Recommended Sentencing - New Zealand

GLover · 16 May, 2014, 23:23:58

Recommended Sentencing - New Zealand

New Zealand has a far simpler system of law than its neighbor, Australia, as it sets sentencing nationwide, and not per province/island. There is a lot to look through in the below links, but the most important is the Crimes Act 1961, which holds most crimes and their potential maximum sentences, along with many guidelines on situations where very low sentences may be given, or where fines and community service will suffice, then the Films, Videos, and Publications Classifications Act 1993, which handles child pornography. Although the country is locking up more people than ever before, there is some hope in voices of dissent and reason:

In July 2009 Dame Sian Elias, the Chief Justice, argued against what she described as the "punitive and knee-jerk" responses to crime because of its potential consequences for prison overcrowding. In a controversial speech to the Wellington District Law Society, she called for a more rational approach to penal policy and said the focus on victims had made courtrooms "very angry places" and had put at risk the impartial system of deciding criminal blame. She also said that if action to address the growing prison population was not taken, Government might be pushed into the use of executive amnesties to reduce the growing prison population. In response, Minister of Justice Simon Power said "The Government is elected to set sentencing policy. Judges are appointed to apply it."

In addition to sending more and more people to prison, New Zealand also seems to have had a history of locking people up for relatively minor offences. In 1930, the Under Secretary for Prisons reported that "34% of the total number of persons committed to prison were serving terms of less than one month, 58% for terms of less than three months and 73% were for terms of less than six months". The proportion of people in prison for serious crimes was relatively small. Even today, 70% of all offenders in prison will be released within seven months.

This shows that even if someone is sent to prison, it is more than likely that the sentence will be short, barring more serious crimes, which child sexual contact offenses will most likely come under, but possession of CP may not, although recently maximum sentences have been increased for the latter.

The below posts will be quite short, but in keeping with previous threads, only one crime (as defined by the statute books) per thread will be posted, to make things easier to find. Where appropriate, more information will be added, as the individual statutes are fairly sparse of information, so I also recommend you read more into the different offenses, and in the general information contained within the below linked documents, and others on those sites.

Sex Offender Register

The New Zealand Government has plans to introduce a sex offenders register by the end of 2014. It will be managed by the New Zealand Police and information will be shared between the Police, the Department of Corrections, the Ministry of Social Development, and the Department of Building and Housing—government agencies which deal with child safety. Like the Australian and British registers, the New Zealand sex offenders register will not be accessible to the general public but only to officials with security clearance. It will also include individuals who have been granted name suppression. This proposed register has received support from both the ruling National Party and the opposition Labour Party. However, the victims support group, the Sensible Sentencing Trust, has criticized the proposed register for its lack of public access.

The register will take a similar form to that in the UK, whereby it will be private, so that only cleared individuals may have access, although those applying for positions working with children may be checked against it at the insistence of the employer, offenders will have to report to a police station within 3 days of receiving sentence, or of being released from prison, have to report to said police station once per year, and notify the police of all absences from their registered address(es) for periods in excess of 7 days. This will be updated as and when more information arrives.

Links

Sex Offender Register - en.wikipedia.org/wiki/Sex_offender_registration#New_Zealand

Crimes Act 1961 (Reprint as at 11 May 2014) - legislation.govt.nz/act/public/1961/0043/latest/DLM327382.html

Crimes Act 1961 - en.wikipedia.org/wiki/Crimes_Act_1961

Summary Offences Act 1981 (Reprint as at 18 December 2013) - legislation.govt.nz/act/public/1981/0113/latest/DLM53348.html

Sentencing Act 2002 (Reprint as at 22 January 2014) - legislation.govt.nz/act/public/2002/0009/latest/DLM135342.html

Release and management of sexual offenders - corrections.govt.nz/working_with_offenders/community_sentences/employment_and_support_programmes/release-and-management-of-sexual-offenders.html

Films, Videos, and Publications Classifications Act 1993 - http://www.legislation.govt.nz/act/public/1993/0094/latest/DLM312895.html

Sections

Application of the Law

Slave Dealing
Dealing in people under 18 for sexual exploitation
Smuggling and trafficking in people
Smuggling migrants
Trafficking in people by means of coercion or deception
Distribution or exhibition of indecent matter
Indecent act in public place
Indecent act with intent to insult or offend
Sexual crimes
Sexual violation
Attempted sexual violation
Sexual conduct with consent induced by certain threats
Incest
Sexual conduct with dependent family member
Meeting young person following sexual grooming
Sexual conduct with child under 12
Sexual conduct with young person under 16
Indecent assault
Sexual exploitation of person with significant impairment
Organising or promoting child sex tours
Ill-treatment or neglect of child or vulnerable adult
Failure to protect child or vulnerable adult
Abduction for purposes of marriage or sexual connection
Kidnapping
Abduction of young person under 16
Intimate visual recordings

Films, Videos, and Publications Classifications Act 1993

Offences of strict liability relating to objectionable publications
Offences with knowledge in relation to objectionable publications
Offences of strict liability involving restricted publications
Offences involving knowledge in relation to restricted publications
Exhibition to persons under 18
Offences in public place
Breach of conditions on display of restricted publications
Offence to possess objectionable publication
Exhibiting parts of a publication

GLover · 17 May, 2014, 01:27:09

Application of the Law

Offenses Committed Abroad

It is important to note that residents of New Zealand may be prosecuted for a crime committed outside of New Zealand only as long as it is illegal within the laws of New Zealand, specifically mentioned within the Crimes Act 1961. This also means attempted crimes are illegal. While this technically covers all laws, it was introduced mainly to handle child sex tourism to South East Asia, which was felt by some to be a huge issue. This means that if you are caught with a child prostitute in somewhere like Laos (Just used as an example of a SEA country), and your government finds out, you may find yourself, after spending a year or two in prison in Laos, that upon being deported back home, looking forward to your new-found freedom, you have to face the exact same charges again, with the potential for even more time in prison. It also means that if you 'got away with it' in Laos, but an NGO or official from your government saw what you did, you may be looking at facing charges back home.

It's not a happy thought, knowing you may have to pay twice, or that leaving the country in which you committed the crime isn't the end of it, so this is something to seriously consider before doing anything you may regret for years to come.

Application of Sentencing

The individual statutes only list maximum possible sentences, offer no specific advice on application of the law in relation to aggravating or mitigating factors, and do not mention when it is appropriate for the maximum sentence, or when it is appropriate to apply supervisory orders or very low sentences. This is, instead, taken from case law, otherwise known as common law, and is completely at the discretion of the sentencing judge. As a consequence, real-world examples will be of much help in determining probable sentences, but there are guidelines held within other parts of the law which give some insight into the general thinking of sentencing judges, and how the government wishes the law to be applied, such as held within the Sentencing Act 2002, parts of which shall be reproduced below for you.

Principles of sentencing or otherwise dealing with offenders

In sentencing or otherwise dealing with an offender the court—

(a) must take into account the gravity of the offending in the particular case, including the degree of culpability of the offender; and

(b) must take into account the seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences; and

(c) must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and

(d) must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and

(e) must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances; and

(f) must take into account any information provided to the court concerning the effect of the offending on the victim; and

(g) must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in section 10A; and

(h) must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe; and

(i) must take into account the offender's personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose; and

(j) must take into account any outcomes of restorative justice processes that have occurred, or that the court is satisfied are likely to occur, in relation to the particular case (including, without limitation, anything referred to in section 10).

Aggravating and mitigating factors

(1) In sentencing or otherwise dealing with an offender the court must take into account the following aggravating factors to the extent that they are applicable in the case:

(a) that the offence involved actual or threatened violence or the actual or threatened use of a weapon:

(b) that the offence involved unlawful entry into, or unlawful presence in, a dwelling place:

(c) that the offence was committed while the offender was on bail or still subject to a sentence:

(d) the extent of any loss, damage, or harm resulting from the offence:

(e) particular cruelty in the commission of the offence:

(f) that the offender was abusing a position of trust or authority in relation to the victim:

(fa) that the victim was a constable, or a prison officer, acting in the course of his or her duty:

(fb) that the victim was an emergency health or fire services provider acting in the course of his or her duty at the scene of an emergency:

(g) that the victim was particularly vulnerable because of his or her age or health or because of any other factor known to the offender:

(h) that the offender committed the offence partly or wholly because of hostility towards a group of persons who have an enduring common characteristic such as race, colour, nationality, religion, gender identity, sexual orientation, age, or disability; and

(i) the hostility is because of the common characteristic; and

(ii) the offender believed that the victim has that characteristic:

(ha) that the offence was committed as part of, or involves, a terrorist act (as defined in section 5(1) of the Terrorism Suppression Act 2002):

(hb) the nature and extent of any connection between the offending and the offender's—

(i) participation in an organised criminal group (within the meaning of section 98A of the Crimes Act 1961); or

(ii) involvement in any other form of organised criminal association:

(i) premeditation on the part of the offender and, if so, the level of premeditation involved:

(j) the number, seriousness, date, relevance, and nature of any previous convictions of the offender and of any convictions for which the offender is being sentenced or otherwise dealt with at the same time:

(k) any failure by the offender personally (or failure by the offender's lawyer arising out of the offender's instructions to, or failure or refusal to co-operate with, his or her lawyer) to comply with a procedural requirement that, in the court's opinion, has done either or both of the following:

(i) caused a delay in the disposition of the proceedings:

(ii) had an adverse effect on a victim or witness.

(2) In sentencing or otherwise dealing with an offender the court must take into account the following mitigating factors to the extent that they are applicable in the case:

(a) the age of the offender:

(b) whether and when the offender pleaded guilty:

(c) the conduct of the victim:

(d) that there was a limited involvement in the offence on the offender's part:

(e) that the offender has, or had at the time the offence was committed, diminished intellectual capacity or understanding:

(f) any remorse shown by the offender, or anything as described in section 10:

(fa) that the offender has taken steps during the proceedings (other than steps to comply with procedural requirements) to shorten the proceedings or reduce their cost:

(fb) any adverse effects on the offender of a delay in the disposition of the proceedings caused by a failure by the prosecutor to comply with a procedural requirement:

(g) any evidence of the offender's previous good character:

(h) that the offender spent time on bail with an EM condition as defined in section 3 of the Bail Act 2000.

(3) Despite subsection (2)(e), the court must not take into account by way of mitigation the fact that the offender was, at the time of committing the offence, affected by the voluntary consumption or use of alcohol or any drug or other substance (other than a drug or other substance used for bona fide medical purposes).

(3A) In taking into account that the offender spent time on bail with an EM condition under subsection (2)(h), the court must consider—

(a) the period of time that the offender spent on bail with an EM condition; and

(b) the relative restrictiveness of the EM condition, particularly the frequency and duration of the offender's authorised absences from the electronic monitoring address; and

(c) the offender's compliance with the bail conditions during the period of bail with an EM condition; and

(d) any other relevant matter.

(4) Nothing in subsection (1) or subsection (2)—

(a) prevents the court from taking into account any other aggravating or mitigating factor that the court thinks fit; or

(b) implies that a factor referred to in those subsections must be given greater weight than any other factor that the court might take into account.

(4A) In subsection (1)(fb), emergency health or fire services provider means a person who has a legal duty (under any enactment, employment contract, other binding agreement or arrangement, or other source) to, at the scene of an emergency, provide services that are either or both—

(a) ambulance services, first aid, or medical or paramedical care:

(b) services provided by or on behalf of a fire brigade (as defined in section 2(1) of the Fire Service Act 1975) to save life or property.

(5) In this section, procedural requirement means a requirement imposed by or under—

(a) the Criminal Procedure Act 2011; or

(b) any rules of court or regulations made under that Act; or

(c) the Criminal Disclosure Act 2008 or any regulations made under that Act.

Cases involving violence against, or neglect of, child under 14 years

(1) This section applies if the court is sentencing or otherwise dealing with an offender in a case involving violence against, or neglect of, a child under the age of 14 years.

(2) The court must take into account the following aggravating factors to the extent that they are applicable in the case:

(a) the defencelessness of the victim:

(b) in relation to any harm resulting from the offence, any serious or long-term physical or psychological effect on the victim:

(c) the magnitude of the breach of any relationship of trust between the victim and the offender:

(d) threats by the offender to prevent the victim reporting the offending:

(e) deliberate concealment of the offending from authorities.

(3) The factors in subsection (2) are in addition to any factors the court might take into account under section 9.

(4) Nothing in this section implies that a factor referred to in subsection (2) must be given greater weight than any other factor that the court might take into account.

Sentence of imprisonment

(1) When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.

(2) The court must not impose a sentence of imprisonment unless it is satisfied that,—

(a) a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and

(b) those purposes cannot be achieved by a sentence other than imprisonment; and

(c) no other sentence would be consistent with the application of the principles in section 8 to the particular case.

(3) This section is subject to any provision in this or any other enactment that—

(a) provides a presumption in favour of or against imposing a sentence of imprisonment in relation to a particular offence; or

(b) requires a court to impose a sentence of imprisonment in relation to a particular offence.

Subpart 3—Imprisonment

Of particular interest is Subpart 3 of the Sentencing Act 2002, which gives specific guidelines on sentencing, including criminal history, level of offending, and concurrent/consecutive sentences. This will be found at this link:

legislation.govt.nz/act/public/2002/0009/latest/whole.html#DLM136441

I highly recommend reading through it, as it goes deeply into the topic, especially into extra penalties for second, third, etc, offenses. It also mentions preventive detention, which is to protect the public from a serious, repeat offender. If you are under preventive detention, it means a minimum of 5 years.

As I said above, though, it may be of more use to look at real-world examples, rather than just the law. Looking only at maximum sentences does nothing but instill a fear of being caught, and/or indignation, when chances are, you're going to be far better off than it at first appears.

GLover · 18 May, 2014, 02:23:52

Slave Dealing

98 - Dealing in slaves

(1) Every one is liable to imprisonment for a term not exceeding 14 years who, within or outside New Zealand,—

(a) sells, purchases, transfers, barters, lets, hires, or in any way whatsoever deals with any person as a slave; or

(b) employs or uses any person as a slave, or permits any person to be so employed or used; or

(c) detains, confines, imprisons, carries away, removes, receives, transports, imports, or brings into any place whatsoever any person as a slave or to be dealt with as a slave; or

(d) induces any person to sell, let, or give himself or herself, or any other person dependent on him or her or in his or her charge, as a slave; or

(e) in any case not covered by paragraph (d), induces any person to sell, let, or give any other person into debt-bondage or serfdom; or

(f) builds, fits out, sells, purchases, transfers, lets, hires, uses, provides with personnel, navigates, or serves on board any ship or aircraft for any of the purposes in paragraphs (a) to (e); or

(g) for gain or reward gives in marriage or transfers any woman to another person without her consent; or

(h) is a party to the inheritance by any person of a woman on the death of her husband; or

(i) being a parent or guardian of any child under the age of 18 years, delivers that child to another person with intent that the child or his or her labour shall be exploited; or

(j) agrees or offers to do any of the acts mentioned in this subsection.

(2) For the purposes of this section—

debt-bondage means the status or condition arising from a pledge by a debtor of his or her personal services, or of the personal services of any person under his or her control, as security for a debt, if the value of those services, as reasonably assessed, is not applied towards the liquidation of the debt or if the length and nature of those services are not limited and defined

serfdom means the status or condition of a tenant who is by any law, custom, or agreement bound to live and labour on land belonging to another person and to render some determinate service to that other person, whether for reward or not, and who is not free to change that status or condition

slave includes, without limitation, a person subject to debt-bondage or serfdom.

GLover · 18 May, 2014, 22:10:17

Dealing in people under 18 for sexual exploitation

98AA Dealing in people under 18 for sexual exploitation, removal of body parts, or engagement in forced labour

(1) Every one is liable to imprisonment for a term not exceeding 14 years who—

(a) sells, buys, transfers, barters, rents, hires, or in any other way enters into a dealing involving a person under the age of 18 years for the purpose of—

(i) the sexual exploitation of the person; or

(ii) the removal of body parts from the person; or

(iii) the engagement of the person in forced labour; or

(b) engages a person under the age of 18 years in forced labour; or

(c) permits a person under the age of 18 years to be engaged in forced labour; or

(d) detains, confines, imprisons, or carries away a person under the age of 18 years for the purpose of—

(i) the sexual exploitation of the person; or

(ii) the removal of body parts from the person; or

(iii) the engagement of the person in forced labour; or

(e) removes, receives, transports, imports, or brings into any place a person under the age of 18 years for the purpose of—

(i) the sexual exploitation of the person; or

(ii) the removal of body parts from the person for a material benefit; or

(iii) the engagement of the person in forced labour; or

(f) induces a person under the age of 18 years to sell, rent, or give himself or herself for the purpose of—

(i) the sexual exploitation of the person; or

(ii) the removal of body parts from the person for a material benefit; or

(iii) the engagement of the person in forced labour; or

(g) induces a person to sell, rent, or give another person (being a person who is under the age of 18 years and who is dependent on him or her or in his or her charge) for the purpose of—

(i) the sexual exploitation of the other person; or

(ii) the removal of body parts from the other person; or

(iii) the engagement of the other person in forced labour; or

(h) builds, fits out, sells, buys, transfers, rents, hires, uses, provides with personnel, navigates, or serves on board a ship, aircraft, or other vehicle for the purpose of doing an act stated in any of paragraphs (a) to (g); or

(i) agrees or offers to do an act stated in any of paragraphs (a) to (h).

(2) It is a defence to a charge under this section if the person charged proves that he or she believed on reasonable grounds that the person under the age of 18 years concerned was of or over the age of 18 years.

(3) For the purposes of subsection (1), sexual exploitation, in relation to a person, includes the following acts:

(a) the taking by any means, or transmission by any means, of still or moving images of the person engaged in explicit sexual activities (whether real or simulated):

(b) the taking by any means or transmission by any means, for a material benefit, of still or moving images of the person's genitalia, anus, or breasts (not being an act described in subsection (4) or subsection (5)):

(c) the person's participation in a performance or display (not being an act described in subsection (4)) that—

(i) is undertaken for a material benefit; and

(ii) involves the exposure of the person's genitalia, anus, or breasts:

(d) the person's undertaking of an activity (for example, employment in a restaurant) that—

(i) is undertaken for a material benefit; and

(ii) involves the exposure of the person's genitalia, anus, or breasts.

(4) For the purposes of paragraphs (b) and (c) of subsection (3), sexual exploitation, in relation to a person, does not include the recording or transmission of an artistic or cultural performance or display honestly undertaken primarily for purposes other than the exposure of body parts for the sexual gratification of viewers.

(5) For the purposes of subsection (3)(b), sexual exploitation, in relation to a person, does not include the taking or transmission of images of the person's genitalia, anus, or breasts for the purpose of depicting a medical condition, or a surgical or medical technique, for the instruction or information of health professionals.

(6) For the purposes of subsection (3)(b), sexual exploitation, in relation to a person, does not include the taking or transmission of images of the person's genitalia, anus, or breasts if the images are honestly intended—

(a) to provide medical or health education; or

(b) to provide information relating to medical or health matters; or

(c) to advertise a product, instrument, or service intended to be used for medical or health purposes.

(7) The person under the age of 18 years in respect of whom an offence against this section was committed cannot be charged as a party to the offence.

(8,) This section does not limit or affect the generality of section 98.

GLover · 18 May, 2014, 22:10:36

Smuggling and trafficking in people

98B Terms used in sections 98C to 98F

In sections 98C to 98F, unless the context otherwise requires,—

act of coercion against the person includes—

(a) abducting the person:

(b) using force in respect of the person:

(c) harming the person:

(d) threatening the person (expressly or by implication) with the use of force in respect of, or the harming of, the person or some other person

act of deception includes fraudulent action

arranges for an unauthorised migrant to be brought to a State includes—

(a) organises or procures the bringing to a State:

(b) recruits for bringing to a State:

(c) carries to a State

arranges for an unauthorised migrant to enter a State includes—

(a) organises or procures the entry into a State:

(b) recruits for entry into a State:

(c) carries into a State

document includes a thing that is or is intended to be—

(a) attached to a document; or

(b) stamped or otherwise signified on a document

harming of a person means causing harm of any kind to the person; and (in particular) includes—

(a) causing physical, psychological, or financial harm to the person:

(b) sexually mistreating the person:

(c) causing harm to the person's reputation, status, or prospects

unauthorised migrant, in relation to a State, means a person who is neither a citizen of the State nor in possession of all the documents required by or under the law of the State for the person's lawful entry into the State.

98E Aggravating factors

(1) When determining the sentence to be imposed on, or other way of dealing with, a person convicted of an offence against section 98C or section 98D, a court must take into account—

(a) whether bodily harm or death (whether to or of a person in respect of whom the offence was committed or some other person) occurred during the commission of the offence:

(b) whether the offence was committed for the benefit of, at the direction of, or in association with, an organised criminal group (within the meaning of section 98A(2)):

(c) whether a person in respect of whom the offence was committed was subjected to inhuman or degrading treatment as a result of the commission of the offence:

(d) if during the proceedings concerned the person was convicted of the same offence in respect of 2 or more people, the number of people in respect of whom the offence was committed.

(2) When determining the sentence to be imposed on, or other way of dealing with, a person convicted of an offence against section 98D, a court must also take into account—

(a) whether a person in respect of whom the offence was committed was subjected to exploitation (for example, sexual exploitation, a requirement to undertake forced labour, or the removal of organs) as a result of the commission of the offence:

(b) the age of the person in respect of whom the offence was committed and, in particular, whether the person was under the age of 18 years:

(c) whether the person convicted committed the offence, or took actions that were part of it, for a material benefit.

(3) The examples in paragraph (a) of subsection (2) do not limit the generality of that paragraph.

(4) This section does not limit the matters that a court may take into account when determining the sentence to be imposed on, or other way of dealing with, a person convicted of an offence against section 98C or section 98D.

98F Attorney-General's consent to prosecutions required

(1) Proceedings for an offence against section 98C or section 98D cannot be brought in a New Zealand court without the Attorney-General's consent.

(2) A person alleged to have committed an offence against section 98C or section 98D may be arrested, or a warrant for the person's arrest may be issued and executed, and the person be remanded in custody or on bail, even though the Attorney-General's consent to the bringing of proceedings against the person has not been obtained.

GLover · 18 May, 2014, 22:10:55

Smuggling migrants

98C Smuggling migrants

(1) Every one is liable to the penalty stated in subsection (3) who arranges for an unauthorised migrant to enter New Zealand or any other State, if he or she—

(a) does so for a material benefit; and

(b) either knows that the person is, or is reckless as to whether the person is, an unauthorised migrant.

(2) Every one is liable to the penalty stated in subsection (3) who arranges for an unauthorised migrant to be brought to New Zealand or any other State, if he or she—

(a) does so for a material benefit; and

(b) either knows that the person is, or is reckless as to whether the person is, an unauthorised migrant; and

(c) either—

(i) knows that the person intends to try to enter the State; or

(ii) is reckless as to whether the person intends to try to enter the State.

(3) The penalty is imprisonment for a term not exceeding 20 years, a fine not exceeding $500,000, or both.

(4) Proceedings may be brought under subsection (1) even if the unauthorised migrant did not in fact enter the State concerned.

(5) Proceedings may be brought under subsection (2) even if the unauthorised migrant was not in fact brought to the State concerned.

GLover · 18 May, 2014, 22:11:12

Trafficking in people by means of coercion or deception

98D Trafficking in people by means of coercion or deception

(1) Every one is liable to the penalty stated in subsection (2) who—

(a) arranges the entry of a person into New Zealand or any other State by 1 or more acts of coercion against the person, 1 or more acts of deception of the person, or both; or

(b) arranges, organises, or procures the reception, concealment, or harbouring in New Zealand or any other State of a person, knowing that the person's entry into New Zealand or that State was arranged by 1 or more acts of coercion against the person, 1 or more acts of deception of the person, or both.

(2) The penalty is imprisonment for a term not exceeding 20 years, a fine not exceeding $500,000, or both.

(3) Proceedings may be brought under this section even if the person coerced or deceived—

(a) did not in fact enter the State concerned; or (as the case may be)

(b) was not in fact received, concealed, or harboured in the State concerned.

(4) Proceedings may be brought under this section even if parts of the process by which the person coerced or deceived was brought or came to or towards the State concerned were accomplished without an act of coercion or deception.

GLover · 18 May, 2014, 22:11:33

Distribution or exhibition of indecent matter

124 Distribution or exhibition of indecent matter

(1) Every one is liable to imprisonment for a term not exceeding 2 years who, without lawful justification or excuse,—

(a) sells, exposes for sale, or otherwise distributes to the public any indecent model or object; or

(b) exhibits or presents in or within view of any place to which the public have or are permitted to have access any indecent object or indecent show or performance; or

(c) exhibits or presents in the presence of any person in consideration or expectation of any payment or otherwise for gain, any indecent show or performance.

(2) It is a defence to a charge under this section to prove that the public good was served by the acts alleged to have been done.

(3) It is a question of law whether the sale, exposure for sale, distribution, exhibition, or presentation might in the circumstances serve the public good, and whether there is evidence of excess beyond what the public good requires; but it is a question of fact whether or not the acts complained of did so serve the public good and whether or not there was such excess.

(4) It is no defence that the person charged did not know that the model, object, show, or performance to which the charge relates was indecent, unless that person also satisfies the court—

(a) that he or she had no reasonable opportunity of knowing it; and

(b) that in the circumstances his or her ignorance was excusable.

(5) No one shall be prosecuted for an offence against this section without the leave of the Attorney-General, who before giving leave may make such inquiries as he or she thinks fit.

(6) Nothing in this section shall apply to any publication within the meaning of the Films, Videos, and Publications Classification Act 1993, whether the publication is objectionable within the meaning of that Act or not.

124A Indecent communication with young person under 16

"(1) A person of or over the age of 16 years is liable to imprisonment for a term not exceeding 3 years if he or she intentionally exposes a person under the age of 16 years (the young person) to indecent material (whether written, spoken, visual, or otherwise, alone or in combination) in communicating in any manner, directly or indirectly, with the young person.

"(2) A reference in subsection (1) to a person under the age of 16 years, or to the young person, includes a reference to a constable (as defined in section 2(1)) who pretends to be a person under the age of 16 years (the fictitious young person) if the person charged with an offence against subsection (1), when communicating with the fictitious young person and exposing the fictitious young person to indecent material, believed that the fictitious young person was a person under the age of 16 years.

"(3) It is a defence to a charge under subsection (1) if the person charged proves that,—

"(a) before communicating with the young person and exposing the young person to the indecent material, the person charged had taken reasonable steps to find out whether the young person was of or over the age of 16 years; and

"(b) at the time of communicating with the young person and exposing the young person to the indecent material, the person charged believed on reasonable grounds that the young person was of or over the age of 16 years.

"(4) It is no defence to a charge under subsection (1) that the person charged did not know that the material to which the charge relates was indecent, unless the person charged also proves—

"(a) that the person charged had no reasonable opportunity of knowing it; and

"(b) that in the circumstances the ignorance of the person charged was excusable.

"(5) No private prosecution (as defined in section 5 of the Criminal Procedure Act 2011) for an offence against this section can be commenced without the Attorney-General's consent.

GLover · 18 May, 2014, 22:11:51

Indecent act in public place

125 Indecent act in public place

(1) Every one is liable to imprisonment for a term not exceeding 2 years who wilfully does any indecent act in any place to which the public have or are permitted to have access, or within view of any such place.

(2) It is a defence to a charge under this section if the person charged proves that he or she had reasonable grounds for believing that he or she would not be observed.

(3) For the purposes of this section, the term place includes any railway carriage, and also includes any ship, aircraft, or vehicle used for the carriage of passengers for hire or reward.

GLover · 18 May, 2014, 22:12:07

Indecent act with intent to insult or offend

126 Indecent act with intent to insult or offend

Every one is liable to imprisonment for a term not exceeding 2 years who with intent to insult or offend any person does any indecent act in any place.

GLover · 20 May, 2014, 00:05:23

Sexual crimes

127 No presumption because of age

There is no presumption of law that a person is incapable of sexual connection because of his or her age.

GLover · 20 May, 2014, 00:05:39

Sexual violation

128 Sexual violation defined

(1) Sexual violation is the act of a person who—

(a) rapes another person; or

(b) has unlawful sexual connection with another person.

(2) Person A rapes person B if person A has sexual connection with person B, effected by the penetration of person B's genitalia by person A's penis,—

(a) without person B's consent to the connection; and

(b) without believing on reasonable grounds that person B consents to the connection.

(3) Person A has unlawful sexual connection with person B if person A has sexual connection with person B—

(a) without person B's consent to the connection; and

(b) without believing on reasonable grounds that person B consents to the connection.

(4) One person may be convicted of the sexual violation of another person at a time when they were married to each other.

128A Allowing sexual activity does not amount to consent in some circumstances

(1) A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity.

(2) A person does not consent to sexual activity if he or she allows the activity because of—

(a) force applied to him or her or some other person; or

(b) the threat (express or implied) of the application of force to him or her or some other person; or

(c) the fear of the application of force to him or her or some other person.

(3) A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious.

(4) A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.

(5) A person does not consent to sexual activity if the activity occurs while he or she is affected by an intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.

(6) One person does not consent to sexual activity with another person if he or she allows the sexual activity because he or she is mistaken about who the other person is.

(7) A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and quality.

(8) This section does not limit the circumstances in which a person does not consent to sexual activity.

(9) For the purposes of this section,—

allows includes acquiesces in, submits to, participates in, and undertakes

sexual activity, in relation to a person, means—

(a) sexual connection with the person; or

(b) the doing on the person of an indecent act that, without the person's consent, would be an indecent assault of the person.

128B Sexual violation

(1) Every one who commits sexual violation is liable to imprisonment for a term not exceeding 20 years.

(2) A person convicted of sexual violation must be sentenced to imprisonment unless, having regard to the matters stated in subsection (3), the court thinks that the person should not be sentenced to imprisonment.

(3) The matters are—

(a) the particular circumstances of the person convicted; and

(b) the particular circumstances of the offence, including the nature of the conduct constituting it.

GLover · 20 May, 2014, 00:05:56

Attempted sexual violation

129 Attempted sexual violation and assault with intent to commit sexual violation

(1) Every one who attempts to commit sexual violation is liable to imprisonment for a term not exceeding 10 years.

(2) Every one who assaults another person with intent to commit sexual violation of the other person is liable to imprisonment for a term not exceeding 10 years.

GLover · 20 May, 2014, 00:06:19

Sexual conduct with consent induced by certain threats

129A Sexual conduct with consent induced by certain threats

(1) Every one who has sexual connection with another person knowing that the other person has been induced to consent to the connection by threat is liable to imprisonment for a term not exceeding 14 years.

(2) Every one who does an indecent act on another person knowing that the other person has been induced to consent to the act by threat is liable to imprisonment for a term not exceeding 5 years.

(3) For the purposes of subsection (1), a person who has sexual connection with another person knows that the other person has been induced to consent to the sexual connection by threat if (and only if) he or she knows that the other person has been induced to consent to the sexual connection by an express or implied threat of a kind described in subsection (5).

(4) For the purposes of subsection (2),—

(a) a person who does an indecent act on another person knows that the other person has been induced to consent to the act by threat if (and only if) he or she knows that the other person has been induced to consent to the act by an express or implied threat of a kind described in subsection (5); and

(b) a person is induced to consent to an indecent act whether—

(i) he or she is induced to consent to the doing of an indecent act with or on him or her; or

(ii) he or she is induced to consent to do an indecent act himself or herself.

(5) The kinds of threat referred to in subsections (3) and (4)(a) are—

(a) a threat that the person making the threat or some other person will commit an offence that—

(i) is punishable by imprisonment; but

(ii) does not involve the actual or threatened application of force to any person; and

(b) a threat that the person making the threat or some other person will make an accusation or disclosure (whether true or false) about misconduct by any person (whether living or dead) that is likely to damage seriously the reputation of the person against or about whom the accusation or disclosure is made; and

(c) a threat that the person making the threat will make improper use, to the detriment of the person consenting, of a power or authority arising out of—

(i) an occupational or vocational position held by the person making the threat; or

(ii) a commercial relationship existing between the person making the threat and the person consenting.

GLover · 20 May, 2014, 00:06:36

Incest

130 Incest

(1) Sexual connection is incest if—

(a) it is between 2 people whose relationship is that of parent and child, siblings, half-siblings, or grandparent and grandchild; and

(b) the person charged knows of the relationship.

(2) Every one of or over the age of 16 years who commits incest is liable to imprisonment for a term not exceeding 10 years.

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