Chapter 4
Determining harm and culpability

Overall provisional harm score

4.1Steps 1 and 2 of our methodology provided us with a tool for arriving at total harm scores for the imprisonable offences contained in the five Acts subject to the review. We achieved that by applying Step 3 of our process in the following way:

4.2This exercise produced a provisional ranked list of offences according to their respective total harm scores, which represented the harm caused by the worst class of case of each offence relative to other offences.

4.3There were a number of offences that we put to one side and excluded from our provisional ranking. These fell into three categories.

4.4First, as noted above at paragraph 3.60, we excluded a number of specific attempt and conspiracy offences that in our view ought to be repealed and dealt with instead under the generic conspiracy and attempt provisions in ss 310 and 311 of the Crimes Act 1961.

4.5Secondly, again as noted above at paragraph 3.68, we excluded the offence of counselling or attempting to procure murder under s 174 of the Crimes Act, since that is fully covered by the procurement offence in s 311(2), and with the same maximum penalty.

4.6Thirdly, we excluded the offence under s 249(2) of the Crimes Act of dishonestly accessing a computer system with intent to obtain an advantage or cause a loss that carries a maximum penalty of five years’ imprisonment. The offence under s 249(1) involves dishonestly accessing any computer system and thereby obtaining an advantage or causing a loss, and carries a maximum penalty of seven years’ imprisonment. The difference between the two sections lies in the italicised wording. Section 249(2) therefore appears to be an attempt to commit the offence under s 249(1). We can therefore see no reason why it should not be dealt with under the generic attempt provision and suggest that it should be repealed. However, if it were to be retained as a separate offence, we think that it should have half the maximum penalty of the completed offence in accordance with the general approach to attempts. Accordingly, the present maximum penalty of five years’ imprisonment is too high.

4.7Finally, we excluded five other offences that we found it difficult to score, either because they are fully covered by another offence on the statute book and therefore redundant, or because they are outdated.

4.8The Law Commission recommended the repeal of two of these offences in the report Review of Part 8 of the Crimes Act 1961: Crimes Against the Person:25 s 153(2) of the Crimes Act (failure by an employer to provide necessaries to a servant or apprentice under the age of 16 years), and s 199 of the Crimes Act (acid throwing with intent to injure or disfigure).
4.9The Law Commission recommended the repeal of the third offence in the report Controlling and Regulating Drugs: A Review of the Misuse of Drugs Act 1975:26 s 21 of the Misuse of Drugs Act 1975 (publishing information likely to lead to the identification of a drug in contravention of an order from the court or coroner prohibiting such publication). We assume that the rationale of this provision, which dates back to the Narcotics Act 1961, was concern that publication of the name of a controlled drug would encourage others to use or deal in it and, by doing so, cause harm to themselves or others. However, we are not aware of an order being made under this provision in recent times. It is also in conflict with modern social attitudes and principles. This includes, for example, the view that, wherever possible, it is preferable to make information available to enable individuals to make their own assessment about what is in their best interests. In short, we do not think that it is in the public interest to prohibit publication of the name of a drug.

4.10The other two offences (blasphemous libel and administering an oath to commit an offence under ss 80 and 123 of the Crimes Act respectively) have not been the subject of a prosecution for many years and it is hard to imagine circumstances in modern society when they would be. They should also be repealed.

4.11Finally, we excluded three offences in the Summary Offences Act 1981 that have direct counterparts (with a more severe maximum penalty) in the Crimes Act: common assault (s 9), wilful damage (s 11) and seeking donations by a false pretense (s 15). It has always been difficult to justify these offences, since they have enabled the prosecution, in respect of the same conduct, to lay different charges with essentially identical offence components but different trial procedures and different maximum penalties, depending upon whether the charge is laid under the Summary Offences Act or the Crimes Act.

4.12The only possible benefit arising from this duplication lies in the fact that the offences under the Crimes Act have been eligible for jury trial, but not the offences under the Summary Offences Act. In relation to common assault, the raising of the jury trial threshold in the Criminal Procedure Act 2011 to offences carrying a maximum penalty of two years or more will mean that even this possible benefit will disappear. In any event, we do not think that such a benefit justifies the current offence structure.

4.13It is difficult to see why a charge under the Summary Offences Act should be available for a trivial form of intentional damage, while an equally trivial offence of shoplifting or other petty theft or of unlawful interference with a motor vehicle can only be charged under the Crimes Act. More significantly, we think that the offence structure leaves too much unguided discretion in the hands of the police, effectively allowing them to select the maximum penalty to which the offender will be exposed. If offences are to be laid on the grounds of relative seriousness, the features that distinguish them on that basis (for example, the value of the property damage) ought to be incorporated into the substantive offences themselves and not left to prosecutorial discretion.

4.14Accordingly we think that these three offences in the Summary Offences Act ought to be repealed, and for that reason we have not ranked them. If they were to remain, they would have the same ranking as the equivalent offences in the Crimes Act and thus attract the same maximum penalty, which would destroy the rationale for their existence.

25Law Commission Review of Part 8 of the Crimes Act: Offences Against the Person (NZLC R111, 2009).
26Law Commission Controlling and Regulating Drugs: A Review of the Misuse of Drugs Act 1975 (NZLC R122, 2011).