), the court must give reasons for not doing so.
86T Guidance on application of manifestly unjust exception in certain provisions
(1)
This section applies to a court when determining whether it would be manifestly unjust to impose a sentence, or make an order, under section 86O(2), 86P(2), 86R(2), (3), or (6), or 86S(2).
(2)
The court must give particular consideration to—
(a)
denouncing the conduct in which the offender was involved; and
(b)
deterring the offender or other persons from committing the same or a similar offence; and
(c)
protecting the community from the offender.
(3)
The court must not determine that imposing the sentence or making the order would be manifestly unjust merely because—
(a)
any 1 or more of the mitigating factors listed in section 9(2) are applicable in the case; or
(b)
it would be disproportionate, unless it would be grossly disproportionate.
(4)
Nothing in subsection (3) prevents the court from taking into account the mitigating factors listed in section 9(2), to the extent that they are applicable in the case, when determining whether imposing the sentence or making the order would be manifestly unjust.
86U Continuing effect of warnings
(1)
An offender continues to have a record of first warning or a record of subsequent warning in relation to an offence regardless of whether the offender has served or otherwise completed the sentence imposed on the offender for the offence to which the record relates.
(2)
Despite subsection (1), an offender ceases to have a record of first warning in relation to a stage-1 offence or a record of subsequent warning in relation to a stage-2 offence or a stage-3 offence if—
(a)
a court, on an appeal,—
(i)
quashes or sets aside the conviction for the offence to which the relevant record relates; or
(ii)
quashes or sets aside the sentence imposed for the offence to which the relevant record relates and does not impose a qualifying sentence in substitution for it; or
(b)
a court cancels the sentence imposed for the offence to which the relevant record relates and substitutes a sentence of home detention under section 80K(4); or
(c)
a court imposes a new sentence under section 180 of the Criminal Procedure Act 2011 (which relates to the correction of erroneous sentences) for the offence to which the relevant record relates and the new sentence is not a qualifying sentence; or
(d)
the offender is—
(i)
granted a free pardon for the offence to which the relevant record relates; or
(ii)
because of having fulfilled the conditions of a conditional pardon, not required to serve a qualifying sentence for the offence to which the relevant record relates.
(3)
Despite subsection (1), an offender ceases to have a record of first warning in relation to a stage-2 offence if—
(a)
a court, on an appeal,—
(i)
quashes or sets aside the conviction for the offence to which the record relates; or
(ii)
quashes or sets aside the sentence imposed for the offence to which the record relates and does not impose a determinate sentence of imprisonment of more than 12 months but not more than 24 months in substitution for it; or
(b)
a court cancels the sentence imposed for the offence to which the record relates and substitutes a sentence of home detention under section 80K(4); or
(c)
a court imposes a new sentence under section 180 of the Criminal Procedure Act 2011 for the offence to which the record relates and the new sentence is not a determinate sentence of imprisonment of more than 12 months but not more than 24 months; or
(d)
the offender is—
(i)
granted a free pardon for the offence to which the record relates; or
(ii)
because of having fulfilled the conditions of a conditional pardon, not required to serve a sentence of imprisonment of more than 12 months for the offence to which the record relates.
(4)
If an offender ceases to have a record of subsequent warning in relation to a stage-2 offence because subsection (2)(a)(ii) applies and the court that heard the appeal imposes a determinate sentence of imprisonment of more than 12 months but not more than 24 months in substitution for the quashed or set aside sentence, then—
(a)
that court must order that the record of subsequent warning be replaced by a record of first warning; and
(b)
the replacement record of first warning is treated as having taken effect on the date on which the record of subsequent warning took effect.
(5)
If an offender continues to have 1 (but not more than 1) record of subsequent warning after every record of first warning that the offender had has ceased, then—
(a)
the appropriate court must order that the record of subsequent warning be replaced by a record of first warning; and
(b)
that replacement record of first warning is treated as having taken effect on the date on which the record of subsequent warning took effect.
(6)
If an offender continues to have more than 1 record of subsequent warning after every record of first warning that the offender had has ceased, then—
(a)
the appropriate court must order that each record of subsequent warning that took effect on the earliest date on which the offender had a record of subsequent warning be replaced by a record of first warning; and
(b)
those replacement records of first warning are treated as having taken effect on that date.
(7)
In this section and in section 86V, appropriate court means,—
(a)
in the case of an offender who ceases, under subsection (2)(a) or (3)(a), to have a record of first warning or a record of subsequent warning in relation to an offence, the court that heard the appeal:
(b)
in the case of an offender who ceases, under subsection (2)(b) or (3)(b), to have a record of first warning in relation to an offence, the court that cancelled the sentence and substituted a sentence of home detention:
(c)
in the case of an offender who ceases, under subsection (2)(c) or (3)(c), to have a record of first warning or a record of subsequent warning in relation to an offence, the court that imposed the new sentence:
(d)
in the case of an offender who ceases, under subsection (2)(d) or (3)(d), to have a record of first warning or a record of subsequent warning in relation to an offence, the court that first sentenced the offender for the offence.
86V How cessation of record affects later sentences
(1)
This section applies if,—
(a)
under section 86U, an offender ceases to have a record of first warning or a record of subsequent warning or both (the previous record); and
(b)
the offender continues to be subject to a qualifying sentence that was imposed on the offender for a qualifying offence committed when the offender had the previous record (a later qualifying sentence).
(2)
If the appropriate court is the High Court, the appropriate court must—
(a)
take the actions described in subsection (5) that are applicable to the case; or
(b)
remit the matter to the court that imposed the later qualifying sentence with a direction to take those actions.
(3)
If the appropriate court is not the High Court, the appropriate court must, unless the later qualifying sentence was imposed by a higher court than the appropriate court,—
(a)
take the actions described in subsection (5) that are applicable to the case; or
(b)
remit the matter to the court that imposed the later qualifying sentence with a direction to take those actions.
(4)
If the appropriate court is the District Court and the later qualifying sentence was imposed by a higher court, the High Court must, on the application of the offender, take the actions described in subsection (5) that are applicable to the case.
(5)
The actions are as follows:
(a)
if the later qualifying sentence would not have been imposed but for the previous record, the court must set aside the later qualifying 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 qualifying 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.
86W Appeal against orders relating to imprisonment
For the purposes of Part 6 of the Criminal Procedure Act 2011, an order under section 86O(2), 86P(2), 86R(3), or 86S(2) is a sentence.
86X Sections 86K to 86T prevail over inconsistent provisions
(1)
This section applies to a provision—
(a)
in sections 86K to 86T; and
(b)
that is inconsistent with another provision in this Act or in the Parole Act 2002.
(2)
The provision prevails over the other provision, to the extent of the inconsistency.
8 Section 89 amended (Imposition of minimum period of imprisonment)
Before section 89(3), insert:
(2A)
If a sentence of preventive detention is imposed for a stage-3 offence (as defined in section 86J), subsections (1) and (2) are subject to section 86R(6).
9 Section 103 amended (Imposition of minimum period of imprisonment or imprisonment without parole if life imprisonment imposed for murder)
In section 103(7), replace “section 104”
with “sections 86P, 86S, and 104”
.
10 Section 104 amended (Imposition of minimum period of imprisonment of 17 years or more)
(1)
Replace section 104(1) with:
(1)
The court must make an order under section 103 imposing a minimum period of imprisonment of at least 17 years if any 1 or more of the circumstances set out in subsection (1A) apply, unless the court is satisfied that it would be manifestly unjust to do so.
(1A)
The circumstances are as follows:
(a)
the murder was committed in an attempt to avoid the detection, prosecution, or conviction of any person for any offence or in any other way to attempt to subvert the course of justice:
(b)
the murder involved calculated or lengthy planning, including making an arrangement under which money or anything of value passes (or is intended to pass) from one person to another:
(c)
the murder involved the unlawful entry into, or unlawful presence in, a dwelling place:
(d)
the murder was committed in the course of another serious offence:
(e)
the murder was committed with a high level of brutality, cruelty, depravity, or callousness:
(f)
the murder was committed as part of a terrorist act (as defined in section 5(1) of the Terrorism Suppression Act 2002):
(g)
the deceased was a constable or a prison officer acting in the course of their duty:
(h)
the deceased was particularly vulnerable because of their age, health, or any other factor:
(i)
the offender has been convicted of 2 or more counts of murder, whether or not arising from the same circumstances:
(j)
any other exceptional circumstances exist.
(2)
In section 104(2), replace “section 103(2A)”
with “section 86P(2), 86S(2), or 103(2A)”
.
11 Schedule 1AA amended
(1)
In Schedule 1AA, Part 4, before clause 13, insert:
13AAA Interpretation
In this Part, stage-2 or stage-3 offence means a stage-2 offence or a stage-3 offence as those terms were defined in section 86A immediately before that section was repealed, on 16 August 2022, by section 5 of the Three Strikes Legislation Repeal Act 2022.
(2)
In Schedule 1AA,—
(a)
insert the Part set out in Schedule 1 of this Act as the last Part; and
(b)
make all necessary consequential amendments.
12 New Schedule 1AB inserted
After Schedule 1AA, insert the Schedule 1AB set out in Schedule 2 of this Act.
Part 2 Amendments to other Acts
Subpart 1—Amendment to Criminal Procedure Act 2011
13 Principal Act
Section 14 amends the Criminal Procedure Act 2011.
14 Section 180 amended (Court may correct erroneous sentence)
Replace section 180(4) with:
(4)
In this section, sentence includes—
(a)
an order, and references to the imposition of a sentence include references to the making of an order:
(b)
a record of first warning and a record of subsequent warning (as those terms are defined in section 86J of the Sentencing Act 2002), and references to the imposition of a sentence include references to the giving and recording of a warning of either kind.
Subpart 2—Amendments to Criminal Procedure (Mentally Impaired Persons) Act 2003
15 Principal Act
Sections 16 and 17 amend the Criminal Procedure (Mentally Impaired Persons) Act 2003.
16 Section 34 amended (Power of court to commit offender to hospital or facility on conviction)
After section 34(5), insert:
(6)
No order may be made under subsection (1)(b) in respect of an offender who is convicted of a stage-2 offence, or a stage-3 offence, for which the court would, in the absence of that paragraph, have imposed a qualifying sentence.
(7)
In this section, qualifying sentence, stage-2 offence, and stage-3 offence have the same meanings as in section 86J of the Sentencing Act 2002.
17 Schedule 1AA amended
In Schedule 1AA,—
(a)
insert the Part set out in Schedule 3 of this Act as the last Part; and
(b)
make all necessary consequential amendments.
Subpart 3—Amendment to Evidence Act 2006
18 Principal Act
Section 19 amends the Evidence Act 2006.
19 Section 139 amended (Evidence of convictions, acquittals, and other judicial proceedings)
Before section 139(1)(c), insert:
(ba)
a record of first warning or a record of subsequent warning (as those terms are defined in section 86J of the Sentencing Act 2002) made in respect of a person:
Subpart 4—Amendments to Parole Act 2002
20 Principal Act
Sections 21 to 24 amend the Parole Act 2002.
21 Section 20 amended (Parole eligibility date)
(1)
After section 20(4), insert:
(4A)
An offender (offender A) who is subject to a sentence (sentence A) that he or she is required, by an order made under section 86O(2) or 86R(3) of the Sentencing Act 2002, to serve without parole—
(a)
does not have a parole eligibility date in respect of sentence A; and
(b)
may not be released on parole in respect of sentence A.
(4B)
If offender A is also subject to 1 or more other sentences in respect of which no order under section 86O(2) or 86R(3) of the Sentencing Act 2002 has been made, the full term of sentence A must be treated as the non-parole period of sentence A for the purpose of determining the parole eligibility date (if any) of each of those other sentences.
(2)
After section 20(4), insert:
(5)
If an offender is required, by an order made under section 103(2A) of the Sentencing Act 2002, to serve a sentence of imprisonment for life without parole, the offender may not be released on parole.
22 Section 25 amended (Early referral and consideration for parole)
In section 25(5)(b), replace “section 86, section 89, or section 103”
with “section 86, 86O(2), 86P(2), 86R(3), 86S(2), 89, or 103”
.
23 Section 84 amended (Non-parole periods)
(1)
In section 84(2), after “86,”
, insert “86P(2), 86S(2),”
.
(2)
Replace section 84(3) with:
(3)
The non-parole period of a sentence of imprisonment for life is 10 years, unless the court—
(a)
has imposed a minimum term of imprisonment in respect of that sentence; or
(b)
has made an order under section 103(2A) of the Sentencing Act 2002 in respect of that sentence.
(3A)
An offender who is subject to an order made under section 103(2A) of the Sentencing Act 2002 is not eligible for parole in respect of the following sentences:
(a)
the sentence to which the order relates:
(b)
any other sentence to which the offender is subject when the order is made:
(c)
any sentence that is later imposed on the offender.
(3)
Before section 84(5)(b), insert:
(ab)
every sentence in respect of which an order under section 86O(2) or 86R(3) of the Sentencing Act 2002 has been made must be treated as if it had a non-parole period equal to its full term; and
24 Schedule 1 amended
In Schedule 1,—
(a)
insert the Parts set out in Schedule 4 of this Act as the last Parts; and
(b)
make all necessary consequential amendments.
Schedule 1 New Part 6 inserted into Schedule 1AA of Sentencing Act 2002
Part 6 Provisions relating to Sentencing (Reinstating Three Strikes) Amendment Act 2024
18 Interpretation
In this Part,—
amendment Act means the Sentencing (Reinstating Three Strikes) Amendment Act 2024
commencement date means the date on which the amendment Act, other than sections 21(2), 23(2), and 24, comes into force
current, for a warning under the old regime, means that the record—
(a)
has not ceased, or been cancelled, under section 86F of the old regime, when that section was in force; and
(b)
would not have ceased, or have been cancelled, under that section if it were in force—
(i)
on and after 16 August 2022; and
(ii)
until the commencement date
new regime means sections 86J to 86X (additional consequences for certain repeated offending), and related legislation, as in force on and after the commencement date
old regime means sections 86A to 86I (additional consequences for repeated serious violent offending), and related legislation, as in force—
(a)
on and after 1 June 2010; and
(b)
until immediately before 16 August 2022
reactivated warning means a warning under the old regime that under clause 21 is taken to be the equivalent warning under the new regime
warning under the new regime, in relation to an offender, means a record under the new regime that is—
(a)
a record of first warning (as defined in section 86J of the new regime); or
(b)
a record of subsequent warning (as defined in section 86J of the new regime)
warning under the old regime, in relation to an offender, means a record under the old regime that, immediately before the commencement date, is current (as defined in this clause), and is—
(a)
a record of first warning (as defined in section 86A of the old regime); or
(b)
a record of final warning (as defined in section 86A of the old regime).
19 Offences affected by amendments
General rule: new regime applies only to new offences
(1)
The amendments made to this Act by the amendment Act do not apply to any offence committed, whether in whole or in part, before the commencement date.
Exception: old regime warnings reactivated under new regime
(2)
However, subclause (1) is subject to clauses 21 to 24.
20 No entitlement to compensation
A person is not entitled to compensation of any kind on account of any difference between—
(a)
this Act as in force immediately before 16 August 2022; and
(b)
this Act as in force on the commencement date.
Warnings under old regime reactivated under new regime
21 Warning under old regime reactivated unless exception applies
General rule
(1)
A warning under the old regime is taken to be the equivalent warning under the new regime (see clause 22).
Exception: for stage-1 offence without qualifying sentence
(2)
Subclause (1) does not apply if the warning under the old regime is for a stage-1 offence for which the sentence imposed is not a qualifying sentence as defined in paragraph (a) of the definition of that term in section 86J of the new regime.
Exception: for stage-2 offence without qualifying sentence
(3)
Subclause (1) does not apply if the warning under the old regime is for a stage-2 offence for which the sentence imposed is not a qualifying sentence as defined in paragraph (b) of the definition of that term in section 86J of the new regime.
Exception: for stage-2 offence with qualifying sentence for stage-1 offence
(4)
Subclause (3) is subject to the exception in subclause (5).
(5)
Subclause (1) does apply to the warning under the old regime (see also clause 22(2) and (3)) if that warning is for a stage-2 offence and the offender has both of the following warnings under the old regime:
(a)
a warning for a stage-1 offence to which subclause (2) applies; and
(b)
a warning for a stage-2 offence for which the sentence imposed is—
(i)
a determinate sentence of imprisonment of more than 12 months; or
(ii)
an indeterminate sentence of imprisonment.
22 Equivalent warning under new regime
General rule: for stage-1 offence, or stage-2 offence, with qualifying sentence
(1)
The equivalent warning under the new regime is set out in the following table:
| Item | Warning and sentence under old regime | Equivalent under new regime | ||
|---|---|---|---|---|
| 1 | Record of first warning under section 86B(3) of the old regime for a stage-1 offence for which the sentence imposed is a qualifying sentence under paragraph (a) of the definition of that term in section 86J of the new regime | Record of first warning under section 86K(4) | ||
| 2 | Record of final warning under section 86C(3) or 86E(8) of the old regime for a stage-2 offence for which the sentence imposed is a qualifying sentence under paragraph (b) of the definition of that term in section 86J of the new regime | Record of subsequent warning under section 86L(4) |
Exception: for stage-2 offence with qualifying sentence for stage-1 offence
(2)
Subclause (1) is subject to the exception in subclause (3).
(3)
A warning under the old regime that is a record of final warning is taken to be a record of first warning under section 86K(4) of the new regime if the offender has both of the following warnings under the old regime:
(a)
a record of first warning that is not a reactivated warning under clause 21(2); and
(b)
a record of final warning that is a reactivated warning under clause 21(5).
23 How new regime applies to reactivated warning
(1)
The new regime applies, with any necessary modifications, to a reactivated warning.
(2)
In particular, the following sections of the new regime apply, with any necessary modifications, to a reactivated warning:
(a)
section 86U (continuing effect of warnings); and
(b)
section 86V (how cessation of record affects later sentences).
(3)
Subclause (2) does not limit the generality of subclause (1).
24 Differences in giving or recording of warnings
Clauses 21 to 23 apply regardless of any difference—
(a)
between the old regime and the new regime; and
(b)
related to the giving or recording of warnings.
Schedule 2 New Schedule 1AB inserted into Sentencing Act 2002
Schedule 1AB Qualifying offences
s 86J
| Provision of Crimes Act 1961 | Subject matter | |
|---|---|---|
| s 128B | Sexual violation | |
| s 129(1) | Attempted sexual violation | |
| s 129(2) | Assault with intent to commit sexual violation | |
| s 129A(1) | Sexual connection with consent induced by threat | |
| s 131(1) | Sexual connection with dependent family member under 18 years | |
| s 131(2) | Attempted sexual connection with dependent family member under 18 years | |
| s 132(1) | Sexual connection with child | |
| s 132(2) | Attempted sexual connection with child | |
| s 132(3) | Indecent act on child | |
| s 134(1) | Sexual connection with young person | |
| s 134(2) | Attempted sexual connection with young person | |
| s 134(3) | Indecent act on young person | |
| s 135 | Indecent assault | |
| s 138(1) | Exploitative sexual connection with person with significant impairment | |
| s 138(2) | Attempted exploitative sexual connection with person with significant impairment | |
| s 142A | Compelling indecent act with animal | |
| s 144A | Sexual conduct with children and young people outside New Zealand | |
| s 172 | Murder | |
| s 173 | Attempted murder | |
| s 174 | Counselling or attempting to procure murder | |
| s 175 | Conspiracy to murder | |
| s 177 | Manslaughter | |
| s 188(1) | Wounding with intent to cause grievous bodily harm | |
| s 188(2) | Wounding with intent to injure | |
| s 189(1) | Injuring with intent to cause grievous bodily harm | |
| s 189A | Strangulation or suffocation | |
| s 191(1) | Aggravated wounding | |
| s 191(2) | Aggravated injury | |
| s 198(1) | Discharging firearm or doing dangerous act with intent to do grievous bodily harm | |
| s 198(2) | Discharging firearm or doing dangerous act with intent to injure | |
| s 198A(1) | Using firearm against law enforcement officer, etc | |
| s 198A(2) | Using firearm with intent to resist arrest or detention | |
| s 198B | Commission of crime with firearm | |
| s 200(1) | Poisoning with intent to cause grievous bodily harm | |
| s 201 | Infecting with disease | |
| s 208 | Abduction for purposes of marriage or civil union or sexual connection | |
| s 209 | Kidnapping | |
| s 232(1) | Aggravated burglary | |
| s 234 | Robbery | |
| s 235 | Aggravated robbery | |
| s 236(1) | Causing grievous bodily harm with intent to rob, or assault with intent to rob in specified circumstances | |
| s 236(2) | Assault with intent to rob |
Schedule 3 New Part 3 inserted into Schedule 1AA of Criminal Procedure (Mentally Impaired Persons) Act 2003
Part 3 Provision relating to Sentencing (Reinstating Three Strikes) Amendment Act 2024
6 Offences affected by amendment
(1)
The amendment made to section 34 of this Act by section 16 of the amendment Act does not apply to any offence committed, whether in whole or in part, before the commencement date.
(2)
In this clause,—
amendment Act means the Sentencing (Reinstating Three Strikes) Amendment Act 2024
commencement date means the date on which the amendment Act, other than sections 21(2), 23(2), and 24, comes into force.
Schedule 4 New Parts 3 and 4 inserted into Schedule 1 of Parole Act 2002
Part 3 Provision relating to Three Strikes Legislation Repeal Act 2022
7 Treatment of persons serving sentence of life imprisonment without parole for murder on commencement of Three Strikes Legislation Repeal Act 2022
(1)
This clause applies to a person who,—
(a)
before the repeal Act came into force, was convicted of murder and sentenced to imprisonment for life; and
(b)
immediately before the repeal Act came into force, was subject to an order made under section 103(2A) of the Sentencing Act 2002.
(2)
A person to whom this clause applies—
(a)
is not, and has never been, affected by the amendments to sections 20 and 84 made by sections 18 and 19 of the repeal Act; and
(b)
may not be released on parole so long as the order remains in force.
(3)
In this clause, repeal Act means the Three Strikes Legislation Repeal Act 2022.
Part 4 Provisions relating to Sentencing (Reinstating Three Strikes) Amendment Act 2024
8 Interpretation
In this Part,—
amendment Act means the Sentencing (Reinstating Three Strikes) Amendment Act 2024
commencement date means the date on which sections 21(2), 23(2), and 24 of the amendment Act come into force.
9 Retrospective application of section 20(5)
Section 20(5) (as inserted by section 21(2) of the amendment Act) applies on and from 16 August 2022 as if it were in force on and from that date.
10 Retrospective application of section 84(3) and (3A)
Section 84(3) and (3A) (as inserted by section 23(2) of the amendment Act) apply on and from 16 August 2022 as if they were in force on and from that date.
Legislative history
25 June 2024 |
Introduction (Bill 65–1), first reading and referral to Justice Committee |
|
3 December 2024 |
Reported from Justice Committee (Bill 65–2) |
|
10 December 2024 |
Second reading, committee of the whole House, third reading |
|
17 December 2024 |
Royal assent |
This Act is administered by the Ministry of Justice.