Sentencing Amendment Act 2011

1: Title
This Act is the Sentencing Amendment Act 2011.
2: Commencement
1: This Act comes into force on a date appointed by the Governor-General by Order in Council, and 1 or more orders may be made bringing different provisions into force on different dates.
2: Any provisions of this Act that are not in force on the expiry of the period of 15 months that starts on the date on which this Act receives the Royal assent come into force (despite subsection (1)) on that expiry. Section 2(1) brought into force 13 February 2012 Sentencing Amendment Act 2011 Commencement Order 2011 Section 2(1) brought into force 1 August 2012 Sentencing Amendment Act 2011 Commencement Order 2012
3: Principal Act amended
This Act amends the Sentencing Act 2002 OIC SR 2011/392 2012-02-13 Sentencing Act 2002 Sections 3 to 6, 8, 9, 11 to 14, 31, 39, and 40 of the Sentencing Amendment Act 2011 come into force on 13 February 2012. OIC SR 2012/131 2012-08-01 Sentencing Act 2002 s 2(1) & 2—Sections 7, 10, 15 to 30, and 32 to 38 of the Sentencing Amendment Act 2011 come into force on 1 August 2012. The rest of the Act is already in force.
4: Reparation
1: Section 12(1) or order sentence
2: Section 12(3) or order sentence
3: Section 12
4: In this section, order of reparation
5: Taking into account financial capacity of offender
Section 35
2: Subsection (3) applies if the court is considering whether to impose—
a: more than 1 sentence of reparation on an offender; or
b: a sentence of reparation and a sentence of a fine on an offender; or
c: a sentence of reparation on an offender who is subject to an earlier sentence or order of reparation or an earlier sentence of a fine, or a combination of any of those.
3: The court must take into account that any payments received from the offender must be applied in the order of priority set out in sections 86E to 86G
6: New section 36 substituted
Section 36
36: Payment conditions of sentence of reparation
1: If a court sentences an offender to make reparation, the court may—
a: make an order, under section 81(1)(a)
b: make an order, under section 83(1)
c: direct the Registrar to determine the conditions of payment of the reparation, including whether to—
i: require the offender to pay the reparation immediately under section 83(1)
ii: enter into an arrangement with the offender allowing the offender greater time to pay or allowing the offender to pay by instalments, or both, under section 86
2: If the court does not make an order or give a direction under subsection (1), the reparation must be paid in 1 lump sum within the time allowed for the payment of fines generally by section 80
7: New section 38A inserted
The following section is inserted after section 38
38A: Cancellation of sentence of reparation
1: A court may, on an application under subsection (2) or (3) or on its own initiative,—
a: cancel a sentence of reparation; or
b: cancel a sentence of reparation and substitute any other sentence (including another sentence of reparation) that could have been imposed on the offender at the time when the offender was convicted of the offence for which the sentence was imposed.
2: An offender who is subject to a sentence of reparation or a Registrar may apply in accordance with section 72
3: A Registrar may apply in accordance with section 72
4: The court may make an order under subsection (1) (whether on application or on its own initiative) only if—
a: the person to whom the offender is required to pay the reparation—
i: has been informed and has been given the opportunity to be heard about the matter; or
ii: is unable to be found despite reasonable efforts made by the Registrar; and
b: the court is satisfied that—
i: the ground in subsection (2) or (3) has been established; and
ii: enforcement of the original sentence of reparation under Part 3 section 19 section 28I
5: If the court is considering a substitute sentence,—
a: the court must take the following matters into account:
i: the amount of the original sentence of reparation that has been paid and the amount outstanding:
ii: any other sentences or orders imposed on the offender for the offending for which the original reparation was imposed and the extent to which the reparation was taken into account in imposing those sentences or orders; and
b: if the offender provided false or misleading information about the offender's financial position, the court may take the following matters into account:
i: the extent to which the information was false or misleading:
ii: the offender's culpability in providing the information, including whether, in the court's opinion, the offender intended to mislead the court.
6: If the court cancels a sentence of reparation, the amount of reparation outstanding is deemed to be remitted from the date the order is made or any other date that the court may specify.
8: Determining amount of fine
Section 40
4: Subsection (4A) applies if a court imposes a fine—
a: in addition to a sentence of reparation; or
b: on an offender who is subject to an earlier sentence or order of reparation.
4A: In fixing the amount of the fine, the court must take into account—
a: the amount of reparation payable; and
b: that any payments received from the offender must be applied in the order of priority set out in sections 86E to 86G
9: New section 42A inserted
The following section is inserted after section 42
42A: Offender may be detained for purpose of making declaration
A court may direct that an offender be detained in the custody of the court for a period not exceeding 2 hours for the purpose of making a declaration of financial capacity in accordance with section 42
10: Jurisdiction and procedure
1: The heading above section 72 and cancellation of sentences of reparation
2: Section 72(1) 38A, section
3: Section 72(2)
b: on the chief executive of the Ministry of Justice, if a Registrar is not the applicant under section 38A
c: on the chief executive of the Department of Corrections, if a probation officer is not the applicant under section 54, 54K, 68, or 69I
4: Section 72
2A: An application under section 38A section 79A or 79B
2B: If an application under section 38A
2C: Sections 88AA and 88AC
2D: For the purposes of sections 280C to 280F sections 295 to 297
11: Section 105C repealed
Section 105C
12: Discharge without conviction
1: Section 106
3A: Sections 32 to 38A
2: Section 106
13: Conviction and discharge
1: Section 108
2A: Sections 32 to 38A
2: Section 108
14: Order to come up for sentence if called on
1: Section 110
3A: Sections 32 to 38A
2: Section 110
15: Interpretation of terms used in sections 128 to 142
1: Section 127(1) encumbrance
2: Section 127(1) hire purchase agreement hire purchase agreement
a: an agreement under which goods are let or hired with an option to purchase, however the agreement describes the payments, under which the person who agrees to purchase the goods is given possession of them before the total amount payable has been paid:
b: an agreement for the purchase of goods by instalment payments, however the agreement describes the payments, under which the person who agrees to purchase the goods is given possession of them before the total amount payable has been paid .
3: Section 127(1) leasing agreement lease .
4: Section 127(1) constable section 4 Police employee section 4 secured party section 16 security agreement section 16 security interest section 17 .
16: Confiscation and destruction after third illegal street racing offence
Section 129A
5: The court must not make an order under subsection (3) in respect of a motor vehicle that 1 or more persons treated as a substitute have an interest in if it is satisfied that either of the following applies to each substitute:
a: the substitute did not know, and could not reasonably have known, that the offender would commit the offence or offences; or
b: the substitute took all reasonable steps to prevent the offender from committing the offence or offences.
17: Written caution to persons with interest in motor vehicles involved in offences
1: Section 129B(2) issued and written caution be
2: Section 129B(3)(b)
ii: is a secured party under a security agreement relating to the motor vehicle, or the lessor of the motor vehicle under a lease, but has no relationship of another kind with the offender.
3: Section 129B(7)
c: by being left for the person at the person's place of business with another person (other than the offender).
4: Section 129B(8)
aa: a constable: .
5: Section 129B(8)(a) authorised by the Commissioner of Police to serve documents under this Act
6: Section 129B(9) the date, and the time of service date, time, and mode of service
18: Review of written caution
Section 129C(1)
c: the applicant is a secured party under a security agreement relating to the motor vehicle, or the lessor of the motor vehicle under a lease, but has no relationship of another kind with the offender: .
19: Appeal against confiscation by persons treated as substitutes
1: Section 129E(1)
a: the motor vehicle was stolen or converted at the material time:
b: the appellant did not own or have an interest in the motor vehicle at the material time:
c: the appellant is a secured party under a security agreement relating to the motor vehicle, or the lessor of the motor vehicle under a lease, but has no relationship of another kind with the offender:
d: the motor vehicle was let on hire at the material time in accordance with a rental service licence under the Land Transport Act 1998
e: the appellant took all reasonable steps to prevent the offender from committing the offence or offences:
f: the appellant had not, before the commission of the offence or offences, been served with a written caution under section 129B
g: the appellant did not know, and could not reasonably have known, that the offender would commit the offence or offences:
h: confiscation of the motor vehicle is causing, or will cause, undue hardship to the appellant or any other person (other than the offender).
2: Section 129E(2)(b) substitute who substitute or who
3: Section 129E(5)(a) subsection (1)(b) or (g) subsection (1)(a), (d), or (h)
20: New section 129EA inserted
The following section is inserted after section 129E
129EA: Appeal against confiscation by third party
1: If the court orders the confiscation of a motor vehicle under section 128, 129, or 129A
2: The appellant must serve the notice of appeal on—
a: the prosecuting agency in the proceeding that resulted in the relevant conviction; and
b: any person (other than the offender or, as the case may be, the substitute for the offender) who owns or has an interest in the vehicle.
3: The persons described in subsection (2) are parties to the appeal.
4: The right of appeal under subsection (1) is independent of the offender's right of appeal against conviction and sentence for the relevant offence or offences.
5: The court must set aside the confiscation of the motor vehicle if satisfied that the ground of appeal stated in subsection (1) applies.
6: For the purposes of subsection (1),—
a: if the order was made in a District Court, the appeal must be brought in the High Court in accordance with the High Court Rules:
b: if the order was made in the High Court, the appeal must be brought in the Court of Appeal in accordance with the rules of court governing civil appeals to that court.
21: Warning notice to secured parties if confiscation not ordered for second illegal street racing offence
Section 129F(2)(c) an encumbrance a security agreement or lease
22: Court may order declaration of ownership to be completed
Section 130(2)(b) encumbrance security interest or lease
23: Enforcement of confiscation order
Section 132(5)
24: Registrar may direct order to be enforced in another District Court
Section 135(1) , by order signed by the Registrar,
25: Offender must not acquire new interest in motor vehicle for 12 months
Section 136(5) sections 130 sections 129EA, 130
26: New section 136A substituted
Section 136A
136A: Registrar must apply for deregistration of motor vehicle subject to confiscation and destruction order
If, under section 129A or 136(4)
a: is, for the purposes of the Land Transport Act 1998
b: must make that application before the motor vehicle is sold or disposed of.
27: Sale of confiscated motor vehicles
1: Section 137(2) in writing
2: Section 137(3)
c: if 1 or more security agreements have been brought to the notice of the Registrar before the proceeds of sale are fully applied, and have been established to the Registrar's satisfaction, in payment to each secured party of the amount to which the secured party would, but for the extinguishment of the security interest concerned, have been entitled under that agreement: .
3: Section 137(3)(e) section 105B under
4: Section 137(3)
fa: in payment of any fees and accident insurance levies prescribed under section 242(2)(b)
fb: in payment of any road user charges under the Road User Charges Act 2012 .
5: Section 137
3A: If any proceeds of sale are required to be applied to 2 or more security interests under subsection (3)(c), those proceeds must be applied in the order of priority determined for those security interests by Part 7 or 8
6: Section 137(4) paragraphs (d) and (f) paragraphs (d) to (f)
7: Section 137
5: A motor vehicle may be sold under this section even though it fails to comply in any respect with section 242
a: is, despite that Act or any other enactment, entitled to tow the motor vehicle to any appropriate place; and
b: in so towing the vehicle, is under no criminal or civil liability merely because of the failure of the vehicle to comply with that section; and
c: must comply in all respects with that Act as soon as the motor vehicle has been towed to that place.
6: If the Registrar considers that a motor vehicle is not roadworthy and that it would be uneconomic to render it roadworthy, the Registrar must, before the motor vehicle is sold under this section, apply, under the Land Transport Act 1998
7: The person to whom a motor vehicle is sold under this section obtains, by virtue of this section, good title to the motor vehicle free of all ownership interests and other proprietary interests held in the motor vehicle before that sale. Section 27(4) amended 1 August 2012 section 94 Road User Charges Act 2012
28: Certain sales conditional on dismantling and destruction
Section 137A(4) The property in the motor vehicle does not pass from the Crown Despite section 137(7)
29: Sale of motor vehicle surrendered or recovered under section 137B
Section 137C(1) and (2) , (2), (5), and (7)
30: Disposal of unsaleable confiscated vehicle
Section 138
2: If the Registrar proposes to dispose of a motor vehicle under subsection (1), the Registrar—
a: is, for the purposes of the Land Transport Act 1998 and any regulations made under it, entitled to apply for the cancellation of the registration of the motor vehicle; and
b: must make that application before the disposal of the motor vehicle.
3: The person to whom a motor vehicle is disposed of under this section obtains, by virtue of this section, good title to the motor vehicle free of all ownership interests and other proprietary interests held in the motor vehicle before that disposition.
31: Offender liable for outstanding costs of seizure, storage, and sale
1: Section 138A
4: Part 3 section 84 section 19 section 28I
2: Section 138A(5)
a: by omitting appearing to have been signed issued
b: by omitting , without proof of the signature or office of the person appearing to have signed the certificate
32: Procedure if notice given that vehicle subject to encumbrance
1: The heading to section 139 encumbrance security agreement
2: Section 139(1)
a: by omitting within 1 month after the date of sale before the proceeds of sale are fully applied
b: by omitting any encumbrance a security agreement
33: Lessor under leasing agreement may apply to Registrar
1: The heading to section 140 under leasing agreement
2: Section 140(1)
a: omitting leasing agreement lease
b: inserting or disposed of has sold
c: omitting terms of the agreement terms of the lease
3: Section 140
2A: On the transfer of the motor vehicle under subsection (2) to the lessor, the lease is cancelled.
34: New section 140A inserted
The following section is inserted after section 140
140A: What happens if lessor does not apply to Registrar before motor vehicle sold or disposed of
1: This section applies if—
a: section 140
b: the lessor does not apply to the court for the transfer of the motor vehicle under section 140(1)
c: the vehicle is sold; and
d: the proceeds of the sale have not been fully applied.
2: The lessor may apply to the court for the release of the proceeds of the sale of the motor vehicle that have not been applied.
3: On an application under subsection (2), the Registrar or a District Court Judge may release the proceeds of the sale of the motor vehicle in accordance with subsections (4) and (5).
4: The proceeds of the sale of the motor vehicle must be applied in accordance with section 137 section 127(1)
5: However, despite subsection (4), section 137
a: the proceeds of the sale of the motor vehicle must be applied in payment to the lessor of the amount to which the lessor would, but for the sale, have been entitled to under the lease; and
b: the proceeds of the sale of the motor vehicle must be applied in the manner and order of priority set out in section 137
i: in the case of a lease for a term of less than 1 year, those proceeds must be applied for the payment to the lessor described in paragraph (a) after they are applied for the payments described in section 137(3)(a) and (b)
ii: in the case of a lease for a term of more than 1 year, those proceeds must be applied for the payment to the lessor described in paragraph (a) as if they were payments described in section 137(3)(c),
6: On the release of the proceeds of the sale of the motor vehicle to the lessor, the lease is cancelled.
35: Secured party may apply to court
1: Section 141(1) any encumbrance (other than a leasing agreement) a security agreement
2: Section 141(1) or disposed of has sold
3: Section 141(4) This section Subsection (3)
4: Section 141
3A: If 2 or more secured parties have applied for an order under subsection (3), then the court must transfer the motor vehicle to the secured party with the highest-ranking security interest under the order of priority determined by Part 7 or 8
5: Section 141
5: The person to whom a motor vehicle is sold under a direction given under subsection (3)(b) obtains, by virtue of this section, good title to the motor vehicle free of all ownership interests and other proprietary interests held in the motor vehicle before that sale.
36: Certain payments required before transfers take effect
Section 141A(3) or its disposal under section 138
37: Application of proceeds of sale by secured party
1: Section 141B(1)
b: pay into court the proceeds of the sale, less—
i: any costs paid under section 141A
ii: the amount of the costs and expenses of, and incidental to, the sale.
2: Section 141B(2) section 137(3)(d) to (g) section 137(3)(c) to (g) and (3A)
38: New section 141C inserted
The following section is inserted after section 141B
141C: Failure by secured party to sell or account for proceeds
1: If the court has directed a secured party under section 141(3)(b)
2: If the person in possession of the motor vehicle fails to surrender the motor vehicle at the time and place specified by the Registrar, the court may issue a warrant in the prescribed form authorising the Registrar or any bailiff or constable to recover the motor vehicle.
3: For the purpose of executing a warrant issued under subsection (2), the Registrar or bailiff or constable executing it may enter on any premises, by force if necessary, if the Registrar, bailiff, or constable has reasonable cause to believe that the motor vehicle in respect of which the warrant is issued is on those premises.
4: If any person is in actual occupation of the premises, the Registrar or bailiff or constable must, on entering, produce the warrant to that person.
5: If a motor vehicle is surrendered to or recovered by any bailiff or constable under this section, that officer must, as soon as practicable, deliver it into the custody of the Registrar.
6: Sections 133 and 134
7: As soon as practicable after the motor vehicle is delivered into the Registrar's custody under subsection (5), the Registrar must arrange for its sale under section 137 section 138
8: A secured party who fails, in whole or in part, to pay into court the money required under section 141B(1)(b)
39: Section 145 substituted
Section 145
145: Maximum period of detention for administrative tasks
1: The purpose of this section is to provide for the maximum period for which an offender may be detained in the custody of the court, on any 1 occasion, to allow any administrative tasks to be completed if—
a: 2 or more of those tasks apply or relate to the offender; and
b: they have to be completed at the same time.
2: An offender may be detained in the custody of the court for a period not exceeding 3 hours if the offender is required, at any time before sentencing, to complete both of the following:
a: make a declaration of financial capacity in accordance with section 42
b: make a declaration of ownership of a motor vehicle in accordance with section 130
3: An offender may be detained in the custody of the court for a period specified in subsection (4) if, at any time after sentencing, 2 or more of the following are required to be completed:
a: the offender to make a declaration of financial capacity in accordance with section 42
b: an order for a community-based sentence to be drawn up and a copy given to the offender under section 74
c: an order for a sentence of home detention to be drawn up and a copy given to the offender under section 80ZC
d: a non-association order to be drawn up and a copy given to the offender under section 115
e: a protection order to be drawn up and served on the offender under section 123E
4: The period referred to in subsection (3) is—
a: a period not exceeding 3 hours if any 2 administrative tasks are required to be completed; or
b: a period not exceeding 4 hours if any 3 or more administrative tasks are required to be completed.
5: If an offender is detained in the custody of the court for 2 or more orders for community-based sentences to be drawn up under section 74
6: Nothing in this section limits or affects sections 42A, 74(4), 80ZC(4), 115(2), 123E(2), and 130(3)
7: In this section, administrative task
40: Sections 145A to 145D repealed
Sections 145A to 145D