9 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:

(ca)

that the offence was a family violence offence (as defined in section 123A) committed—

(i)

while the offender was subject to a protection order (as defined in section 8 of the Family Violence Act 2018, or that was made under section 123B of this Act); and

(ii)

against a person who, in relation to the protection order, was a protected person (as so defined):

(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 Fire and Emergency New Zealand to save life, prevent serious injury, or avoid damage to property.

(5)

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

(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.

Compare: 1985 No 120 s 12A

Section 9(1)(ca): inserted, on 1 July 2019, by section 62 of the Family Violence (Amendments) Act 2018 (2018 No 47).

Section 9(1)(fa): inserted, on 18 September 2012, by section 5(1) of the Sentencing (Aggravating Factors) Amendment Act 2012 (2012 No 74).

Section 9(1)(fb): inserted, on 18 September 2012, by section 5(1) of the Sentencing (Aggravating Factors) Amendment Act 2012 (2012 No 74).

Section 9(1)(ha): inserted, on 31 October 2003, by section 3 of the Sentencing Amendment Act 2003 (2003 No 109).

Section 9(1)(hb): inserted, on 1 December 2009, by section 4 of the Sentencing Amendment Act (No 3) 2009 (2009 No 49).

Section 9(1)(k): inserted, on 1 July 2013, by section 4(1) of the Sentencing Amendment Act (No 2) 2011 (2011 No 93).

Section 9(2)(fa): inserted, on 1 July 2013, by section 4(2) of the Sentencing Amendment Act (No 2) 2011 (2011 No 93).

Section 9(2)(fb): inserted, on 1 July 2013, by section 4(2) of the Sentencing Amendment Act (No 2) 2011 (2011 No 93).

Section 9(2)(g): amended, on 4 September 2013, by section 42(2) of the Bail Amendment Act 2013 (2013 No 66).

Section 9(2)(h): inserted, on 4 September 2013, by section 42(3) of the Bail Amendment Act 2013 (2013 No 66).

Section 9(3A): inserted, on 4 September 2013, by section 42(4) of the Bail Amendment Act 2013 (2013 No 66).

Section 9(4A): inserted, on 18 September 2012, by section 5(2) of the Sentencing (Aggravating Factors) Amendment Act 2012 (2012 No 74).

Section 9(4A)(b): replaced, on 1 July 2017, by section 197 of the Fire and Emergency New Zealand Act 2017 (2017 No 17).

Section 9(5): inserted, on 1 July 2013, by section 4(3) of the Sentencing Amendment Act (No 2) 2011 (2011 No 93).