Chapter 6
Conclusion: anomalies in the maximum penalty structure

Maxima that do not appropriately reflect the range of interests harmed or put at risk by the offence

6.19A number of offences have current maximum penalties that are so substantially at odds with the maximum penalties provided for the other offences with which they have been placed in our ranking that it seems apparent that they do not properly reflect the extent to which the interests affected by them are harmed or put at risk.

6.20First, the offences of driving with excess breath or blood alcohol, and of driving under the influence of alcohol or drugs so as to be incapable of having proper control of the vehicle, under ss 56 and 58 of the Land Transport Act 1998 respectively, carry a maximum penalty of two years’ imprisonment when the offender has two or more previous convictions for the offence. In the worst class of case, the offence will involve a very high level of intoxication, a very high risk to other motorists and substantial damage to other property, committed by an offender with a very long record of similar offending. When the harms caused or risked were properly weighed up, their scores under our methodology placed them in Category J, alongside other offences with maximum penalties that are generally substantially higher than two years.

6.21Secondly, the offence of unauthorised disclosure of official information under s 20A of the Summary Offences Act carries a maximum penalty of three months’ imprisonment. It is committed in circumstances where the offender not only knows that he or she does not have authority to pass on the information but also knows that it is likely to endanger safety; prejudice the prevention, investigation, or detection of offences; prejudice the safe custody of offenders or defendants; or seriously damage the national economy. In the worst class of case, it may indirectly result in serious physical harm to an individual or widespread and significant financial loss. Our scoring placed it in Category K alongside offences that as a group should, in our view, (and currently generally do) attract maximum penalties substantially in excess of three months.

6.22Thirdly, the offence of contaminating food, crops, water or other products under s 298B of the Crimes Act carries a maximum penalty of 10 years, the same as that provided for the offence of causing disease or sickness in animals under s 298A. The former offence requires that the offender either intend to harm a person or cause major economic loss or major damage to the national economy, or at least be reckless as to one of those consequences. The latter, in contrast, requires that the offender intends only to pose a serious risk to the health or safety of an animal population that is likely to cause major damage to the national economy, or at least be reckless as to that consequence. In the worst class of case, therefore, the offence under s 298B will not only cause major economic harm to the community as a whole but will also pose a significant and widespread risk to public health and safety. While the maximum penalty should not be set on the basis that serious harm to public health actually materialises (since that would then comprise the offence of wounding with intent or with reckless disregard under s 188), it nevertheless needs to take into account the risk of such harm. The fact that it has the same maximum penalty as s 298A strongly suggests that it has not done so. The combination of both harm to the economy and widespread risk to public health led to a score under our methodology that placed this in the highest category of seriousness.

6.23Fourthly, the offence of dealing in a Class A drug under s 6(2)(a) of the Misuse of Drugs Act 1975 carries a maximum penalty of life imprisonment. We think that the harm to collective welfare arising from such an offence is at the highest level, and that there is also an extremely high risk of serious harm to physical integrity. However, in our view it does not warrant the maximum penalty that is otherwise reserved only for murder, manslaughter, treason and piracy involving murder (and, as we note below in paragraph 6.26, should in any case be removed from manslaughter as well). On our methodology, it was placed alongside offences with current maxima of 14 years’ imprisonment.

6.24Finally, the offence of sabotage under s 79 of the Crimes Act carries a maximum penalty of 10 years’ imprisonment. However, in the worst class of case the offender will have caused enormous destruction of, or damage to, property that is necessary for the safety or health of the public or for the safety or security of New Zealand, with enormous consequences for the national interest. In terms of relativity, therefore, it does not make sense that the maximum penalty for such an offence places it alongside burglary and forgery. Our scoring placed it alongside offences with current maxima of 14 years’ imprisonment.