How to: Facing criminal changes

How criminal proceedings are begun against you

A criminal case against you may be commenced in one of three ways:

• by a summons being issued by a District Court judge for you to appear in court, or
• by the Police arresting you without a warrant (they can do this if they have reasonable cause to believe that you have committed, are committing or are attempting to commit a crime), or
• by the Police arresting you under a warrant issued by a District Court judge

There are strict rules governing Police powers of arrest (see How to know your rights when arrested or charged with an offence, and see also How to: Police powers of entry and search).

What happens at my first appearance in court?

At your first appearance in court you have the option of entering a plea to the charge (Guilty or Not Guilty) or of entering no plea, in which case you will return to enter a plea at a later date.

It is frequently advisable to enter no plea so that you can meet with your lawyer (if you have not done so already or if you do not have a lawyer) and obtain advice as to how to plead.

If you do not have your own lawyer, the Duty Solicitor is available to advise you at your first appearance. The Duty Solicitor’s services are free.

What happens after the first appearance?

After your first appearance you are "remanded" until your next court appearance. You will either be:

• remanded at large, which means you are free to go until your next appearance, or
• remanded on bail (see below), which means you are released on conditions (such as having to live at a particular place, having no contact with the victim, or having to report to the Police while on bail), or
• remanded in custody, which means you are held in prison until your next court date

You will usually be remanded for a week. This will give you, and your lawyer if you have one, time to examine the circumstances and decide how to approach your case.

Throughout the court process, you will be "remanded" whenever you are waiting for your next court appearance.

Will I be able to get bail?

A basic premise in the New Zealand criminal system is that you are presumed innocent until you are proven guilty. You therefore have a right to bail for some offences: see How to obtain bail.

In other cases the Police (before you have appeared in court) or the court (when you have appeared in court) may grant you bail unless there are good reasons to believe that you are a danger to the community. If the Police refuse you bail, or if when you appear at court the Police oppose bail, you will appear before a District Court judge, who will decide whether bail will be granted.

If the judge refuses to grant you bail you will remain in Police custody and be taken to prison.

There may also be a further right of appeal: see How to obtain bail.

If you breach a condition imposed as part of your bail, you will be arrested and charged with a separate offence (see How to: Breach of bail).

What happens if I plead Guilty?

If you plead Guilty, the court will set a date for sentencing or, if the offence is a minor one, you may be sentenced on the same day. The court will usually order pre-sentence reports to be prepared.

The judge will hear submissions from your lawyer (or the Duty Solicitor, if you plead Guilty at your first appearance and are sentenced on the same day) and from the prosecution about what sentence you should be given. The judge will then pass sentence.

What happens if I plead Not Guilty?

If you plead Not Guilty, what happens next depends on the nature of the offence with which you are charged:

• If it is a "summary" offence (these are more minor offences, such as those contained in the SUMMARY OFFENCES ACT 1981), the matter will be dealt with in the District Court before a judge alone. There will initially be a "Status Hearing", which is where the judge, the prosecution and you and your lawyer meet to discuss the case, including what a likely sentence will be if you are convicted. Sometimes the parties may agree at a Status Hearing that the Police or prosecution will drop the charge if the defendant pleads Guilty to a lesser one. If you maintain your Guilty plea your case will go to a defended hearing (a trial in the District Court).
• If the offence is an "indictable" offence (these are generally more serious offences and are contained in the CRIMES ACT 1961), there will be a "Preliminary Hearing" before a District Court judge or two Justices of the Peace, to determine whether there is sufficient evidence for your case to go forward to a trial (usually a jury trial) in the District Court or High Court. (A Preliminary Hearing is sometimes also called a "depositions hearing".)

What sentences are available to the court?

The following is the range of sentences that are available to the court:

• Discharge without conviction – Here you’re released without a conviction and therefore without getting a criminal record. The court can do this when the offence is minor and the effects of getting a conviction would be out of proportion to the seriousness of the offence that you committed. But you may have to pay court costs or pay compensation ("reparation") to the victim.
• Conviction and discharge– In this case you’re convicted and you get a criminal record, but the court doesn’t impose a penalty. You may have to pay court costs or pay compensation ("reparation") to the victim.
• Order to come up for sentence if called upon – Instead of sentencing you the court can order that you’ll have to come back to court if called upon to do so at any time during a set period (up to one year). This is sometimes called a "deferred sentence". You’ll have to go back to court if you commit another offence during that period or if, for example, you’ve been ordered to compensate the victim but you haven’t done this. If you do have to go back to court you’ll be sentenced for the original offence for which you were given the deferred sentence.
• Reparation– This is where you pay money to the victim as compensation for emotional harm or property damage (physical harm is covered by ACC), or for harm that was an indirect result of the physical or emotional harm or property damage that you caused. The judge may ask a Probation Officer to prepare a reparation report, which will inform the judge about the damage the victim has suffered and how much money you can afford to pay.
• Fines– Usually there’s a maximum fine set by the Act that creates the offence.
• Non-association orders– If the offence is one for which you could be sent to prison, the court can order you not to meet or otherwise have contact with specified people, for up to one year.
• Supervision– If you’re sentenced to supervision (formerly called "probation"), you’ll be allowed to stay in the community under the supervision of a Probation Officer. The sentence can be for between six months and two years. You’ll have to report regularly to your Probation Officer and won’t be able to move outside the Probation Officer’s area without getting his or her permission. The Probation Officer can stop you from doing certain jobs or types of jobs, from living at certain addresses and from having contact with specific people. The court can also impose conditions about where you must live and work. It’s an offence to breach a condition of your supervision.
• Community work– You can be ordered to do up to 400 hours community work (this is a modification of the old sentence of "community service"). Your Probation Officer can reduce this by 10 percent if you have a good record of complying with the sentence. Sentences of up to 200 hours of community work must be completed within a year; sentences of more than 200 hours must be completed within two years. If you breach any of the terms of your sentence, you can be imprisoned for up to three months or fined up to $1,000. During your sentence you’ll have to report to a Probation Officer, and you’ll have to notify the Probation Officer if you move to a new address.
• Imprisonment– The offence for which you’re sentenced will probably have a maximum prison term set by the Act that created the offence. Subject to that maximum, the length of the prison sentence will depend on how serious the offence was, the level of your involvement in it, any previous offences that you’ve committed and how you’ve responded to any previous sentences you’ve been given. In some cases you may be able to serve your sentence at home under electronic monitoring ("home detention").
• Disqualification and confiscation of your vehicle - If you're convicted of a drink-driving offence or a serious traffic offence, the law requires the judge to disqualify you from driving for a set period (six months or a year, depending on the offence). It's an offence to drive while disqualified. Your vehicle can also be confiscated and sold if you're convicted of a drink-driving offence, of reckless or dangerous driving, of a "boy racing" offence, of careless or inconsiderate driving causing injury or death, or of causing injury or death while speeding or otherwise breaching traffic laws. Your vehicle can also be confiscated if you're convicted of an offence punishable by a prison term of more than one year and the vehicle was used to commit the offence. The court is required to confiscate a vehicle in certain cases of repeat offending against traffic laws.

Cautionary notes

• In any criminal proceedings it is advisable that you seek advice from a lawyer so that you are aware of your rights throughout the process and are adequately represented. If you cannot afford to hire a lawyer, you may be eligible for legal aid so that you are able to do so: see How to obtain criminal legal aid.
• When facing criminal charges, it is important that you do not simply plead Guilty to get it over with. If you do not have your own lawyer when you first appear, you should get advice from the Duty Solicitor. You may have a defence to the charge that you were not aware of; even if you plead Guilty there may be useful information that you can provide the Duty Solicitor with so that he or she can make an effective submission to the judge before you are sentenced. The Duty Solicitor is likely to be busy, so you should arrive at court early to provide sufficient time to discuss your case.