1In this Report, we have recommended the creation of a number of new offences and the continuation of some existing offences. We now provide some analysis for setting the maximum penalties for each of these offences. It is helpful to do this analysis across all the new and continued offences together to ensure there is consistency both between offences and with offences in other analogous legislation.
2Unfortunately, there is no agreed methodology for setting maximum penalties in New Zealand legislation. This creates a risk that maximum penalties are based on intuition and produce unintended irrational results across the statute book. To minimise this risk for the offences proposed in this Report, we have applied a number of principles to guide our analysis.
3The Sentencing Act 2002 establishes the purposes of sentencing. Most of those purposes (particularly to hold the offender accountable and to denounce the offender’s conduct) require an assessment of the seriousness of the offending. Therefore, assessing the seriousness of the worst class of behaviour that would breach an offence is the first step in establishing what the maximum penalty for that offence should be.
5The type of culpability considerations that are relevant to setting maximum penalties are the mental elements of an offence—that is, whether the relevant action must be purposeful, knowing, reckless or negligent. Each of these may alter the seriousness of the offending in a different way.
7The second step in our analysis involved an assessment of analogous offences already on the statute book. In assessing analogous offences, we found a wide variety of maximum penalties, which probably reflects the lack of methodology for setting maximum penalties. Consequently, this step was not determinative but is used merely as a guide.
8The table below lists each of the 11 offences proposed in this Report. For the purposes of assessing their seriousness, we consider that they tend to fall into four categories according to the circumstances in which they could be committed:
Category 1. Offences that could only be committed by providers of funeral services in the course of providing those services.
Category 2. Offences that most usually could be committed by funeral service providers but could be committed by the public when a funeral service provider is not engaged.
Category 3. Offences that apply generally to the public, including funeral directors.
Category 4. An offence that could only be committed by managers of community cemeteries.
| Proposed offences | |
|---|---|
| 1. Offences that could only be committed by providers of funeral services in the course of providing those services | |
| Rec 90 | Carrying on business as a funeral service provider in breach of requirement to be registered |
| Rec 94 | Knowingly breaching a duty of an owner or manager of a funeral service business |
| Rec 103 | Breaching the disclosure requirements for funeral service businesses |
| 2. Offences that most usually could be committed by funeral service providers but could be committed by the public when a funeral service provider is not engaged | |
| Rec 14 | Disposing of or embalming a body before cause of death is determined |
| Rec 73 | Knowingly cremating or otherwise disposing of a body except in an approved cremator or other approved device, unless prior permission of the local authority is obtained |
| 3. Offences that apply generally to the public, including funeral directors | |
| Rec 54 | Knowingly removing a body or remains of a body buried in any cemetery or place of burial without the permission of the cemetery manager or the local authority |
| Rec 62 | Knowingly burying a body in any land that is not an approved cemetery or burial ground |
| Rec 79 | Breaching the obligation to treat any dead human body with respect |
| Rec 80 | Failing to dispose of a body without undue delay |
| 4. An offence that could only be committed by managers of community cemeteries | |
| Appendix A | Being a community manager of a cemetery and exercising a power for a purpose other than the management, administration or improvement of the cemetery |
9We consider that none of these offences should carry a term of imprisonment. Prison should be reserved for the most serious offending and when other penalties would not achieve adequate accountability. None of the offences we propose in this Report meet this threshold.
10As we demonstrate below, we have reached the conclusion that an appropriate maximum fine for all but one of the offences would be $10,000 for an individual and $30,000 for a body corporate. We consider there are good reasons to justify a higher penalty for the offence in Recommendation 83 of failing to be registered.
11These offences (failing to be registered; breaching the duties of managers; and breaching the disclosure requirements) can only be committed by providers of funeral services in the course of providing that service. The purpose of these offences is to provide assurance to the public that people providing funeral services are likely to be trustworthy and maintain high standards of practice. The harm that is likely to result from this offending may be individual financial losses (for example, a failure to provide a statement of costs may result in a consumer paying for services he or she did not want or understand) or individual emotional costs (such as distress caused by mismanaging the custody of ashes or failing to keep adequate records). There may also be more general harm to the collective public interest by eroding the level of trust in the funeral industry.
12While these harms can be distressing for individuals, they are not significantly serious harms in the broader context. They are likely to be caused by a failure to maintain good business practices.
13In relation to culpability, we have recommended that failing to be registered should be a strict liability offence. That means that the prosecution does not need to prove that the person knowingly operated without being registered. While this may reduce the level of culpability in some cases, for the purposes of maximum penalties, we are examining the worst class of offending behaviour. That could be, for example, a person who deliberately avoided registration because they knew that they would not reach the standards required.
14We examined offences in analogous Acts of failing to be registered or licensed. We found a number of analogous offences, although there is considerable variation in their maximum penalties.
| Offences of failing to be registered or licensed | ||
|---|---|---|
| Act | Provision | Maximum penalty |
| Immigration Advisers Licensing Act 2007, s 63 | Providing immigration advice without being licensed | $100,000498 |
| Motor Vehicle Sales Act 2003, s 95 | Carrying on business of motor vehicle trading without being registered | $50,000 (individual) $200,000 (company) |
| Real Estate Agents Act 2008, s 141 | Carrying out real estate agency work without being licensed or exempt | $40,000 (individual) $100,000 (company) |
| Private Security Personnel and Private Investigators Act 2010, s 23 | Not holding a licence while being one of the people who must hold a licence | $40,000 (individual) $60,000 (body corporate) |
| Secondhand Dealers and Pawnbrokers Act 2004, s 6(6) | Carrying on business as a secondhand dealer without holding a licence | $20,000 |
| Auctioneers Act 2013, s 24 | Carrying on business as an auctioneer without being registered | $10,000 (individual) $30,000 (any other case) |
15We consider that the offence of failing to be registered as a funeral service provider is the key requirement of the proposed statutory regime for the funeral sector. This significance and the comparative level of maximum penalties found in similar statutes justify higher maximum penalties than we are suggesting for the other offences. We are suggesting that maximum fines of $40,000 for an individual and $60,000 for a body corporate would be appropriate. Of course, these penalties would be reserved for the most culpable offending producing the worst levels of harm.
16In contrast, the other category 1 offences of breaching a duty and breaching the disclosure requirements should not be strict liability. We found the following analogous offences:
| Offences analogous to the other category 1 offences | ||
|---|---|---|
| Act | Provision | Maximum penalty |
| Food Act 2014, s 240 | Breach of duty of operators of food businesses subject to national programme | $50,000 (individual) $200,000 (body corporate) |
| Motor Vehicle Sales Act 2003, s 116(d) | Failure to keep records of sale - infringement offence | $2,000 |
| Private Security Personnel and Private Investigators Act 2010, s 69 | Employing a repossession employee or crowd controller without keeping the prescribed records | $2,000 |
| Secondhand Dealers and Pawnbrokers Act 2004, s 37 | Failing to keep employee records | $10,000 |
| Auctioneers Act 2013, s 24(2) | Failing to comply with record-keeping obligations | $10,000 (individual) $30,000 (any other case) |
| Fair Trading Act 1986, s 40 | Failure to comply with a consumer information standard | $10,000 (individual) $30,000 (body corporate) |
17These analogous offences provide a wide variety of fines, which may reflect varying levels of harm. Within these other category 1 offences, there is also a wide range of levels of harm. However, at the most significant end of the spectrum, a breach of these other offences could result in financial loss or significant distress to consumers. Maximum penalties of $10,000 for individuals and $30,000 for bodies corporate appear to be appropriate.
18Similar to the offences above, category 2 offences (disposing of or embalming a body before the cause of death is determined and cremating a body other than in an approved cremator) would usually only be committed by funeral directors. However, they could be committed by members of the public if a funeral director was not engaged. These offences are most likely to be the result of poor business practices when committed by funeral directors and of ignorance of the law when committed by the family of a bereaved person. However, the worst class of offending against this requirement would be the person who deliberately disposes of the body prior to determining the cause of death so as to cover up their responsibility for the death.
19These offences may involve different levels of culpability and produce different levels of harm. The most serious offending could result in the concealing of responsibility for homicide. However, that level offending could be dealt with more appropriately under other criminal offences including section 150 of the Crimes Act. These category 2 offences, in contrast, are designed to capture less serious offending such as may result from poor business practices.
20We did not find analogous offences in other New Zealand statutes, although we note that currently:
21We consider that these existing penalties are out of date and should be brought into line with the other maximum penalties in this Report, namely $10,000 for an individual and $30,000 for a body corporate.
22The category 3 offences (removing a buried body without permission; burying a body other than in an approved cemetery; not treating a dead body with respect and failing to dispose of a body without undue delay) are all concerned with treating dead bodies with dignity. Similar to category 2 offences, the seriousness of this offending ranges from very significant criminal behaviour (surreptitiously disinterring a body from a cemetery for entertainment) to much lesser wrongful behaviour (for example, burying a body on private farmland without obtaining the necessary approvals). Again, the most significant offending could be prosecuted under section 150 of the Crimes Act. These offences, in contrast, are designed to capture lower-level offending that might not warrant a prison term, for example, burying a body on one’s own farmland without obtaining the necessary approvals or storing a body for so long that it becomes offensive.
23The harm captured by these offences may be emotional distress caused to the bereaved relatives of the deceased person or harm to the collective public interest in controlling the treatment of dead bodies.
25Given that very serious behaviour captured by these offences should be prosecuted under section 150 of the Crimes Act and that these lower-level offences are designed to target people who are merely ignoring their legal obligations or being negligent about them, we consider that these new offences should only carry lower-level penalties so as to encourage prosecutions of this type of behaviour. Maximum penalties of $10,000 for an individual and $30,000 for a body corporate would provide adequate accountability and denunciation.
26The category 4 offence (of exercising a power of a manager of a community cemetery for a purpose other than the management, administration or improvement of the cemetery) is specific to people who are managing community cemeteries (currently known as trustee cemeteries). These people are managing a cemetery for a community or public benefit. Community cemeteries are not private entities. Therefore, we have recommended in Appendix A that the new statute provides that community managers have a duty to exercise their management powers for the purpose of the management, administration or improvement of the cemetery. This makes it clear that managers of community cemeteries cannot use their position to their own advantage.
27The harm that might arise from this type of offending is financial loss to the cemetery or unspecified harm to the public interest through a person obtaining an unfair advantage. Most community cemeteries do not deal in large sums of money, so any financial loss may be relatively small in real terms but have a significant impact on the future viability of the cemetery.
