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Sentencing Act 2002

Sentences, orders, and related matters - Monetary penalties - Reparation

38A: Cancellation of sentence of reparation

You could also call this:

"When a court can stop you paying back money you owe as part of your sentence"

Illustration for Sentencing Act 2002

If you get a sentence of reparation, a court can cancel it. The court can do this on its own or if you or a Registrar asks them to. You can ask the court to cancel the sentence if you can't afford to pay because your financial situation has changed.

A Registrar can also ask the court to cancel the sentence if they think it's unenforceable. This might be because you gave false information about your finances or for another reason. The court will only cancel the sentence if the person you owe money to has been told and had a chance to speak about it.

The court must also be satisfied that you can't afford to pay or that the sentence is unenforceable. They will look at whether trying to enforce the original sentence under Part 3 of the Summary Proceedings Act 1957 or section 19 of the Crimes Act 1961 would be effective.

If the court is thinking about giving you a new sentence, they will consider how much of the original sentence you've paid and how much you still owe. They will also think about any other sentences or orders you got for the same offence. If you gave false information about your finances, the court might consider how false it was and whether you meant to mislead them.

If the court cancels your sentence of reparation, you won't have to pay the amount you still owed from the date the court makes the order. The court can choose a different date if they want to.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM4639405.

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Part 2Sentences, orders, and related matters
Monetary penalties: Reparation

38ACancellation of sentence of reparation

  1. A court may, on an application under subsection (2) or (3) or on its own initiative,—

  2. cancel a sentence of reparation; or
    1. cancel a sentence of reparation and substitute any other sentence (including another sentence of reparation) that could have been imposed on the offender at the time when the offender was convicted of the offence for which the sentence was imposed.

      1. An offender who is subject to a sentence of reparation or a Registrar may apply in accordance with section 72 for an order under subsection (1) on the ground that the reparation is unaffordable because the offender's financial position has changed significantly since the sentence was imposed.

      2. A Registrar may apply in accordance with section 72 for an order under subsection (1) on the ground that the Registrar reasonably believes that the sentence is unenforceable because the offender provided false or misleading information about the offender's financial position that the court relied on in imposing the sentence or because of any other reason.

      3. The court may make an order under subsection (1) (whether on application or on its own initiative) only if—

      4. the person to whom the offender is required to pay the reparation—
        1. has been informed and has been given the opportunity to be heard about the matter; or
          1. is unable to be found despite reasonable efforts made by the Registrar; and
          2. the court is satisfied that—
            1. the ground in subsection (2) or (3) has been established; and
              1. enforcement of the original sentence of reparation under Part 3 of the Summary Proceedings Act 1957 (or, if applicable, under section 19 of the Crimes Act 1961) is unlikely to be effective.

              2. If the court is considering a substitute sentence,—

              3. the court must take the following matters into account:
                1. the amount of the original sentence of reparation that has been paid and the amount outstanding:
                  1. any other sentences or orders imposed on the offender for the offending for which the original reparation was imposed and the extent to which the reparation was taken into account in imposing those sentences or orders; and
                  2. if the offender provided false or misleading information about the offender's financial position, the court may take the following matters into account:
                    1. the extent to which the information was false or misleading:
                      1. the offender's culpability in providing the information, including whether, in the court's opinion, the offender intended to mislead the court.

                      2. If the court cancels a sentence of reparation, the amount of reparation outstanding is deemed to be remitted from the date the order is made or any other date that the court may specify.

                      Notes
                      • Section 38A: inserted, on , by section 7 of the Sentencing Amendment Act 2011 (2011 No 47).
                      • Section 38A(4)(b)(ii): amended, on , by section 7 of the Sentencing Amendment Act (No 2) 2011 (2011 No 93).