Chapter 6
Conclusion: anomalies in the maximum penalty structure

Maxima that are based on an inconsistent approach to preparatory conduct

6.39We have already noted, at paragraphs 3.59–3.60 above, that a number of attempt and conspiracy offences specifically provided for ought to be repealed and dealt with under the generic attempt and conspiracy provisions contained in ss 310 and 311 of the Crimes Act. We have also argued, at paragraph 6.13–6.18 above, some that do need to remain as specific offences have maximum penalties that are out of alignment with the harm they cause or risk. For example, the maximum penalties for attempted sexual exploitation of a person with a significant impairment under s 138(2) of the Crimes Act, and of attempted sexual connection with a dependent family member under the age of 18 years under s 131(2) of the Crimes Act, are too high because they draw no distinction between the attempt and the completed offence.

6.40In addition, there are other offences that are essentially preparatory in nature. As noted above at paragraph 3.69, we ranked these on the basis of their potential to cause harm rather than their infliction of actual harm, and in doing so, identified a number of glaring anomalies in the maximum penalties attaching to some of them.

6.41Some of these appear to place undue emphasis upon the diminution in culpability arising from the fact the offending conduct is at an early stage and give insufficient recognition to the seriousness of the intended conduct and its consequences. Three offences fall into this category:

6.42In contrast, the offence under s 264 of the Crimes Act (possessing an instrument that is capable of being used to forge a document, without lawful authority or reasonable excuse and with intent to use it for such a purpose) appears to place undue weight upon the intended conduct, without having sufficient regard to the fact that it will not have reached the stage of an attempt. It is punishable by up to 10 years’ imprisonment, the same maximum penalty as that available for forgery itself. This takes no account of the fact that, even in the worst class of case, no forgery will actually have taken place. We placed the offence in Category J, alongside offences predominantly carrying a current maximum of between five and seven years’ imprisonment.

6.43The same may be said of counterfeiting public seals under s 261 of the Crimes Act. This offence is currently punishable by up to 10 years’ imprisonment. It does not in itself cause significant harm; instead, it is conduct preparatory to the use of those seals for an unlawful purpose. We accordingly scored it on a risk basis and placed it together with the s 264 offence. As with that offence, its current maximum, in relativity terms, is therefore substantially too high.

6.44The equivalent offences in relation to documents created for private purposes in ss 262 and 265 of the Crimes Act have similar problems. The s 262 offence (counterfeiting corporate seals) is committed by a person who unlawfully makes or counterfeits any seal or stamp used by a company or other corporate body (other than a public body), or uses any such seal or stamp knowing it to be counterfeit. It is punishable by a maximum penalty of five years’ imprisonment. In an age of electronic registers and electronically authenticated documents, we are unsure of the circumstances in which this offence would now be used and think that, if it were committed, the harm caused by it would be minimal unless it tipped over into a more serious offence such as forgery of a document for advantage under s 256(1) or altering a document with intent to deceive under s 258. The same may be said of the offence of imitating customary marks under s 265, also punishable a maximum of five years’ imprisonment. For this reason, we have placed them in Category M, alongside offences that (with the exception of the Arms Act offences) largely have current maximum penalties between three months and three years.

6.45Leaving aside whether the maximum penalties are too high or too low, the relativities between some of these offences are also inexplicable. For example, while the maximum penalties for the offences in s 55 of the Arms Act and s 272 of the Crimes Act are five years’ and two years’ imprisonment respectively, the offences of being armed with a weapon with intent to commit burglary under s 232(2) of the Crimes Act, and of possessing an instrument with intent to use it to commit burglary under s 233, carry maxima of five years’ imprisonment and three years’ imprisonment respectively. Given that, in the worst class of case under ss 55 and 272 the intended offence will be murder, it is obvious that the maximum penalties under both ss 232(2) and 233 should be substantially lower. They are not.

6.46Finally, we should draw attention to the offence in s 12AB(2) of the Misuse of Drugs Act of importing a precursor substance knowing that it will be used to produce or manufacture a controlled drug. Essentially this too is preparatory conduct. The Law Commission noted in its report Controlling and Regulating Drugs,32 precursor substances also have legitimate industrial or medical purposes. Where they are themselves a psychoactive substance, they should be classified as a controlled drug and treated accordingly. Otherwise the maximum penalty attached to offences relating to them should be set on the basis that the harm they cause is indirect and contingent on the use to which they are put. In order to give effect to that, the Law Commission recommended that each precursor substance should be separately scheduled as an A, B or C precursor, depending upon the classification of the most harmful drug it is potentially used to produce, and the maximum penalty should be set at approximately half the maximum for the offences relating to the appropriate class of the controlled drug itself.

6.47In relation to Class A and Class B precursors, the current maximum penalty of seven years’ imprisonment for the offence in s 12AB(1) is more or less consistent with this. Furthermore, our methodology, which used Class A precursors as the worst class of case, placed the offence at the bottom of Category J, alongside offences predominantly in the three to seven year range.

6.48However, the current maximum penalty is, relatively speaking, clearly too high for precursors of Class C drugs and does not take sufficient account of the fact that it is merely preparatory conduct. We reiterate the view that, if the statute is to draw a distinction between Class A, B and C drugs themselves, it should also draw a distinction between the precursors to those substances and set different maximum penalties for offences relating to each.

32Law Commission above n 26.