Criminal law

Background law

Facing prosecution for an offence in the criminal law system is a complex and stressful experience. Many decisions have to be made.

The Crimes Act 1961 (as amended) is the primary source of criminal offences in New Zealand. Although, other statutory offences are also dealt with within the "criminal justice" system under the Criminal Procedure Act 2011 ("the CPA") .

The basic "stream" for a criminal matter in Court is (1) first appearance; (2) second appearance (if required); (3) case review hearing (if required); (4) trial (if required); and (5) sentencing (on a finding of guilt or the entry of a "guilty" plea.

The Court can give a sentencing indication at the case review hearing, if one is requested.

There are four categories of offence and two types of trial under the CPA:

Category of offence	Consequences	Trial type and Court
Category 1	Fine only	Judge alone trial in District Court
Category 2	Less than 2 years imprisonment, or no imprisonment but community based sentence	Judge alone trial in District Court (or High Court)
Category 3	2 years imprisonment or above, unless otherwise in Schedule 1 to the CPA	Judge alone trial or jury trial (if elected) in District Court (or High Court)
Category 4	Described in Schedule 1 to the CPA	Jury trial in High Court

The defendant is usually required to plead (either "guilty" or "not guilty") on or before the second appearance. A plea of "not guilty" is entered, if the defendant does not enter a plea at the second appearance. The defendant can change a "not guilty" plea to a "guilty" plea at any time.

Sentencing is the next stage, which takes place separately after a plea or finding of guilt. "Pleas in mitigation" are the focus of sentencing for the defendant - explaining to the Court the factors which should lead to an appropriate sentence given the priorities of the Court and the Sentencing Act 2002.

There is a hierarchy of sentencing types the Court can impose, including in combination, from a fine to community based sentences to imprisonment.

Frequently encountered issues

Explaining to clients the process which can be complex and confusing and the trade-offs that can be involved in making appropriate decisions within the process.

Making sure the client's voice is heard in the process or that the picture presented to the Court is a balanced one.

What you should provide when instructing us

The charge sheet provided to you;
A written narrative about what has happened in terms of the alleged offence and your point of view;
A drawn map of the scene and what happened
Copies of any Court documents you have been served to date.

About Us

Peter McCutcheon is a Barrister and Solicitor, specialising in commercial and relationship property litigation. Peter has an economics degree, a post graduate banking diploma (with distinction), and a law degree from the University of Auckland (with honours). Peter's more general litigation practice areas are commercial litigation, relationship property litigation, shareholders' disputes, insolvency and company liquidations, caveat disputes, estate disputes and criminal law. Peter is committed to providing excellent legal services to companies and people who understand value.