Winter 2010 Newsletter

Winter 2010 The Unpublished Electoral Roll

With local body elections later this year and the parliamentary election next year, work is underway on the electoral rolls to ensure they are correct and up to date.  The electoral rolls are an important source of public information about an individual’s identifying information such as whereabouts, occupation and their full name. If you are 18 years or older and are eligible to vote, then you must enrol, although it is not compulsory to vote. There are many reasons why eligible voters may not wish their details to appear in a public roll, and the unpublished roll is designed to allow those who are eligible to vote, but whose personal safety may be compromised by public notification of their whereabouts, to register and vote. To qualify for enrolment on the unpublished roll, voters must apply and supply evidence to support the claim that safety is an issue.  Satisfactory evidence includes: 

  • a copy of a Family Court protection order
  • a copy of a restraining order under the Harassment Act 1997
  • a statutory declaration by a police officer stating your personal safety or that of your family may be prejudiced by publication in the roll
  • a letter from someone with personal knowledge of your circumstances stating the personal safety of you or your family may be at risk if publication on the roll proceeds.  An acceptable letter writer may be your employer, lawyer or justice of the peace.
Voters registered on the unpublished roll must still keep the registrar informed of any change of name, address and occupation. You may remain on the unpublished roll for as long as there is a need, but you will be asked from time to time to confirm that your circumstances are unchanged. The electoral rolls (both published and unpublished) are maintained by the Registrar of Electors, who can be contacted at 0800 367656.  Further information is available at www.elections.org.nz.  We also have brochures on the unpublished roll, supplied by the registrar, available at reception.

Criminal Recovery (Proceeds) Act 2009

The Criminal Proceeds (Recovery) Act 2009 came into effect in December 2009.  The objective of the Act is to “provide a legislative framework for the confiscation of property from persons who have engaged in or profited from criminal activity”.  The underlying premise is that a person should not be allowed to benefit from criminal activity.  It is reported that since the Act’s introduction the police have seized $11 million of the identified $36 million worth of assets that they believe have been obtained through criminal activity. The Act has repealed the Proceeds of Crime Act 1991, and introduced a new civil forfeiture regime similar to those introduced in the last decade in Australia, Canada, Ireland and the UK.  Under the new Act, the Serious Fraud Office may now apply to the High Court to freeze a person’s assets and then apply for a forfeiture order to seize the frozen money or assets. The Crown must prove, on the balance of probabilities, that the person has benefited from significant criminal activity, whether the offending has been proven in Court or not.  Unless the person can prove the assets in question have been acquired legitimately, they will be forfeited. The Act allows criminal gangs to be stripped of their assets and the profits of their criminal activities.  The recovered proceeds are then returned to the Crown for use in funding anti-P initiatives, expanding police and customs initiatives to combat gangs and providing additional drug treatment programmes.  The police say this will be a major step in assisting them to dismantle organised crime, will act as a disincentive to criminals and will disrupt their ability to finance future illegal activity.


New Tax Rates

Interest earned on client funds in our trust account is subject to Resident Withholding Tax.  Please let us know if your tax rate has changed as a result of the budget tax announcements.

 

 

Three Strikes Law

While there is consensus over the fact that there is too much serious crime in New Zealand, debate has raged over whether the ‘three strikes’ legislation is the correct way forward. The legislation lists over 36 offences which are qualifying offences and count as a strike against the offender: 

  • Strike one occurs when the offender commits the first qualifying offence. The offender will receive the standard sentence and a first warning.
  • Strike two occurs if the offender commits another qualifying offence. The offender must serve the sentence without parole and will receive a second warning.
  • Strike three occurs if the offender commits a third qualifying offence. The offender must be sentenced to the maximum sentence for that offence with no parole.

For murder and manslaughter the maximum sentence will be life imprisonment.  For aggravated robbery, kidnapping, and attempted murder the maximum sentence will be 14 years, and for sexual violation 20 years.  For the second and third strikes these sentences will be served without eligibility for parole.  Preventative detention will still be available if a longer sentence is required. Supporters argue the new law will improve public safety by locking up offenders for a longer period and improve public confidence in the justice system.  It is also said the new law will relieve victims of the stress of attending parole hearings, and the anxiety and uncertainty of not knowing when offenders will be released on parole. Critics argue that the ‘three strikes’ law will take away judicial discretion and ignore factors which should be considered when assessing sentencing such as premeditation, an early guilty plea, and an offender who is remorseful.  Dr Richard Ekins, Senior Lecturer at Auckland University’s Faculty of Law, has highlighted instances where inconsistencies may occur:

  • Two men who commit an unpremeditated aggravated street robbery would ordinarily receive a sentence of 18 months to 3 years.  If one of the men has previously had two strikes then he has to be sentenced to 14 years in prison – the maximum penalty for aggravated robbery.
  • An armed robber, with no prior convictions, may brutally assault a victim while his accomplice, with two previous strikes, may be merely the getaway driver.  In sentencing, the judge will have no discretion with the getaway driver – he will receive the maximum sentence with no parole while the armed robber may comparatively be punished less severely.

No doubt there will be ongoing debate about the merits and efficacy of the ‘three strikes’ law into the future. Watch this space for updates.

 

Snippets

The Case of the Nude Cyclist

A committed cyclist and naturalist convicted of offensive behaviour for cycling while nude, (wearing only a helmet and a heart rate monitor) recently successfully appealed his conviction.

The High Court held that ‘offensive behaviour’ is behaviour which involves ‘substantial offence’ and ‘arouses anger, resentment, disgust or outrage’.

The Judge held that, in this particular case, the cyclist’s actions did not meet the necessary threshold because the complainant was only ‘quite’ disgusted.

It was also relevant that it occurred on a relatively quiet rural road and the complainant confirmed that she had not been able to see the cyclist’s genitals.  The opportunity for exposure to his nakedness would therefore be considerably less than would be the case, for example, when a person walks naked along a suburban street.

The Judge emphasised this does not mean that nude cycling cannot constitute offensive behaviour.  In other circumstances, the Court would consider whether the behaviour may arouse real anger, resentment, disgust or outrage in the mind of a reasonable person.  It is a question to be assessed on the particular facts of each case.

Unfair Parking Ticket

Received a parking ticket?  If so, read the ticket carefully to ensure all the details are correct including:

Next look for any signs in the vicinity relating to the car park to ensure any signs are clear and unambiguous.

If details of the parking ticket are incorrect or signs, including yellow lines, are unclear for any reason, you may have grounds to apply to have the ticket overturned.

Driving Disqualification

A driving disqualification may be more draconian than you think.  A disqualified Taranaki driver was recently having some motorised fun in a friend’s golf cart, on the verge of a state highway, when he was spotted by the long arm (eye) of the law.  A conviction for driving while suspended quickly followed.

The moral of the story is that anything with a motor should be avoided – even if the maximum speed is 10k!

 

All information in this newsletter is to the best of the authors’ knowledge true and accurate.  No liability is assumed by the authors or publishers for any losses suffered by any person relying directly or indirectly upon this newsletter.  It is recommended that clients should consult a senior representative of the firm before acting on this information.

 

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