Devising and consulting on draft penalty categories
Determining penalty categories
5.1Having finalised our ranking, we then turned to Step 6 of our methodology: the development of draft penalty categories. The adjusted ranked list from Step 5 was divided into a number of categories using natural breaks that appeared between clusters of offences. The result grouped offences of similar seriousness together in the same penalty category. The categories that we developed for this purpose (after the adjustments described in this chapter) are set out in Appendix D.
5.2We found that our scoring tool was not always sensitive enough to make the necessary distinctions between one offence and another and that there was a need to shift some offences to a higher or lower penalty category in order to adequately distinguish them from other cognate offences. For example:
- Under s 267(3) of the Crimes Act 1961, it is an offence punishable by five years’ imprisonment intentionally to damage any property by fire or explosive, with reckless disregard for the safety of any other property. Because damage to property belonging to others is covered by the offences in s 267(1) and (2), the actual damage under this offence is limited to the offender's own property; there is no more than a risk of damage to the property of others. Although the harm score placed the offence in Category I, we moved it to the bottom of Category J, in order to distinguish it from, for example, the offence of intentionally or recklessly destroying the property of others (by means other than fire) under s 269(2).
- The offence of supplying a Class C controlled drug to a person under 18 under s 6(2)(d) of the Misuse of Drugs Act 1975, or selling it to an adult under s 6(2)(e), was moved down one category (from Category G to Category H) so that it was less far removed from the cognate offence of supplying a Class C drug under s 7(2)(b). While the former offence is clearly more serious, in that it is characterised by supply to a young person and/or for profit, that difference did not seem to justify a separation of five penalty categories.
- The offence of aggravated careless use of a motor vehicle causing injury or death under s 39(1) of the Land Transport 1998 – that is, careless use combined with some other traffic infringement – was moved down one category (from Category K to Category L) in order to ensure that it was only one penalty category above careless use causing injury or death, since in practice there is very little difference between aggravated careless use and careless use.
- Under s 14 of the Summary Offences Act 1981 it is an offence to possess burglary tools in circumstances that show a prima facie intent to use them for burglary, punishable by three months’ imprisonment. This is to be distinguished from the offence of possession of burglary tools with intent to use them under s 233 of the Crimes Act, currently punishable by three years’ imprisonment. On our scoring, they were ranked only one penalty category apart. However, since the latter offence requires proof of intent while the former requires no more than proof of possession in suspicious circumstances, we thought that this did not adequately differentiate between the two. We therefore shifted s 14 down one penalty category (from Category M to N).
5.3We also found that some offences that were close to the cusp between penalty categories needed to be shifted to a higher or lower category in order to ensure that cognate offences that on their face belong together were not being placed in different categories. For example:
- Sections 188(1), 200(1) and 201 of the Crimes Act were shifted to Category C from Category D; and
- Sections 39(1) and 62 of the Land Transport Act were shifted to Category K from Category L.