Chapter 6
Conclusion: anomalies in the maximum penalty structure

Maxima for offences that overlap with other offences

6.31A number of offences are framed in such a way that they encompass conduct captured by other more serious offences. As noted above at paragraph 3.32, our approach in these cases has been to exclude conduct covered by the more serious offence, so the worst case scenario for the lesser offence is set at the threshold point at which the lesser offence tips over into the more serious offence.

6.32However, it seems likely that many maximum penalties for these offences have been set at a high enough level to capture the more serious conduct, even if it has not been charged as such. In our view, this is inappropriate. If the prosecution wishes to allege more serious conduct, it should charge the offender with that conduct. The offender should not effectively be tried and sentenced for conduct covered by a more serious charge than that alleged against him or her.

6.33Perhaps the most obvious offence falling into this category is conversion of a vehicle or other conveyance under s 226 of the Crimes Act. The offence applies only when there is no intention to permanently deprive the owner, but instead the vehicle or conveyance is taken for a period with an intent to later return or abandon it. If there is an intention to permanently deprive the owner, the offence of theft is available as the appropriate charge. Yet the conversion offence carries a maximum penalty of seven years’ imprisonment, the same as that available for theft. It therefore appears to have been set at a level enabling an offender to be punished as if he or she were guilty of theft, even though the intent to permanently deprive has not been proved at trial. In our view, this is inappropriate. If the prosecution wishes to allege an intent to permanently deprive the owner of the vehicle, it should lay the charge that reflects that intent. If not, it should proceed on the basis there was no such intent and the offender should be liable to a maximum penalty commensurate with that. If there is doubt about whether such an intent can be proved, charges can be laid in the alternative. There is accordingly no justification for the seven year maximum penalty.

6.34There is a similar problem with the offence of disabling (stupefying or rendering unconscious) any other person in s 197 of the Crimes Act, which carries a maximum penalty of five years’ imprisonment. As the Law Commission noted in the report Review of Part 8 of the Crimes Act 1961: Crimes Against the Person,31 where stupefying facilitates more serious offending – sexual violation or wounding or injuring with reckless disregard, for example – the more serious offending ought to be charged, with the stupefaction element an aggravating factor to be taken into account on sentence. This offence ought therefore to apply only to cases that do not cause any injury and fall short of an attempt to commit some other more serious offence. For that reason, the Law Commission recommended the maximum penalty be reduced from five years’ to two years’ imprisonment. The ranking produced by our methodology placed it in Category K, alongside offences with substantially varying maxima but an average of a little under four years’ imprisonment.

6.35The offences of bestiality and indecency with animals in ss 143 and 144 of the Crimes Act, carrying maximum penalties of seven years’ imprisonment and three years’ imprisonment respectively, also appear to have been set on the implicit basis that they cause harm to animals. But if there is manifest harm, the appropriate charge is one of the various offences involving ill treatment of animals in the Animal Welfare Act 1999. Looked at in this light, the maximum penalties for bestiality and indecency with animals are, relatively speaking, simply too high. By comparison, the offence of wilful ill-treatment of an animal causing death, serious injury or permanent disability under s 28 of that Act carries a maximum penalty of only five years’ imprisonment, while reckless treatment causing one of those consequences carries a maximum of three years. Our ranking in fact placed bestiality and indecency with animals in the lowest penalty category.

6.36Finally, there are also a number of sex offences in the Crimes Act that appear to have been set so as to capture conduct that properly falls into a more serious offence category involving lack of consent. The offences in s 129A(1) of having sexual connection with another person, and in s 129A(2) of doing an indecent act on another person, knowing that the other person has been induced to consent by threat, carry maximum penalties of 14 years’ imprisonment and five years’ imprisonment respectively. These offences do not involve force or threats that are sufficient to negate consent, since that would then constitute sexual violation or indecent assault. Yet they appear to have been set on the basis that they do. That can be the only explanation for the fact that the difference in maximum penalties – 14 years compared with 20 years and five years compared with seven years – is not greater than it is. When we approached the offences in s 129A(1) and (2) on the basis that consent was not negated, our methodology placed them in Categories I and L, alongside offences with current maximum penalties of five to seven years and two to three years respectively.

31Law Commission , above n 25.