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Digest No. 1882

Crimes Amendment Bill (No 2) 2011

Date of Introduction: 12 April 2011
Portfolio: Justice
First Reading: 10 May 2011
Select Committee: Social Services
Published: 20 June 2011byJohn McSoriley BA LL.B, Barrister,Legislative AnalystP: (04) 817-9626 (Ext. 9626)F: (04) 817-1250Public enquiries:Parliamentary Information Service: (04 817-9647) Caution: This Digest was prepared to assist consideration of the Bill by members of Parliament. It has no official status.Although every effort has been made to ensure accuracy, it should not be taken as a complete or authoritative guide to the Bill. Other sources should be consulted to determine the subsequent official status of the Bill.

Purpose

This Bill amends the Crimes Act 1961 (the Act) in a number of respects including:

  • amending the definition of “claim of right” (by adding a property right criterion, so that only defendants who believed they had a proprietary or possessory right in the property concerned may use the defence);

  • amending the provision which relates to meeting a young person following sexual grooming to include situations where the offender believed he or she was interacting with a person aged under 16 years but was in fact grooming someone posing as a young person, to “enable prosecutions in situations where the sexual grooming of young persons is discovered during covert investigations” [1]   .

Background

Claim of right

The Bill amends the definition of claim of right in the interpretation section (Section 2) of the Crimes Act 1961) by adding property right criterion, so that only defendants who believe they had a proprietary or possessory right in the property concerned can use the offence.

Defence

In New Zealand the claim of right defence can be used to avoid criminal liability for a limited number of property offences. The defence requires a defendant to claim that they believed (even if the belief was mistaken) that their actions were lawful.

Waihopai

In March 2010, three accused men were acquitted by a jury of intentional damage [2]   and burglary [3]   charges by successfully raising the claim of right defence in the Waihopai satellite facility damage case. They stated that they believed their actions were lawful “in order to defend civilians in Iraq, particularly [those] who were being hurt or killed in part through the use of the intelligence that they considered was being gathered, or at least relayed through the Waihopai base” [4]   . The decision was criticised by some commentators as “an aberrant outcome, reflecting the anomalous usage of the defence in this particular case” [5]   . The Crown did not appeal and the Solicitor-General stated that the “trial judge’s directions on the law were generally consistent with the relevant provisions in the Crimes Act 1961, and the way in which the Supreme Court has interpreted the meaning of ‘claim of right’ “ [6]   .

Protection of children

The Bill makes provision in respect of children as follows:

  • Parents, who are currently under a duty to provide their children with “the necessaries”, will also be required to take reasonable steps to protect them from injury;

  • The Bill increases the maximum penalty from five years' to ten years' imprisonment for the offence of cruelty to a child (which currently covers ill-treatment and neglect of children) and abolishes that defence of ignorance or thoughtlessness so that those who have the care or charge of children will be liable for being grossly negligent in their standard of care in those circumstances;

  • It is made an offence for those who live with a child and who know that the child is at risk of death, grievous bodily harm, or sexual assault to fail to take reasonable steps to protect the child from that risk.

These protections are also extended to vulnerable adults who are unable to withdraw themselves from care or charge by reason of detention, age, sickness, mental impairment, or any other cause.

Possession of an offensive weapon

The Bill also increases the penalty for the offence of possession of an offensive weapon (Section 202A of the Crimes Act 1961) from two to three years' imprisonment.

Main Provisions

Claim of right

The Bill amends the definition of claim of right is amended so that the relevant belief relates to a proprietary or possessory right in property. At present the definition reads:

“claim of right, in relation to any act, means a belief that the act is lawful, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed”.

The Bill changes this definition to read:

“claim of right, in relation to any act, means a belief at the time of the act of a proprietary or possessory right in property, being property in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed” (Part 1, Clause 4, amending Section 2(1) of the Crimes Act 1961 by amending the definition of “claim of right”).

Sexual grooming

The Bill amends the offence relating to the sexual grooming of young persons under the age of 16 years to include situations where the offender believes that he or she is sexually grooming a young person under the age of 16 but is in fact communicating with an undercover police officer (Part 1, Clause 5 amending Section 131B of the Act).

Duties to children and vulnerable adults

The Bill places an obligation on caregivers in charge of vulnerable people to provide any necessaries and not just, the necessaries of life. It also requires caregivers to take reasonable steps to protect vulnerable people from injury. Parents or persons in loco parentis, who are currently under a duty to provide a child with necessaries, must, in addition, take reasonable steps to protect the child (a person under the age of 18) (Part 1, Clause 6, substituting New Sections 150A (setting out the standard of care applicable to persons under legal duties (Sections 151, 152, 153, 155, 156, and 157 of the Act) or performing unlawful acts (Section 160 of the Act)).

Cruelty to children

The Bill extends the scope of the offence of cruelty to children to include vulnerable adults, and the age of a child is raised from 16 years to 18 years. A person is liable under this section if the omission to perform a legal duty or the intentional conduct is a “major departure from the standard of care expected of a reasonable person to whom that legal duty applies or who performs that unlawful act”. The Bill also provides for a new offence of failing to protect a child or vulnerable adult from risk of death, grievous bodily harm, or sexual assault. A person is liable if that person:

  • is a member of the same household or is a staff member of a hospital, institution, or residence where the child or vulnerable adult resides; and

  • has frequent contact with the child or vulnerable adult; and

  • has knowledge of the risk; and

  • fails to take reasonable steps to protect the child or vulnerable adult from the actions or omissions of a third party.

However, a person under 18 years cannot be charged with an offence under this section unless the victim is a child and the person is the parent. The maximum penalty for each offence is ten years imprisonment (instead of five years as at present) (Part 1, Clause 7 substituting Section 195 (cruelty to a child) and inserting New Section 195A).

Possession of an offensive weapon: penalty increased

The Bill increases the maximum penalty for the offence of possession of offensive weapons or disabling substances from two years' to three years' imprisonment (Part 1, Clause 8, amending Section 202A(4) of the Act).

Copyright: © NZ Parliamentary Library, 2011
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  1. Crimes Amendment Bill (No 2), 2011 No 284-1, Explanatory note, General policy statement, p. 1.   [back]
  2. Section 269(a) of the Crimes Act 1961 provides that a person commits an offence of intentional damage when, he or she, “intentionally or recklessly, and without claim of right, destroys or damages any property in which that person has no interest”.   [back]
  3. Section 231(1) provides that a person commits burglary if they [enter] any building or ship, or part of a building or ship, without authority and with intent to commit a crime in the building or ship” (“building” means any building or structure of any description, and includes any enclosed yard).   [back]
  4. R v Murnane, Leason and Land {2010} District Court, Wellington, Summing up of Judge SM Harrop, para 36. 36. (referred to in Hon Simon Power, “Reform of the Claim of Right Defence”, a paper for the Cabinet Domestic Policy Committee , 18 October 2010.   [back]
  5. Ibid.   [back]
  6. “R v Murnane, Leason and Land: (Damage to Waihopai Satellite Dish Cover)”, Media Statement from Solicitor General, 07 April 2010, para 3 .   [back]