Chapter 4
Determining harm and culpability

Adjusting for culpability

4.15Having done our provisional ranking, we then applied Step 4 of our process. This involved consideration of the extent to which any harm scores, and the consequent ranking of the offence to which they related, needed to be adjusted to reflect any particular culpability features inherent in the offence that either increased or reduced its seriousness in the worst class of case.

4.16A harm score on its own is not sufficient to provide an appropriate ranking of offences according to seriousness. That is because, as noted above at paragraphs 2.6–2.10, there are two components to the seriousness of an offence: the harm it causes, and the culpability of the offender in relation to it. The harm score therefore required modification to reflect any differences in culpability between one offence and another.

4.17There is, of course, a wide range of aggravating and mitigating factors, common to a number of offences that affect the culpability of an offender in an individual case, and will be taken into account by the court in determining the appropriate sentence. However, such factors are not our concern here, since the worst class of case assumes the entry of a guilty verdict after a defended trial, the presence of aggravating factors at the highest level possible for that offence and a corresponding absence of mitigating factors. Rather, our concern is with any culpability element intrinsic in the offence as expressed in the statute that increases or reduces the culpability that would otherwise be assumed to attach to the worst class of case.

4.18How then does intrinsic culpability vary from one offence to another? It does so primarily by reference to differences in the mental element required for the offence. As noted by von Hirsch, “the gravity of conduct varies with whether the actor’s behaviour was purposeful, knowing, reckless, or negligent”.27 On this basis, an offence that requires the offender to have acted purposefully (that is, intentionally) indicates greater culpability than an offence committed negligently.

4.19However, the fact that the mental element (termed the mens rea) of a particular offence is lower than intent (for example, recklessness or negligence) does not in itself mean that the harm score should be modified to reflect reduced culpability. That is because, even in relation to an offence that does not require proof of intention or knowledge, such a mental element will generally be integral to the worst instance of that offence. For example, the mens rea of the offence of sexual violation by rape under s 128 of the Crimes Act is negligence: an offender who has no reasonable grounds for believing that the victim consented to the sexual intercourse is guilty of the offence. However, the most serious instance of the offence clearly entails an intent to have sexual intercourse in the knowledge that the victim is not consenting, which is the reason why the maximum penalty is currently set at 20 years’ imprisonment.

4.20It follows that, regardless of the express or implied mens rea of an offence, its intrinsic culpability is therefore generally equivalent to other offences. Notwithstanding this, there were a number of adjustments that needed to be made to harm scores to recognise a particular level of culpability intrinsic to an offence.

Existence of two or more offences differentiated only by mental element

4.21Most of the offences requiring adjustment to reflect culpability have the same actus reus (the physical element) and are differentiated only by the mens rea, so that they necessarily vary in culpability. The Victoria Crimes Act 1958 demonstrates a gradation of offences on this basis well. The offences of causing serious injury are categorised as follows (emphasis added):

16. Causing serious injury intentionally

A person who, without lawful excuse, intentionally causes serious injury to another person is guilty of an indictable offence.
Penalty: Level 3 imprisonment (20 years maximum).

17. Causing serious injury recklessly

A person who, without lawful excuse, recklessly causes serious injury to another person is guilty of an indictable offence.
Penalty: Level 4 imprisonment (15 years maximum).

24. Negligently causing serious injury

A person who by negligently doing or omitting to do an act causes serious injury to another person is guilty of an indictable offence.
Penalty: Level 6 imprisonment (five years maximum).

4.22This creates separate offences for the same prohibited conduct based solely on different mental states. It is therefore culpability rather than harm that makes one offence more serious than another. While the harm caused by each is the same, the harm score for the offences of recklessness and negligence would require adjustment downwards to reflect their lower culpability.

4.23In New Zealand, the offences requiring adjustment because they differ from another more serious offence only in their mental element are categorised below.

Offences where there is an intent to cause a lesser consequence than materialises

4.24There are offences that involve an intent to cause a lesser consequence than materialises. Where that lesser intent involves a high level of culpability, the approach we took was to make only a small adjustment:

4.25There are some offences in this category that have an intent as to a much lesser consequence. In these cases, the culpability is small and the adjustment required accordingly more substantial. For example, the offence of poisoning with intent to cause annoyance under s 200(2) of the Crimes Act entails an intent to inflict a very low level of harm by comparison with the potential consequences of the act itself (since an intent to cause any injury would amount to the offence of injuring with intent to injure). A reduction in the harm score of 67 per cent was therefore made.

Offences that involve an intent as to an unlawful act but a lesser mental state as to consequence

4.26There are a number of offences that involve an intent to engage in unlawful conduct, but no intent to cause any harmful consequence as a result of that conduct.

4.27Where there is recklessness as to the consequence, we decided that a reduction of 25 per cent is appropriate. For example, the worst instance of an offence of driving with excess blood or breath alcohol, under s 56 of the Land Transport Act 1998, or of driving under the influence of drink or drugs so as to be incapable of having proper control of the vehicle under s 58, will involve significant damage to property as a result of an accident. However, if there were intention as to the damage, it would give rise to the offence of intentional damage under s 269(2) of the Crimes Act. The harm score was therefore reduced by 25 per cent to recognise that the most culpable mental element in relation to that harm is recklessness.

4.28A similar, but less obvious, example in this category is the offence of disorderly assembly under s 5A of the Summary Offences Act. In the worst class of case, the harm caused by that offence will be identical to that caused by the offence of unlawful assembly under s 86 of the Crimes Act. However, the latter offence requires a “common purpose” between the co-offenders (ie an intent to cause that harm). The absence of such a purpose by the co-offenders involved in an offence under s 5A again necessitated a reduction of 25 per cent in the harm score to reflect the fact that the most culpable mental element is recklessness.

4.29Where there is only negligence as to the consequence, we determined that a much greater reduction of 50 per cent is required. For example, the worst instance of the offence of injuring by an unlawful act (s 190 of the Crimes Act) comprises a mens rea of negligence. So too does the worst class of case of allowing a dangerous trap to remain in place. That is because in both cases intentionally or recklessly injuring falls within s 189(2). Similarly, the worst class of case of importing a precursor substance under s 12AC(1) of the Misuse of Drugs Act is negligence as to illegal supply and the harm resulting from it, since an intent in that respect would engage the more serious offence under s 12AB(1). In all cases, the harm score was reduced by 50 per cent to reflect the lesser culpability.

Offences that do not involve an intended unlawful act and have a lesser mental state as to consequence

4.30A number of offences have no intent as to unlawful conduct, and a lesser mental state than intent as to the consequence that ensues from that conduct. In these cases, we took the view that culpability is relatively low, that offenders carry much less responsibility for the consequence, and that a substantial adjustment to the harm score is therefore required.

4.31The offences of driving dangerously or recklessly causing injury or death under s 36 of the Land Transport Act, and of driving with excess blood or breath alcohol causing injury or death under s 61, at first sight do not appear to fall into this category because, in the worst class of case, there is an intent to engage in the unlawful conduct (dangerous, reckless or drunk driving) and a consequence of death or serious injury. But a discount of only 25 per cent in the harm score to reflect the recklessness as to consequence (as in paragraph 4.27) would have placed these offences alongside others with current maximum penalties of 10-14 years. That seems to us inappropriate, because the most serious instances of these cases can (and should) be charged with manslaughter, or wounding or injuring with reckless disregard. The Land Transport Act offences exist because of a perceived reluctance by juries to convict people on these more serious charges in anything other than the most egregious of cases. We therefore adjusted ss 36 and 61 for culpability on the basis that the mental element in the worst class of case is recklessness as to both conduct and consequence, and reduced the harm score by 50 per cent.

4.32Where there is negligence as to the consequence, an even greater adjustment of approximately 75 per cent is justified. For example, in the worst class of case of the offences of careless driving causing injury or death under s 38(2) of the Land Transport Act, the mental element is negligence rather than intent. The same applies to the offence of causing bodily injury or death through the careless use of a firearm under s 53(1) of the Arms Act 1983. In both cases, a reduction of about 75 per cent was made.

4.33A range of offences under the Misuse of Drugs Act fall into the same category. For example, the offence under s 22(2) of failing to comply with a ministerial notice regarding the importation or supply of a controlled drug comprises a mens rea of negligence. That is because other offences (such as the intentional or reckless importation or supply of a controlled drug in s 6 of the Act) are available for offences involving an intent to import or supply unlawfully. Again, the harm score was reduced by 75 per cent to recognise the entirely different character of the conduct from intentional or reckless importation or supply.

Offences that have an ulterior intent as to a consequence that does not materialise

4.34There are some offences with the same actus reus and basic mens rea, but one of the offences additionally has an ulterior intent that enhances culpability. Generally, the increase in the harm score that is required to reflect the additional culpability is small. That is because the offence already entails a harmful consequence, and the more serious intended consequence that does not materialise is a matter of degree rather than kind. For example, the offence of injuring with intent to cause grievous bodily harm under s 189(1) of the Crimes Act is distinguished from the offence of injuring with intent to injure under s 189(2) only by the ulterior intent as to grievous bodily harm. However, the distinction in terms of intent is a fine one and is often difficult to apply in practice. We therefore determined that an upwards adjustment of only 20 per cent in the initial harm score for the former offence was justified (ie the equivalent of a 10 per cent reduction when culpability is reduced).

4.35We took the same approach to the offence of doing an indecent act with intent to insult or offend under s 126 of the Crimes Act. That can be distinguished from the related offence of doing an indecent act in a public place under s 125 only by the ulterior intent to insult or offend, since the worst class of case under s 126 will also be in a public place. An upwards adjustment of about 20 per cent in the initial harm score was again made.

4.36The offence of assault with intent to injure under s 193 of the Crimes Act did not fit this general approach. Both that offence and a common assault under s 196 of the Crimes Act require an assault (the actus reus) and an intention to inflict force (the basic mens rea), but the former offence has an additional mens rea requirement of intending to injure when committing the assault. The difference between the culpability associated with the intentional application of force that does not cause injury (and therefore inflicts only minor harm) and the culpability associated with an intent to inflict significant injury is substantial. We therefore decided that it required a different approach from other offences in this category, and we doubled the harm score (ie the equivalent of a 50 per cent reduction when culpability is reduced).

Offences where the offender is only indirectly responsible for the harm that is intended

4.37There are some offences that require adjustment for culpability because the offence is one or more steps removed from the direct infliction of the harm itself, so that the offender, while intending the harm caused, is only indirectly responsible for it. For example:

4.38In a few cases, the harm is even more remote from the offence, with a number of intermediate steps by others being required before it can materialise. For example, a person who commits the offence under s 12AB(1) of the Misuse of Drugs Act of importing any precursor substance knowing that it will be used to produce or manufacture any controlled drug, is only indirectly responsible for subsequent harmful drug use. The precursor substance is not in itself harmful and must undergo a subsequent manufacturing process, followed by distribution and use before that harm arises. A greater reduction of 50 per cent to reflect that diminished culpability was therefore required.

Omissions

4.39There are a few offences that, in the worst class of case, cause harm through the offender's omission rather than a deliberate act. This justifies some small reduction in recognition of the fact that an omission to act carries somewhat less culpability than a deliberate act. These offences fall into two categories.

4.40First, there are those where, in the worst class of case, the omission is deliberate and directly causes the harm. For example, in the worst class of case of the offence of allowing a dangerous trap to remain in place under s 202(2) of the Crimes Act, injury is caused as a result of a negligent omission (since intentional or reckless injury is covered by s 189(2)). The harm score was reduced by 50 per cent to reflect the negligence component (see paragraph 4.29 above). A further reduction of 25 per cent was then made to reflect the fact that the harm is caused by an omission rather than an act.

4.41Secondly, there are offences where the offender’s role is purely passive and indirectly contributes to a harm that is inflicted by another. In such cases, a much greater discount than 50 per cent is justified. For example, the worst class of case of being a party to treason under s 76 of the Crimes Act entails an offender who, knowing that someone else is about to commit treason, fails without reasonable excuse to use reasonable efforts to prevent it when he or she is in a position to do so. The harm score was reduced by a further reduction of 50 per cent to recognise that the offender's contribution to the harm caused by the offence is purely passive.

4.42Similarly, under the recently created s 195A of the Crimes Act it is an offence if a person who lives in the same household as a child or vulnerable person, or is the staff member of an institution in which such a person resides, knows that the victim is at risk of death, grievous bodily harm or sexual assault and fails to take action to prevent that. In the worst class of such a case, the victim will have died and the offender will have known that the harm was being inflicted and have done nothing to prevent it, although without being a party to it. While there can therefore be no reduction in the harm score on account of a lesser mens rea, the fact that the actual violence is inflicted by another justifies a reduction of 50 per cent in recognition of the offender's limited contribution to the harm.

Offences that incorporate some element of mitigationTop

4.43Finally, there are some offences that require adjustment on account of culpability because their statutory definition, expressly or by implication, incorporates some elements of mitigation which will accordingly be present in the worst class of case. These did not lend themselves to a standard approach. The extent of the adjustment depended upon an assessment of the degree of mitigation in each case. For example:

27Von Hirsch, above n 18, at 71.