Chapter 1

Reasons for the review

1.5Notwithstanding this change in circumstances, we determined that the project was important and that we would persist with it. That is because the Law Commission’s work on the development of sentencing guidelines in advance of the establishment of a Sentencing Council reinforced the view expressed in Sentencing Guidelines and Parole Reform that many maximum penalties are anomalous, do not reflect the relative seriousness of the offence and bear little or no relationship to current sentencing practice. This is regrettable because, as the Australian Law Reform Commission has observed, “in a rational system of punishment it is desirable that penalties prescribed by law correspond to offence seriousness in a consistent fashion”.2

1.6There are a number of reasons for the anomalies identified between many maximum penalties and the disjunction between them and current sentencing practice.

1.7First, maximum penalties have historically been set in a fairly unsystematic way. There has been no rigorous and agreed methodology or approach for determining the relative seriousness of an offence when it is created. It would be going too far to say that maximum penalties are little more than figures plucked out of the air at the time of their creation; officials and legislators do generally make some attempt to compare the proposed maximum with maximum penalties elsewhere in the statute book, and for many years the Ministry of Justice (and before 1995, the Department of Justice) has performed a vetting function in relation to statutory provisions creating new offences or penalties. Nevertheless, in the end the selection of a quantum has been largely intuitive.

1.8Secondly, even if a maximum penalty does accurately indicate Parliament’s view as to the relative seriousness of an offence, it is an assertion of seriousness for that particular Parliament, and in light of the political and social circumstances of the day. It may therefore exist largely as a matter of historical accident. If it has not been reviewed over time, it may provide little guidance as to the legislature’s current view of the seriousness of the offence relative to other offences.

1.9To illustrate, s 18 of the District Courts Act 1947 creates an offence of assaulting an officer of a District Court, for which the maximum penalty is a fine of $300. By comparison, s 30 of the Courts Security Act 1999 creates an offence of assaulting a court security officer, for which the maximum penalty is three months’ imprisonment. The differences in maximum penalties suggest that the latter offence is considerably more serious than the former. In fact, the offences are in substance the same, namely assaulting an official of the court acting in the execution of his or her duty. The problem is that the maximum penalty for the assault offence in the District Courts Act has not been revised since 1980 when the maximum fine limit was increased from $40.3 The failure to update the maximum since that time has resulted in the development of quite different maxima for offences of equal seriousness.
1.10Difficulties with inconsistent maxima are not limited to the occasional pair of comparable offences. There are in fact a large number of offences of assaulting a person acting in an official capacity, in addition to the two just described, many of which carry widely varying maxima.4 Moreover, these offences are in addition to the main common assault offences in s 9 of the Summary Offences Act 1981 (maximum six months’ imprisonment) and s 196 of the Crimes Act 1961 (maximum one year’s imprisonment). This combination of offences and associated maximum penalties indicates how incoherent the statute book can become when very similar or even identical offences are created at particular times to meet particular political needs, and then left in place without subsequent review.

1.11Thirdly, the rules covering the automatic release of prisoners have been altered on a number of occasions over the years, thus changing the proportion of a nominal prison sentence actually served without any corresponding change in maximum penalties. Initially, s 31(1) of the Penal Institutions Act 1954 gave the Minister of Justice a discretion to remit the determinate sentence of a person on the grounds of “good conduct and industry” by no more than one quarter of their sentence. This changed with the Criminal Justice Act 1985 when offenders became eligible for remission (which was effectively automatic early release) after serving two-thirds of their sentence. In 1993, while remission remained at two-thirds for long-term prisoners (those serving more than 12 months), it was reduced to one half for short-term prisoners (those serving 12 months or less). Under the Parole Act 2002, automatic release was abolished for long-term prisoners (now defined as those serving more than two years), but was retained at one half for short-term prisoners (those serving two years or less). The Parole Amendment Act 2007, as yet unimplemented, redefined a short-term prison sentence to mean a sentence of 12 months or less, and would require prisoners to serve the whole of that sentence.

1.12Since maximum penalties remain the same despite these adjustments to the rules governing early release, offenders have over time been exposed to different levels of punishment for a particular offence, even though there has been no explicit legislative intent to achieve that result. For example, the worst class of case of conspiring to defeat the course of justice (s 116 of the Crimes Act) would be deserving of the maximum penalty of seven years. However, the actual length of sentence served could depend on the automatic release rules in place at the time. Under the Criminal Justice Act 1985 (as amended in 1993), an offender sentenced to seven years had to be released after two-thirds of that sentence. Conversely, following the enactment of the Sentencing Act an offender sentenced for seven years for the same offence could be required to serve the full seven years.5 For this reason, maximum penalties need to be reviewed in order to take into account the present automatic release requirements. This is important because offenders should not be liable to maximum penalties that make outdated assumptions about those requirements.
2Australian Law Reform Commission Sentencing: Penalties (ALRC DP30, 1987) at [89].
3District Courts Amendment Act 1980, s 16.
4These include maxima of: a fine of $1,000 for assaulting an officer of a Tenancy Tribunal (Residential Tenancies Act 1986, s 112); a fine of $5,000 for assaulting a member or officer of the Lawyers and Conveyancers Disciplinary Tribunal ( Lawyers and Conveyancers Act 2006, s 251); a fine of $50,000 for assaulting a wine officer (Wine Act 2003, s 101); 5 days' imprisonment for assaulting a Supreme Court Justice (Supreme Court Act 2003, s 35); 10 days' imprisonment for assaulting a member or officer of the Environment Court (Resource Management Act 1991, s 282); three months' imprisonment for assaulting a person exercising statutory powers (Civil Defence Emergency Management Act 2002, s 98); six months' imprisonment for assaulting a police, prison, or traffic officer (Summary Offences Act 1981, s 10); and 12 months' imprisonment for assaulting a Customs Officer (Customs and Excise Act 1996, s 176).
5Of course, the offender may not have to serve the full seven years in prison given the possibility of parole. This raises the question as to whether changes to parole rules constitute a further reason for reviewing maximum penalties. The answer is that they do not, for two reasons. First, parole is discretionary. Automatic release, on the other hand, is mandatory, meaning that maximum penalties can be set in the knowledge that an offender’s sentence will be completed at a definite point that is earlier than the sentence imposed by the court. Second, even if an offender is paroled, he or she is technically serving his or her sentence, and is subject to recall to prison to serve the remainder of his or her sentence if one or more of the conditions of parole are breached. By contrast, automatic release constitutes the completion of the sentence, without the possibility of recall to prison.