Recommended Sentencing - New Zealand

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Offences with knowledge in relation to objectionable publications

124 Offences involving knowledge in relation to objectionable publications

    (1) Every person commits an offence against this Act who does any act mentioned in section 123(1), knowing or having reasonable cause to believe that the publication is objectionable.

    (2) Every person who commits an offence against subsection (1) is liable on conviction,—

        (a) in the case of an individual, to imprisonment for a term not exceeding 10 years:

        (b) in the case of a body corporate, to a fine not exceeding $200,000.

124A Where distribution, importation, etc, not an offence

    (1) Nothing in section 123 or section 124 makes it an offence for a person referred to in any of paragraphs (a) to (l) of section 131(4) to do any or all of the following things for the purpose of, and in connection with, his or her official duties:

        (a) import a publication into New Zealand (whether with the involvement of an overseas official or not):

        (b) export a publication from New Zealand to an overseas official:

        (c) distribute a publication to a person referred to in any of paragraphs (a) to (l) of section 131(4) if that person takes possession of the publication for the purpose of, and in connection with, his or her official duties:

        (d) make a copy of a publication for the purposes of distribution of the kind specified in paragraph (c):

        (e) be in possession of a publication for the purposes of distribution of the kind specified in paragraph (c).

    (2) In subsection (1), overseas official means a person in a country other than New Zealand who holds an office in that country that corresponds to an office referred to in section 131(4), and who is exercising or performing the duties, functions, or powers of that office.

    (3) This subsection applies to a charge under section 123 or section 124 that the defendant—

        (a) distributed a publication; or

        (b) made a copy of a publication for the purposes of distribution to any other person; or

        (c) possessed a publication for the purposes of distribution to any other person.

    (4) It is a defence to a charge to which subsection (3) applies if the defendant proves that the act to which that charge relates was done, in good faith, in accordance with any of paragraphs (a) to (f) of section 131(5).

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Offences of strict liability involving restricted publications

125 Offences of strict liability involving restricted publications

    (1) Every person commits an offence against this Act who—

        (a) supplies, distributes, exhibits, displays, or otherwise deals with a restricted publication otherwise than in accordance with the classification assigned to that publication under this Act; or

        (b) delivers to any person any restricted publication with intent that it should be dealt with by that person or any other person in such manner as to constitute an offence against this section.

    (2) Every person who commits an offence against subsection (1) is liable on conviction to a fine not exceeding,—

        (a) in the case of an individual, $3,000:

        (b) in the case of a body corporate, $10,000.

    (3) It shall be no defence to a charge under subsection (1) that the defendant had no knowledge or no reasonable cause to believe that the publication to which the charge relates was a restricted publication.

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Offences involving knowledge in relation to restricted publications

126 Offences involving knowledge in relation to restricted publications

    (1) Every person commits an offence against this Act who—

        (a) does any act mentioned in section 125(1) knowing or having reasonable cause to believe that the publication is a restricted publication; or

        (b) supplies, distributes, exhibits, or displays to any person under the age of 18 years any publication—

            (i) that is objectionable if made available to a person of the age of the person to whom it is so supplied, distributed, exhibited, or displayed; and

            (ii) that the person so supplying, distributing, exhibiting, or displaying it knows is likely to be classified under this Act as objectionable if made available to a person of the age of the other person.

    (2) Every person who commits an offence against subsection (1) is liable on conviction,—

        (a) in the case of an individual, to imprisonment for a term not exceeding 3 months or to a fine not exceeding $10,000:

        (b) in the case of a body corporate, to a fine not exceeding $25,000.

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Exhibition to persons under 18

127 Exhibition to persons under 18

    (1) Every person commits an offence against this Act who exhibits or displays an objectionable publication to any person under the age of 18 years.

    (2) Every person who commits an offence against subsection (1) is liable on conviction,—

        (a) in the case of an individual, to a fine not exceeding $10,000:

        (b) in the case of a body corporate, to a fine not exceeding $30,000.

    (3) It shall be no defence to a charge under subsection (1) that the defendant had no knowledge or no reasonable cause to believe that the publication to which the charge relates was objectionable.

    (4) Every person commits an offence against this Act who exhibits or displays an objectionable publication to any person under the age of 18 years knowing or having reasonable cause to believe that the publication is objectionable.

    (5) Every person who commits an offence against subsection (4) is liable on conviction,—

        (a) in the case of an individual, to imprisonment for a term not exceeding 10 years:

        (b) in the case of a body corporate, to a fine not exceeding $200,000.

128 Circumstances when exhibition or display not an offence

    Nothing in section 123 or section 124 applies to the exhibition or display, to any person, of any publication where the publication is exhibited or displayed to that person—

        (a) for educational or professional purposes; and

        (b) by or at the direction of the Chief Censor; and

        (c) at premises occupied by the Classification Office.

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Offences in public place

129 Offences in public place

(1) Every person commits an offence against this Act who exhibits or displays an objectionable publication in or within view of a public place.

(2) It shall be no defence to a charge under subsection (1) that the defendant had no knowledge or no reasonable cause to believe that the publication to which the charge relates was objectionable.

(2A) Every person who commits an offence against subsection (1) is liable on conviction,—

    (a) in the case of an individual, to a fine not exceeding $10,000:

    (b) in the case of a body corporate, to a fine not exceeding $30,000.

(3) Every person commits an offence against this Act who distributes an objectionable publication to any person in a public place knowing or having reasonable cause to believe that the publication is objectionable.

(4) Every person who commits an offence against subsection (3) is liable on conviction,—

    (a) in the case of an individual, to imprisonment for a term not exceeding 1 year or to a fine not exceeding $20,000:

    (b) in the case of a body corporate, to a fine not exceeding $50,000.

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Breach of conditions on display of restricted publications

130 Breach of conditions on display of restricted publications

    (1) Every person commits an offence against this Act who—

        (a) publicly displays any restricted publication or any film poster or advertising poster otherwise than in accordance with any condition or conditions imposed pursuant to section 27 in respect of that publication or poster; or

        (b) publicly displays any restricted publication or any film poster or advertising poster in contravention of any such condition.

    (2) Every person who commits an offence against subsection (1) is liable on conviction to a fine not exceeding,—

        (a) in the case of an individual, $5,000:

        (b) in the case of a body corporate, $15,000.

    (3) It shall be no defence to a charge under this section that the defendant had no knowledge of the condition or conditions applicable to the publication or poster to which the charge relates.

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Offence to possess objectionable publication

131 Offence to possess objectionable publication

    (1) Subject to subsections (4) and (5), every person commits an offence against this Act who, without lawful authority or excuse, has in that person's possession an objectionable publication.

    (2) Every person who commits an offence against subsection (1) is liable on conviction to a fine not exceeding,—

        (a) in the case of an individual, $2,000:

        (b) in the case of a body corporate, $5,000.

    (3) It shall be no defence to a charge under subsection (1) that the defendant had no knowledge or no reasonable cause to believe that the publication to which the charge relates was objectionable.

    (4) Nothing in subsection (1) makes it an offence for any of the following persons to be in possession of an objectionable publication, where such possession is for the purpose of and in connection with the person's official duties:

        (a) the Chief Censor:

        (b) the Deputy Chief Censor:

        (c) any classification officer:

        (d) any person holding office pursuant to clause 2 of Schedule 1:

        (e) any member of the Board:

        (f) the labelling body or any person who is carrying out the functions of the labelling body:

        (g) any Inspector:

        (h) any constable:

        (i) any officer of the Customs:

        (j) any Judge of the High Court, or District Court Judge, Coroner, Justice, or Community Magistrate:

        (k) in relation to any publication delivered to the National Librarian pursuant to Part 4 of the National Library of New Zealand (Te Puna Mātauranga o Aotearoa) Act 2003, the National Librarian, any other employee in the department responsible for the administration of that Act, or any person employed in the Parliamentary Library:

        (l) any other person in the service of the Crown.

    (5) It is a defence to a charge under subsection (1) if the defendant proves that the defendant had possession of the publication to which the charge relates, in good faith,—

        (a) for the purpose or with the intention of delivering it into the possession of a person lawfully entitled to have possession of it; or

        (b) for the purposes of any proceedings under this Act or any other enactment in relation to the publication; or

        (c) for the purpose of giving legal advice in relation to the publication; or

        (d) for the purposes of giving legal advice, or making representations, in relation to any proceedings; or

        (e) in accordance with, or for the purpose of, complying with any decision or order made in relation to the publication by the Chief Censor, the Classification Office, the Board, or any court, Judge, Justice, or Community Magistrate; or

        (f) in connection with the delivery of the publication to the National Librarian in accordance with Part 4 of the National Library of New Zealand (Te Puna Matāuranga o Aotearoa) Act 2003.

    (6) Nothing in subsection (5) shall prejudice any defence that it is open to a person charged with an offence against this section to raise apart from that subsection.

    (7) For the avoidance of doubt, in this section the term proceedings includes proceedings before the Classification Office.

131A Offences relating to possession of objectionable publications and involving knowledge

    (1) Every person commits an offence who does any act that constitutes an offence against section 131(1), knowing or having reasonable cause to believe that the publication is objectionable.

    (2) Every person who commits an offence against subsection (1) is liable on conviction,—

        (a) in the case of an individual, to imprisonment for a term not exceeding 5 years or to a fine not exceeding $50,000:

        (b) in the case of a body corporate, to a fine not exceeding $100,000.

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Exhibiting parts of a publication

132 Exhibiting parts of a publication

A person may be convicted of exhibiting an objectionable publication if what is exhibited is in all the circumstances objectionable, notwithstanding that it is a part only of a publication that is not objectionable or is a restricted publication.

132A Aggravating factor to be taken into account in sentencing, etc, for certain publications offences

    (1) This section applies to an offence (the offence) if it is committed after the commencement of this section and it is an offence against—

        (a) section 124(1); or

        (b) section 127(4); or

        (c) section 129(3); or

        (d) section 131A(1); or

        (e) section 209(1A) of the Customs and Excise Act 1996.

    (2) In sentencing or otherwise dealing with an offender for the offence, the court must take into account as an aggravating factor the extent to which any publication that was the subject of the offence is objectionable because it does any or all of the following:

        (a) promotes or supports, or tends to promote or support, the exploitation of children, or young persons, or both, for sexual purposes:

        (b) describes, depicts, or otherwise deals with sexual conduct with or by children, or young persons, or both:

        (c) exploits the nudity of children, or young persons, or both.

    (3) In deciding for the purposes of subsection (2) to what extent (if any) a publication is objectionable because it does any or all of the things specified in subsection (2)(a) to (c), the court must have regard,—

        (a) if there is a subsisting decision of the Classification Office, or of the Board, to the reasons for the decision given by the Classification Office, under section 38, or by the Board, under section 55; and

        (b) if the publication has been referred to the Classification Office under section 29(1) or section 41(3), to the report provided by the Classification Office to the court under section 30.

    (4) Nothing in this section affects the application of the Sentencing Act 2002 in respect of the offence.