Chapter 2
The nature and role of maximum penalties

2.1Maximum penalties are a near-ubiquitous feature of New Zealand’s criminal law. Very few offences do not have a specific maximum penalty attached to them.6
2.2It is a long-standing common law principle (now codified in s 8(c) of the Sentencing Act 2002) that the maximum penalty is to be imposed for the offence that is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender, such as the absence of a previous record, make that inappropriate.7 In setting a maximum penalty, Parliament is therefore stipulating the sentence that it regards as appropriate in such cases.
2.3Parliament does not decree what the most serious case might be. Nor would it be practicable for it to do so. This is, rather, a matter for the courts to determine given the circumstances of the cases that come before them. In doing so, the courts have repeatedly emphasised that the maximum sentence is not to be reserved for the worst possible case imaginable. If that were the test, no one would ever be sentenced to the maximum penalty, since it is always possible to think hypothetically of a more serious case. Rather, the maximum penalty is to be imposed where the case comes within the worst class of offending of its type or (as s 8(c) puts it) “within the most serious of cases for which that penalty is prescribed”.8
2.4Of course, most offending does not fall within the bracket of the “worst class of case”. Offences in New Zealand tend to be broadly defined, with widely varying degrees of seriousness encapsulated within one offence category. That is desirable as a means of ensuring that there are not unnecessary pleas of not guilty and defended trials because of denials or disputes about secondary matters that do not bear on core culpability and ought to be addressed at sentencing. But the result is that statutory maximum penalties tend to be set far above the sentences that would be appropriate for the ordinary run of offences of each type coming before the courts and provide a poor guide as to what the sentences for those offences ought to be. There is thus only an indirect and sometimes marginal relationship between the maximum penalty for an offence and the bulk of sentences imposed for that offence.9 The extent of the relationship will also vary from offence to offence, depending upon the breadth of the offence definition and the consequent spread of offending relative to the worst class of case.

2.5In our view, this is as it should be. Parliament can and should give guidance as to the appropriate penalty for offending at the top end of the spectrum within a particular offence category, but realistically it is not able to prescribe sentence levels for day to day sentencing practice. To reiterate the conclusion the Law Commission reached in Sentencing Guidelines and Parole Reform, that can only sensibly be done through a system of sentencing guidelines developed in some other way.

Offence seriousness as the basis for maximum penalties

2.6Because the current maximum penalties regime is based on the worst class of case in a particular category, it is clearly based on relative offence seriousness. In general, the higher the maximum penalty that Parliament allocates to an offence, the more seriously it views the prohibited conduct. This approach is made clear in the Sentencing Act which provides that:

8 Principles of sentencing or otherwise dealing with offenders
In sentencing or otherwise dealing with an offender the court—
(b) must take into account the seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences.

2.7This constitutes a direction from the legislature to the courts not only to take offence seriousness into account when passing sentence, but to determine offence seriousness by reference to the relevant maximum penalty.

2.8Caution needs to be exercised in applying this relativity to less serious instances of offences, since one offence may encompass a much greater range of conduct than another. Nevertheless, the maximum penalty will often provide some guide as to appropriate differences between sentence levels for different offences across the range of conduct covered by them. For example, sentences for supply of a Class A drug10 (a maximum of life imprisonment) will almost invariably be much higher than those for possession of a Class C drug11 (a maximum of either three months’ imprisonment or a fine of $500). The difference in sentence reflects the degree of seriousness with which Parliament views supply of a Class A drug as compared to possession of a Class C drug.
2.9Again, we agree with the approach that underpins the current legislation in this respect. While s 7 of the Sentencing Act lists eight purposes of sentencing and states that nothing about the order in which the purposes appear in the section implies that any purpose is to be given any greater weight than any other purpose, the need to hold the offender accountable (purpose (a)) and denounce the conduct (purpose (e)), and therefore to determine the quantum of punishment by reference to the seriousness of the offence and the culpability of the offender, is almost invariably still the starting point in the calculation of sentence.12

2.10We have therefore based our review of maximum penalties on a methodology that is designed to assess the relative seriousness of the worst class of case of each offence, moderated by any reduced culpability inherent in that offence. In the next chapter, we turn to consider the details of that methodology and how we have applied it.

6Those offences that do not carry a specific maximum penalty are still covered by s 107 of the Crimes Act 1961, which provides a maximum penalty of one year's imprisonment for wilfully performing a prohibited act or failing to perform a statutory duty.
7See for example: R v Beri [1987] 1 NZLR 46 (CA); R v Donnelly and Fulcher [1987] 2 NZLR 233 (CA); and R v Xie [2007] 2 NZLR 240 (CA).
8See for example: R v Chen [2009] NZCA 445, [2010] 2 NZLR 158; R v Rhodes and ORS [2009] NZCA 486.
9For example, conversion of a motor vehicle carries a maximum penalty of seven years' imprisonment (Crimes Act 1961, s 226). However, in 2003, only 26 per cent of convicted offenders were given a custodial sentence, and the average sentence length was at its highest point in a decade at 9.4 months, far below the maximum penalty. Even if the maximum penalty is set at the correct level (and we suggest below that it is not), the fact that day-to-day sentences are out of line with it would not necessarily indicate any problem with sentencing practice.
10Misuse of Drugs Act 1975, s 6(2)(a).
11Misuse of Drugs Act 1975, s 7(2)(b).
12See for example, R v Taueki [2005] 3 NZLR 372 (CA).