Chapter 6
Conclusion: anomalies in the maximum penalty structure

Maxima that are out of line with those for other cognate offences

6.12Some offences have maximum penalties so inconsistent with those attaching to other cognate offences that the rationale for the maximum is difficult to comprehend.

6.13First, there are a number of similar and overlapping offences under the broad umbrella of perverting the course of justice in ss 108-117 of the Crimes Act 1961 and s 24 of the Summary Offences Act 1981. While in most instances the maximum penalties seem to be aligned well, there are a couple of glaring exceptions:

6.14Secondly, the offences of attempted sexual exploitation of a person with a significant impairment in s 138(2) of the Crimes Act, and of attempted sexual connection with a young person under 16 in s 134(2), carry maximum penalties of 10 years, the same as that available for the completed offence under s 138(1). Similarly, the offence of attempting to have sexual connection with a dependent family member under the age of 18 years under s 131(2) of the Crimes Act carries a maximum penalty of seven years, the same as that for the completed offence under s 131(1). For the reasons outlined above at paragraph 3.57, we do not think that these offences should be treated in accordance with the usual attempt rules. As with attempted sexual violation, the maximum penalty should recognise that much of the harm that would be inflicted by the completed offence will also arise in the course of an attempt. Nevertheless, we cannot discern any rationale for setting a maximum penalty at the same level. Our scoring placed the completed offence in s 138(1) in Category G in our ranking; the completed offence in s 134(1) in Category F; and the completed offence under s 131(2) in Category H. In contrast, the attempts were placed in Categories J, H and K respectively. Given the other offences that appear in each category on the ranking, the maximum penalties for these attempt offences are, relatively speaking, currently set too high.

6.15Thirdly, the offences of intentionally damaging one’s own property with reckless disregard for the safety of other property under ss 267(3) and 269(3) of the Crimes Act are punishable by five years’ imprisonment and seven years’ imprisonment respectively. Both of these maximum penalties seem to be substantially too high, since it is not an offence to damage one’s own property and the worst class of case accordingly involves either recklessness without damage to other property or the negligent damage of other property. We placed the offences in categories N and M respectively, alongside offences that (with the exception of the Arms Act 1983 offences) largely have maximum penalties between three years and three months. More significantly, the only difference between the two offences is that s 267(3) involves damage by fire, while s 269(3) involves damage by other means. Given that damage by fire is an inherently more dangerous activity than damage by other means, the fact that s 276(3) has a lower maximum penalty is mystifying; the converse ought to apply.

6.16Fourthly, the offence under s 242 of the Crimes Act involves knowingly or recklessly making a false statement (for example, in a prospectus) with an intent to deceive or to induce any person to make an investment. If the deception or inducement causes loss to another person, that will amount to the offence of obtaining by deception or causing loss by deception under s 241, which would seem to be a more appropriate charge in such a circumstance. Section 242 should arguably therefore be confined to cases where the full statement is made but no other person has yet suffered loss. Yet s 242 carries a maximum penalty of 10 years’ imprisonment, while s 241 carries a maximum penalty of only seven years. Even if s 242 were appropriate to deal with cases of actual loss, it is difficult to see why a deception by means of a false statement is more culpable than a deception by other means. If the loss caused by the deception is the same, then the penalty ought to be the same. The relativities between s 241 and s 242 do not make sense.

6.17Fifthly, the offence under s 20A of the Summary Offences Act involves the communication of official information knowing that there is no proper authority to do so and that the communication is likely (among other things) to endanger safety, prejudice law enforcement or seriously damage the economy of New Zealand. It is punishable by a maximum of three months’ imprisonment. There is a corresponding offence under s 78A of the Crimes Act that involves the communication of official information, knowing that there is no proper authority to do so and that the communication is likely to prejudice the security or defence of New Zealand. It is punishable by a maximum of three years’ imprisonment. The difference between the two offences is that the former requires a risk to personal safety, law enforcement or the economy of New Zealand, while the latter requires a risk to security and defence. Otherwise the offences are in essence identical. While an attack on security and defence may be regarded as a little more serious than an attack on the national economy, it must be doubted whether this could possibly justify the difference between the two maximum penalties. Relatively speaking, we think that the former is too low and the latter is too high.

6.18Finally, the offence of doing an act in a public place that is likely to cause injury under s 12 of the Summary Offences Act, and of doing anything with a thing in a public place that is likely to cause injury under s 13, both carry a maximum penalty of three months’ imprisonment. However, the maximum culpability associated with the former offence is negligence, while the worst instance of the latter offence comprises recklessness (ie knowledge of the risk and an unreasonable decision to take the risk). The substantial difference in culpability ought obviously to be reflected in a different maximum penalty.

29Conteh v Police [1956] AC 158 (PC).