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Criminal Procedure Act 2011

Appeals - Appeals against conviction - First appeals

234: Conviction and sentence for different offence may be substituted

You could also call this:

"The court can change your conviction to a different crime if they think the facts fit better."

Illustration for Criminal Procedure Act 2011

If you were found guilty of a crime, called offence A, and you appeal, the appeal court might change the conviction to a different crime, called offence B. This can happen if the court thinks you could have been found guilty of offence B when you were first tried for offence A. The court must also think that the judge or jury would have been satisfied with the facts that prove you guilty of offence B, based on what is allowed by section 136(1).

If you pleaded guilty to offence A and you appeal, the court might change the conviction to offence B if they think the facts you agreed to support a conviction for offence B, and you agree to this change.

When the court makes this change, they can give you a new sentence for offence B, which can be more or less severe than the original sentence, or they can send the case back to the original court to decide on a new sentence.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM3865774.

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Crime and justice > Criminal lawCrime and justice > Courts and legal help
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Part 6Appeals
Appeals against conviction: First appeals

234Conviction and sentence for different offence may be substituted

  1. Subsection (2) applies if a person was found guilty at trial of an offence (offence A) and the first appeal court allows the convicted person's appeal against conviction for that offence.

  2. The first appeal court may direct that a judgment of conviction for a different offence (offence B), including an offence that the trial court could, in accordance with section 136(1), have substituted for offence A, be entered if satisfied that—

  3. the person could have been found guilty, at the person's trial for offence A, of offence B; and
    1. the trial judge or the jury, as required, must have been satisfied of facts that prove the person guilty of offence B.

      1. Subsection (4) applies if a person pleaded guilty before or at trial to an offence (offence A) and the first appeal court allows the convicted person's appeal against conviction for that offence.

      2. If the first appeal court is satisfied that facts admitted by the convicted person in relation to the charge for offence A support a conviction for a different offence (offence B), the first appeal court may, if the convicted person agrees, direct that a judgment of conviction for offence B be entered.

      3. On making a direction under subsection (2) or (4), the first appeal court may—

      4. impose a sentence for offence B (whether more or less severe) that is allowed by law; or
        1. remit the proceeding to the court that imposed the sentence for offence A and direct that court to take the action described in paragraph (a).

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