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Sentencing Act 2002

Other amendments and repeals

Schedule 1AA: Transitional, savings, and related provisions

You could also call this:

"Rules for when sentencing laws change in New Zealand"

Illustration for Sentencing Act 2002

The Sentencing Act 2002 has some special rules that apply when laws are changed. You need to understand what happens when a law change affects a sentence that has already been given. The law change can affect the conditions of a sentence, like electronic monitoring or supervision.

Some law changes are about drug and alcohol testing for people who have been sentenced. If you were given a sentence before the law change, the new rules might still apply to you. But if you were sentenced before the law change for an offence you committed before the law change, the old rules will still apply.

There are also rules about what happens to people who were sentenced under the old "Three Strikes" law. If you were sentenced under that law, you might not be eligible for release or re-sentencing, even if the law has changed. The court will decide what happens to you based on the law that was in place when you were sentenced.

The law also says that you are not entitled to compensation just because the sentencing rules have changed. But you might still be able to claim compensation if your rights under the New Zealand Bill of Rights Act 1990 have been breached.

The Sentencing (Reinstating Three Strikes) Amendment Act 2024 has introduced new rules about warnings for offenders. If you have a warning under the old regime, it might be reactivated under the new regime. The new regime applies to reactivated warnings, with some modifications. The court will decide how the new regime applies to your warning.

Remember, these rules are complex and can be hard to understand. It's always a good idea to talk to a lawyer or someone who can help you understand how the law applies to your situation.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM7082323.

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"Old rules that are no longer valid"

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Schedule 1AB: Qualifying offences, or

"Crimes that are very serious and have big penalties"

1AATransitional, savings, and related provisions Empowered by s 4A

1Provisions relating to Sentencing (Electronic Monitoring of Offenders) Amendment Act 2016

1Interpretation

  1. In this Part, commencement date means the date on which the Sentencing (Electronic Monitoring of Offenders) Amendment Act 2016 comes into force.

2Varying special conditions for sentence of intensive supervision imposed before commencement date

  1. This clause applies to a sentence of intensive supervision imposed before the commencement date.

  2. An electronic monitoring condition may be imposed in the circumstances specified in subclause (3) even though such a condition—

  3. was not available as a special condition before the commencement date; and
    1. could not have been imposed on the offender at the time when the offender was convicted of the offence for which the sentence of intensive supervision was imposed.

      1. The circumstances are as follows:

      2. if the court imposes additional special conditions under section 54K(3)(a):
        1. if the court cancels a sentence and substitutes a sentence of intensive supervision (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).

          3Varying release conditions for sentence of imprisonment of not more than 24 months imposed before commencement date

          1. This clause applies to a sentence of imprisonment of not more than 24 months imposed before the commencement date.

          2. An electronic monitoring condition may be imposed in the circumstances specified in subclause (3) even though such a condition—

          3. was not available before the commencement date; and
            1. could not have been imposed on the offender at the time when the offender was convicted of the offence for which the sentence of imprisonment of not more than 24 months was imposed.

              1. The circumstances are as follows:

              2. if the court imposes an additional release condition under section 94(3)(a):
                1. if the court discharges a release condition and substitutes another release condition under section 94(3)(b).

                  2Provisions relating to Sentencing (Drug and Alcohol Testing) Amendment Act 2016

                  4Interpretation

                  1. In this Part,—

                    commencement date means the date on which the Sentencing (Drug and Alcohol Testing) Amendment Act 2016 comes into force

                      pre-commencement drug or alcohol condition means a condition of a sentence of supervision, intensive supervision, or home detention, or a post-detention or post-imprisonment condition,—

                      1. that is imposed before the commencement date under section 52(2)(c), 54I(3)(e), 80D(4)(e), 80N(1) and (2)(b), or 93(1) or (2)(b); and
                        1. that prohibits an offender from doing 1 or more of the following:
                          1. using (as defined in section 4(1)) a controlled drug:
                            1. using a psychoactive substance:
                              1. consuming alcohol.

                              5Testing and monitoring of offender subject to sentence of supervision with pre-commencement drug or alcohol condition

                              1. This clause applies if an offender is subject to a sentence of supervision with a pre-commencement drug or alcohol condition.

                              2. On and from the commencement date, sections 70AA and 80ZO to 80ZU, and any rules made under section 80ZT, apply in respect of the offender—

                              3. as if the pre-commencement drug or alcohol condition were a drug or alcohol condition imposed by a court on or after the commencement date; and
                                1. as if the court had complied with section 80ZN(3) in respect of the condition.

                                  6Testing and monitoring of offender subject to sentence of intensive supervision with pre-commencement drug or alcohol condition

                                  1. This clause applies if an offender is subject to a sentence of intensive supervision with a pre-commencement drug or alcohol condition.

                                  2. On and from the commencement date, sections 70B and 80ZO to 80ZU, and any rules made under section 80ZT, apply in respect of the offender—

                                  3. as if the pre-commencement drug or alcohol condition were a drug or alcohol condition imposed by a court on or after the commencement date; and
                                    1. as if the court had complied with section 80ZN(3) in respect of the condition.

                                      7Testing and monitoring of offender subject to sentence of home detention with pre-commencement drug or alcohol condition

                                      1. This clause applies if an offender is subject to a sentence of home detention with a pre-commencement drug or alcohol condition.

                                      2. On and from the commencement date, sections 80SA and 80ZO to 80ZU, and any rules made under section 80ZT, apply in respect of the offender—

                                      3. as if the pre-commencement drug or alcohol condition were a drug or alcohol condition imposed by a court on or after the commencement date; and
                                        1. as if the court had complied with section 80ZN(3) in respect of the condition.

                                          8Testing and monitoring of offender subject to post-detention condition that is a pre-commencement drug or alcohol condition

                                          1. This clause applies if an offender is subject to a post-detention condition that is a pre-commencement drug or alcohol condition.

                                          2. On and from the commencement date, sections 80UA and 80ZO to 80ZU, and any rules made under section 80ZT, apply in respect of the offender—

                                          3. as if the pre-commencement drug or alcohol condition were a drug or alcohol condition imposed by a court on or after the commencement date; and
                                            1. as if the court had complied with section 80ZN(3) in respect of the condition.

                                              9Testing and monitoring of offender subject to post-imprisonment condition that is a pre-commencement drug or alcohol condition

                                              1. This clause applies if an offender is subject to a post-imprisonment condition that is a pre-commencement drug or alcohol condition.

                                              2. On and from the commencement date, sections 80ZO to 80ZU and 96A, and any rules made under section 80ZT, apply in respect of the offender—

                                              3. as if the pre-commencement drug or alcohol condition were a drug or alcohol condition imposed by a court on or after the commencement date; and
                                                1. as if the court had complied with section 80ZN(3) in respect of the condition.

                                                  3Provisions relating to Oranga Tamariki Legislation Act 2019

                                                  10Interpretation

                                                  1. In this Part,—

                                                    2019 Act means the Oranga Tamariki Legislation Act 2019

                                                      commencement date means the date on which sections 54 and 55 of the 2019 Act come into force

                                                        proceeding—

                                                        1. means a proceeding that has been commenced by—
                                                          1. the filing of a charging document; or
                                                            1. the filing of a notice of hearing under, or in accordance with, section 21(8) of the Summary Proceedings Act 1957; and
                                                            2. includes an appeal against conviction or sentence.

                                                            Notes
                                                            • Schedule 1AA clause 10: inserted, on , by section 56 of the Oranga Tamariki Legislation Act 2019 (2019 No 30).

                                                            11Proceeding under way on commencement date against defendant aged 17 years

                                                            1. This clause applies to any defendant aged 17 years in a proceeding that is under way in the District Court or the High Court on the commencement date.

                                                            2. The defendant must be dealt with by the court under this Act as if sections 54 and 55 of the 2019 Act had not come into force.

                                                            Notes
                                                            • Schedule 1AA clause 11: inserted, on , by section 56 of the Oranga Tamariki Legislation Act 2019 (2019 No 30).

                                                            12Proceeding commenced on or after commencement date for offence committed before commencement date

                                                            1. This clause applies to any defendant aged 17 years in a proceeding that—

                                                            2. is commenced on or after the commencement date; and
                                                              1. is for an offence, or an alleged offence, that was committed before the commencement date when the defendant was 17 years of age.

                                                                1. The defendant must be dealt with by the court under this Act as amended by sections 54 and 55 of the 2019 Act.

                                                                Notes
                                                                • Schedule 1AA clause 12: inserted, on , by section 56 of the Oranga Tamariki Legislation Act 2019 (2019 No 30).

                                                                4Provisions relating to Three Strikes Legislation Repeal Act 2022

                                                                13AAAInterpretation

                                                                1. In this Part, stage-2 or stage-3 offence means a stage-2 offence or a stage-3 offence as those terms were defined in section 86A immediately before that section was repealed, on 16 August 2022, by section 5 of the Three Strikes Legislation Repeal Act 2022.

                                                                Notes
                                                                • Schedule 1AA clause 13AAA: inserted, on , by section 11(1) of the Sentencing (Reinstating Three Strikes) Amendment Act 2024 (2024 No 54).

                                                                13Treatment of persons convicted and sentenced before enactment of Three Strikes Legislation Repeal Act 2022

                                                                1. This clause applies to a person who, before the commencement of the Three Strikes Legislation Repeal Act 2022, was convicted of and sentenced for a stage-2 or stage-3 offence.

                                                                2. If this clause applies, the person is not eligible for release or re-sentencing as a consequence of any provision brought into force under the Three Strikes Legislation Repeal Act 2022.

                                                                Notes
                                                                • Schedule 1AA clause 13: inserted, on , by section 10 of the Three Strikes Legislation Repeal Act 2022 (2022 No 40).

                                                                14Treatment of persons convicted or sentenced after enactment of Three Strikes Legislation Repeal Act 2022

                                                                1. This clause applies to a person who, on or after the commencement of the Three Strikes Legislation Repeal Act 2022, is convicted of or sentenced for an offence that would have been a stage-2 or stage-3 offence if the Three Strikes Legislation Repeal Act 2022 had not been brought into force.

                                                                2. If this clause applies, in the case of a conflict between section 34 of the Legislation Act 2019 and—

                                                                3. section 6 of the Sentencing Act 2002, section 6 prevails; or
                                                                  1. section 25(g) of the New Zealand Bill of Rights Act 1990, section 25(g) prevails.

                                                                    Notes
                                                                    • Schedule 1AA clause 14: inserted, on , by section 10 of the Three Strikes Legislation Repeal Act 2022 (2022 No 40).

                                                                    15No entitlement to compensation

                                                                    1. A person is not entitled to compensation of any kind, on account of any alteration of sentencing rules as a consequence of any provision brought into force under the Sentencing and Parole Reform Act 2010, in respect of the fact that the person—

                                                                    2. was charged with, or prosecuted for, the offence; or
                                                                      1. admitted committing or pleaded guilty to, or was found to have committed, was convicted of, was sentenced for, or had an order or a direction made against the person for, the offence; or
                                                                        1. served a sentence for, or complied with an order or a direction made against the person because of committing, the offence; or
                                                                          1. was required to pay a fine or other money (including costs or any amount by way of restitution or compensation) on account of committing, or being convicted of, or sentenced for, the offence; or
                                                                            1. incurred any loss, or suffered any consequence (including being sentenced, or otherwise dealt with, as an offender, or as a repeat offender, of any kind), as a result of any circumstance referred to in paragraph (a), (b), (c), or (d).

                                                                              1. Nothing in subclause (1) prevents a person from—

                                                                              2. being entitled to compensation in respect of anything that occurred while the person was serving a sentence or complying with an order or a direction:
                                                                                1. bringing a claim for a breach of their rights under the New Zealand Bill of Rights Act 1990 in respect of being convicted of or sentenced for an offence specified in clause 13(1).

                                                                                  1. Nothing in subclause (2)(b) is, or implies, an acknowledgement or a denial that relief (monetary or otherwise) may be available for a breach of the New Zealand Bill of Rights Act 1990 in respect of being convicted of or sentenced for an offence specified in clause 13(1).

                                                                                  Compare
                                                                                  Notes
                                                                                  • Schedule 1AA clause 15: inserted, on , by section 10 of the Three Strikes Legislation Repeal Act 2022 (2022 No 40).

                                                                                  5Provisions relating to Sentencing Amendment Act 2024

                                                                                  16Interpretation

                                                                                  1. In this Part,—

                                                                                    amendment Act means the Sentencing Amendment Act 2024

                                                                                      commencement date means the date on which section 4 of the amendment Act comes into force.

                                                                                      Notes
                                                                                      • Schedule 1AA clause 16: inserted, on , by section 5(a) of the Sentencing Amendment Act 2024 (2024 No 37).

                                                                                      17Application to proceedings on or after commencement date

                                                                                      1. Section 9(1)(hb) of this Act (as replaced by the amendment Act) applies only to proceedings commenced on or after the commencement date.

                                                                                      Notes
                                                                                      • Schedule 1AA clause 17: inserted, on , by section 5(a) of the Sentencing Amendment Act 2024 (2024 No 37).

                                                                                      6Provisions relating to Sentencing (Reinstating Three Strikes) Amendment Act 2024

                                                                                      18Interpretation

                                                                                      1. In this Part,—

                                                                                        amendment Act means the Sentencing (Reinstating Three Strikes) Amendment Act 2024

                                                                                          commencement date means the date on which the amendment Act, other than sections 21(2), 23(2), and 24, comes into force

                                                                                            current, for a warning under the old regime, means that the record—

                                                                                            1. has not ceased, or been cancelled, under section 86F of the old regime, when that section was in force; and
                                                                                              1. would not have ceased, or have been cancelled, under that section if it were in force—
                                                                                                1. on and after 16 August 2022; and
                                                                                                  1. until the commencement date

                                                                                                  new regime means sections 86J to 86X (additional consequences for certain repeated offending), and related legislation, as in force on and after the commencement date

                                                                                                    old regime means sections 86A to 86I (additional consequences for repeated serious violent offending), and related legislation, as in force—

                                                                                                    1. on and after 1 June 2010; and
                                                                                                      1. until immediately before 16 August 2022

                                                                                                        reactivated warning means a warning under the old regime that under clause 21 is taken to be the equivalent warning under the new regime

                                                                                                          warning under the new regime, in relation to an offender, means a record under the new regime that is—

                                                                                                          1. a record of first warning (as defined in section 86J of the new regime); or
                                                                                                            1. a record of subsequent warning (as defined in section 86J of the new regime)

                                                                                                              warning under the old regime, in relation to an offender, means a record under the old regime that, immediately before the commencement date, is current (as defined in this clause), and is—

                                                                                                              1. a record of first warning (as defined in section 86A of the old regime); or
                                                                                                                1. a record of final warning (as defined in section 86A of the old regime).

                                                                                                                Notes
                                                                                                                • Schedule 1AA clause 18: inserted, on , by section 11(2)(a) of the Sentencing (Reinstating Three Strikes) Amendment Act 2024 (2024 No 54).

                                                                                                                19Offences affected by amendments

                                                                                                                1. The amendments made to this Act by the amendment Act do not apply to any offence committed, whether in whole or in part, before the commencement date.

                                                                                                                2. However, subclause (1) is subject to clauses 21 to 24.

                                                                                                                Notes
                                                                                                                • Schedule 1AA clause 19: inserted, on , by section 11(2)(a) of the Sentencing (Reinstating Three Strikes) Amendment Act 2024 (2024 No 54).

                                                                                                                20No entitlement to compensation

                                                                                                                1. A person is not entitled to compensation of any kind on account of any difference between—

                                                                                                                2. this Act as in force immediately before 16 August 2022; and
                                                                                                                  1. this Act as in force on the commencement date.

                                                                                                                    Notes
                                                                                                                    • Schedule 1AA clause 20: inserted, on , by section 11(2)(a) of the Sentencing (Reinstating Three Strikes) Amendment Act 2024 (2024 No 54).

                                                                                                                    Warnings under old regime reactivated under new regime

                                                                                                                    21Warning under old regime reactivated unless exception applies

                                                                                                                    1. A warning under the old regime is taken to be the equivalent warning under the new regime (see clause 22).

                                                                                                                    2. Subclause (1) does not apply if the warning under the old regime is for a stage-1 offence for which the sentence imposed is not a qualifying sentence as defined in paragraph (a) of the definition of that term in section 86J of the new regime.

                                                                                                                    3. Subclause (1) does not apply if the warning under the old regime is for a stage-2 offence for which the sentence imposed is not a qualifying sentence as defined in paragraph (b) of the definition of that term in section 86J of the new regime.

                                                                                                                    4. Subclause (3) is subject to the exception in subclause (5).

                                                                                                                    5. Subclause (1) does apply to the warning under the old regime (see also clause 22(2) and (3)) if that warning is for a stage-2 offence and the offender has both of the following warnings under the old regime:

                                                                                                                    6. a warning for a stage-1 offence to which subclause (2) applies; and
                                                                                                                      1. a warning for a stage-2 offence for which the sentence imposed is—
                                                                                                                        1. a determinate sentence of imprisonment of more than 12 months; or
                                                                                                                          1. an indeterminate sentence of imprisonment.

                                                                                                                          Notes
                                                                                                                          • Schedule 1AA clause 21: inserted, on , by section 11(2)(a) of the Sentencing (Reinstating Three Strikes) Amendment Act 2024 (2024 No 54).

                                                                                                                          22Equivalent warning under new regime

                                                                                                                          1. The equivalent warning under the new regime is set out in the following table:

                                                                                                                            The following table is small in size and has 3 columns. Column 1 is headed Item. Column 2 is headed Warning and sentence under old regime. Column 3 is headed Equivalent under new regime.
                                                                                                                            Item Warning and sentence under old regime Equivalent under new regime
                                                                                                                            1 Record of first warning under section 86B(3) of the old regime for a stage-1 offence for which the sentence imposed is a qualifying sentence under paragraph (a) of the definition of that term in section 86J of the new regime Record of first warning under section 86K(4)
                                                                                                                            2 Record of final warning under section 86C(3) or 86E(8) of the old regime for a stage-2 offence for which the sentence imposed is a qualifying sentence under paragraph (b) of the definition of that term in section 86J of the new regime Record of subsequent warning under section 86L(4)

                                                                                                                          2. Subclause (1) is subject to the exception in subclause (3).

                                                                                                                          3. A warning under the old regime that is a record of final warning is taken to be a record of first warning under section 86K(4) of the new regime if the offender has both of the following warnings under the old regime:

                                                                                                                          4. a record of first warning that is not a reactivated warning under clause 21(2); and
                                                                                                                            1. a record of final warning that is a reactivated warning under clause 21(5).

                                                                                                                              Notes
                                                                                                                              • Schedule 1AA clause 22: inserted, on , by section 11(2)(a) of the Sentencing (Reinstating Three Strikes) Amendment Act 2024 (2024 No 54).

                                                                                                                              23How new regime applies to reactivated warning

                                                                                                                              1. The new regime applies, with any necessary modifications, to a reactivated warning.

                                                                                                                              2. In particular, the following sections of the new regime apply, with any necessary modifications, to a reactivated warning:

                                                                                                                              3. section 86U (continuing effect of warnings); and
                                                                                                                                1. section 86V (how cessation of record affects later sentences).

                                                                                                                                  1. Subclause (2) does not limit the generality of subclause (1).

                                                                                                                                  Notes
                                                                                                                                  • Schedule 1AA clause 23: inserted, on , by section 11(2)(a) of the Sentencing (Reinstating Three Strikes) Amendment Act 2024 (2024 No 54).

                                                                                                                                  24Differences in giving or recording of warnings

                                                                                                                                  1. Clauses 21 to 23 apply regardless of any difference—

                                                                                                                                  2. between the old regime and the new regime; and
                                                                                                                                    1. related to the giving or recording of warnings.

                                                                                                                                      Notes
                                                                                                                                      • Schedule 1AA clause 24: inserted, on , by section 11(2)(a) of the Sentencing (Reinstating Three Strikes) Amendment Act 2024 (2024 No 54).