Administration of Community Sentences and Orders Bill (2011) Departmental Report

Transcription

1 Administration of Community Sentences and Orders Bill (2011) Departmental Report August 2012

2 Overview 1 The Bill was introduced to Parliament on 14 October 2011, received its first reading on 8 May 2012 and was referred to the Law and Order Select Committee. It amends the Bail Act 2000, the Sentencing Act 2002 and the Parole Act Each of the amendments has as its chief purpose the removal of barriers to the effective and efficient administration of community sentences and orders. Some of these embody minor policy changes, others are purely technical. The parties affected by the Bill are principally offenders in the community; Community Probation Services (i.e. probation officers); the courts (i.e. sentencing Judges and court Registrars); the Parole Board; and the Chief Executive of the Department of Corrections. 2 The Committee called for submissions with a closing date of 22 June 2012 and received submissions from the New Zealand Law Society; the Legislation Advisory Committee; the National Council of Women New Zealand; the Salvation Army; JustSpeak; and the Dunedin Community Law Centre. The Salvation Army also made an oral submission to the Committee. 3 The following report analyses submissions by topic, in the order in which they are addressed in the Bill, providing the Department s comments and recommendations. A tabular summary of the Department s recommendations can be found at pages 19 and 20 of the report and a tabular summary of the overall discussion thereafter. Analysis of submissions Effects of appeals on home detention (clauses 5-7 and clause 32 (inserted section 80ZGD)) Submissions 4 Most submissions did not address the proposal to require offenders to remain subject to home detention for the course of an appeal unless granted bail. The Salvation Army agreed that, if there is a risk to public safety, home detention should continue when an appeal is lodged. However, it submitted that caution is needed, pointing out that the determination of the risk to public safety cannot be made arbitrarily. Departmental comment 5 The decision whether to release an appellant on bail or require them to continue serving home detention will be made by a court, in accordance with relevant provisions of the Bail Act Courts will have information on the appellant s risk to the public, for example, from the pre-sentence report, and appellants will have the opportunity to challenge any submissions made by the Crown. D

3 Specification of procedure when sentence resumes 6 Clause 32 of the Bill inserts a number of provisions into the Sentencing Act 2002, including a new section 80ZGD dealing with the resumption of home detention where an appeal is unsuccessful and the appellant has been on bail. In these circumstances, it requires the offender to report to a probation officer within 72 hours of being notified of the outcome of the appeal, and provides that the sentence of home detention resumes when the offender has reported. 7 On further consideration, we have concluded that the draft provision does not adequately deal with the possibility that the home detention residence has become unavailable or unsuitable while the offender is on bail. Appeals can take a considerable time before they are determined, and therefore it is not unlikely that circumstances will have changed during that period. There could be significant risks if a probation officer directs an offender to resume serving a sentence at the originally approved address not realising, for example, that children have moved to that address. 8 We therefore propose that the court disposing of the appeal be required to stipulate the date on which the offender must report to a probation officer to resume serving the sentence, which must be at least 10 working days after the date of the decision. This will provide an opportunity for a probation officer to make enquiries about the ongoing suitability of the residence. Such enquiries should be mandatory if the offender has been on bail for more than two months. A probation officer could then either approve an alternative residence, or apply to the court for a variation or cancellation of the sentence. Bail should continue between the determination of an unsuccessful appeal and the date on which the sentence resumes. Technical issues 9 Clauses 5 and 6 of the Bill give effect to the proposal by replacing sections and 70 of the Bail Act However, section 15 of the Bail Amendment Act 2011, which received the Royal Assent on 17 October 2011, replaces Parts 3 and 4 of the Bail Act, including these provisions. It also repeals Schedule 1 of the Bail Act, which is amended by clause 7 of the Bill. Section 15 of the Bail Amendment Act comes into force in October 2013, or earlier by Order in Council. When this occurs, clauses 5-7 of the Bill would cease to have legislative effect. 10 Officials from the Department of Corrections, Ministry of Justice and Parliamentary Counsel Office have discussed how to ensure that this does not occur. The proposed solution is to replace clauses 5-7 of the Bill with substantively similar clauses amending section 15 of the Bail Amendment Act This means that the replacement clauses would come into force when section 15 of that Act is brought into force. D

4 11 This solution depends on the Bill being passed before section 15 of the Bail Amendment Act 2011 comes into force. If delays in the passage of the Bill prevent this, further amendments to the Bill would need to be drafted and included in a Supplementary Order Paper during the Committee of the Whole stage. Recommendation 12 The Department recommends that clause 32 be amended with respect to inserted section 80ZGD of the Sentencing Act The amended provision would require the court disposing of an unsuccessful appeal against home detention to stipulate a date, which must be at least 10 working days after the decision, when the offender must report to a probation officer. If the offender has been on bail for more than two months, a probation officer must, before the sentence resumes, review the suitability of the home detention residence and ensure that every relevant occupant consents and, if necessary, follow the procedure for approving an alternative address (section 80FA) or apply to the court to vary or cancel the sentence. The offender must report to a probation officer on the date stipulated by the court, or the next day that is not a weekend day or public holiday. 13 The Department recommends that clauses 5-7 be deleted and replaced by clauses with similar effect amending section 15 of the Bail Amendment Act (Parliamentary Counsel has drafted amendments giving effect to this recommendation, and included them in a Supplementary Order Paper that has been referred to the Committee.) 14 It may also be necessary to ensure that the Bail Act 2000 provides that bail can continue between the date of the determination of an unsuccessful appeal and the date on which home detention resumes. The Department also recommends any amendments that are required to achieve this. Preventing sentence incompatibility (clause 9) Submissions 15 Two submitters raised points about the proposal to give the court certain discretions, under new section 20A, in order to ensure compatibility between a non-custodial sentence being imposed and a non-custodial at the time being served. 16 The Salvation Army submitted that the purpose of the amendment and its intended effects are not easily understood. 17 The Legislation Advisory Committee expressed concerns that the court s having discretion to cancel and replace a current sentence with another sentence to ensure compatibility with the new sentence may result in disproportionate sentencing. It expressed particular concern about cases where the sentencing court does not know the full history of the D

5 18 The Legislation Advisory Committee submitted that these issues could be resolved by application of what is known as the totality principle. The Legislation Advisory Committee recommended that the court s discretion in imposing multiple non-custodial sentences be constrained by the totality principle, as it is (by section 85 of the Sentencing Act) in imposing multiple sentences of imprisonment. It submitted that this would prevent the court from substituting sentences, (to achieve compatibility with a new sentence) under new section 20A, which are disproportionate in their overall severity. Departmental comment 19 New section 20A of the Sentencing Act would require the court to do one of three things if it wishes to impose a non-custodial sentence ( second sentence ) that would otherwise be incompatible with a non-custodial sentence ( first sentence ) at the time being served by the offender. They are: 1. defer the commencement of the second sentence until the first one has been served; 2. cancel the first sentence; or 3. cancel the first and substitute any other sentence that could have been imposed in respect of that offence and is compatible with the second sentence. 20 We anticipate that the court would rely predominantly on the first two of these options and use the third, which is at issue in the Legislative Advisory Committee s submission, rather sparingly. There are two reasons for this. 21 A sentencing Judge may be reluctant to overturn decisions made previously by another sentencing Judge, as the third option would involve. Moreover, the option of substituting the cancelled sentence with a sentence of a different kind could be seen as involving added risk of successful appeal by the offender. We anticipate that the court would be especially unlikely to use the third option in the situation to which the Legislation Advisory Committee s concern relates; namely, where it is not assured that the information it has available about the original offence is sufficient to inform an appropriate substitution. 22 However, the third option is likely to be given consideration where a substantial portion of the first sentence remains to be served, and the second sentence the court intends to impose is more severe than the first. For instance, the court may wish to impose a sentence of home detention on an offender who is in the early stages of serving a sentence of community detention. It may be unwilling to cancel the sentence of D

6 1 However, deferring commencement of the second sentence of home detention until community detention has been completed may also be undesirable, both because it is more severe than the sentence of community detention preceding it and because the offender may have been deemed, in light of the new offence, to pose a risk to public safety. It is possible, therefore, that the court would decide to cancel the sentence of community detention and substitute a shorter sentence of home detention to be served cumulatively with the second sentence (of home detention). Although this would amount to one of the outcomes the Legislative Advisory Committee expressed reservations about, we think it could be appropriate in certain circumstances. 23 The Legislative Advisory Committee is correct in pointing out that application of the totality principle is only required by the Sentencing Act 2002, under section 85, when the court is considering sentences of imprisonment for more than one offence. Although this requirement only applies on a single sentencing occasion, the court also gives effect to the totality principle when imposing a second sentence of imprisonment for an offence related to an offence for which a sentence of imprisonment is already being served. It may also be appropriate for the court to observe the totality principle when imposing a second non-custodial sentence (as is this case in situations described in new section 20A) for a related offence as the Legislation Advisory Committee recommend. 24 However, for a number of reasons, we are not convinced that this should be a legislative requirement. This is because the Sentencing Act 2002 limits the court s ability to impose multiple non-custodial sentences in other ways. For instance, Section 80B(2) provides that the total term for multiple sentences of home detention cannot exceed 12 months. It is presumably because no such restriction applies to multiple sentences of imprisonment that application of the totality principle is required in those cases. It is also worth noting that multiple non-custodial sentences of certain types are imposed concurrently by default (i.e. unless the court directs that they be served cumulatively ). These provisions could be interpreted as giving implicit effect to the totality principle in respect of non-custodial sentences. Moreover, the principle generally seems to feature in the common law as having application beyond section 85 of the Sentencing Act Recommendation 25 The Department recommends no change to this amendment. 1 New section 20A would explicitly require the court, when canceling a sentence, to take into account the portion of that sentence that remains unserved. D

7 Pre-sentence reports for home detention and community detention (clauses 11 and 12) Submissions 26 The Salvation Army strongly supports the proposal to require the court to request and consider a pre-sentence report before sentencing an offender to home detention or community detention, noting that presentence reports need to be well-informed and detailed. 27 JustSpeak raised two issues about making it mandatory for a court to request a pre-sentence report before imposing a sentence of home detention or community detention. First, they were concerned that this requirement would impose a large administrative burden on probation officers, given that they are unlikely to be given additional resources. Secondly, they queried the need for the additional information, noting that judges already give careful consideration to the appropriateness of a sentence to a particular offender. Departmental Comment 28 When home detention and community detention were introduced as sentencing options in 2007, it was considered that the courts needed to have certain information to ensure the safety and effectiveness of these sentences. Section 26A of the Sentencing Act 2002 sets out the requirements for pre-sentence reports where a sentence of home detention or community detention is being considered by the court. Importantly, such reports must include information regarding the suitability of the proposed address, including the safety and welfare of the occupants, and the probation officer preparing the report must obtain the consent of adult occupants of the residence. 29 Despite these provisions, courts occasionally impose a sentence of home detention or community detention without requesting a presentence report. In such cases, there is an increased risk that the sentence imposed will compromise the safety of occupants, or be inappropriate for other reasons. Clause 12 of the Bill ensures that courts will have the information they need, by requiring them to direct the preparation of a pre-sentence report before imposing a sentence of home detention or community detention. 30 This proposal does not have resource implications, because probation officers already prepare pre-sentence reports in most cases where home detention or community detention is being considered. While judges do give careful consideration to the most appropriate sentence, such consideration needs to be adequately informed. The court is only likely to have the information it needs to pass a sentence of home detention or community detention if it has been provided with, and considered, a presentence report. D

8 Recommendation 26 The Department recommends no change to this amendment. Ensuring the integrity of community-based sentences (clauses 14, 16 and 22) Submissions 27 JustSpeak was worried that the effect of the proposal that time ceases to run on a community-based sentence when an application has been made to vary or cancel it because the offender is unable or fails to comply with its conditions is unclear. It could mean that an offender continues to be subject to restrictions while such an application is being determined, but the time is not credited to the sentence. This would be unjustifiable, particularly if it takes some time to deal with the application. On the other hand, they suggest that there would be other issues if the offender is not subject to any conditions while awaiting a decision to vary or cancel the sentence. 28 The Legislation Advisory Committee was also concerned that some offenders may continue to comply with the sentence and not receive credit. They suggested that the provision be reworded to clarify that the sentence ceases to run when the application is lodged, aligning with a similar provision dealing with appeals against community-based sentences (section 345(1) of the Criminal Procedure Act 2011). 29 The Law Society identified some practical difficulties with the provision. It is unclear who decides, and on what basis, that the offender has resumed serving the sentence in accordance with the conditions. Also, if the alleged non-compliance is disputed, the application to vary or cancel may be declined, but the offender will be punished with a longer sentence. The Society proposed amendments providing that the court, when determining the application, states the date on which the offender has resumed serving the sentence in accordance with all the conditions. This means that the court decides, retrospectively, whether the offender has been compliant for any or all of the period since the application. 30 The Salvation Army considered that sentences should only be stopped for full non-compliance, and that there should be proper investigation by probation officers before sentences are stopped or restarted. Departmental comment 31 Currently, where a probation officer applies for an order to vary or cancel a community-based sentence because of the offender s inability or failure to comply with any of the conditions, the sentence sometimes runs out before the court is able to consider the application. These clauses in the Bill are intended to prevent that from occurring, thereby improving the enforcement of sentences. The clauses need to be D

9 periods where the offender is not complying with any of the conditions are not counted as time served on the sentence periods of compliance with all of the conditions of the sentence, or in which the offender is in custody, are counted as time served. 32 What is less clear is how to count periods when the offender is complying with some, but not all, of the conditions of the sentence. It would be difficult to set out rules for this in legislation, so we think the best approach would be to leave this to courts to decide, based on the circumstances of each case. 33 On balance, we do not support the Legislation Advisory Committee s proposal to replace time ceases to run with sentence ceases to run. The latter wording implies that the sentence is effectively suspended, meaning that the offender has no obligations until the sentence resumes. That seems appropriate where there has been an appeal. It may not be appropriate in cases of non-compliance. In these situations it should be open to a court, or a probation officer, to direct the offender to comply with conditions even though time is not running on the sentence. 34 Our preference is for an approach based on the Law Society s proposal. Time would cease to run when a probation officer applies to vary or cancel that sentence. The court determining that application would be required to either confirm that time did not run for any of the period between the application and its determination, or stipulate the period or periods since the application during which time has been running on the sentence. This would enable the court to credit the offender for periods of compliance or remand in custody. An advantage of this approach, as noted by the Law Society, is that it may act as an incentive for an offender to voluntarily resume compliance. This message could be reinforced by the court. At an initial hearing, the court could direct the offender to resume serving the sentence in accordance with the current conditions, and advise the offender that, if they comply with the direction, this time will be credited to the sentence when the application is determined. Recommendation 35 The Department recommends that clauses 14, 16 and 22 be amended to provide that, when determining an application to vary or cancel a community-based sentence because of the offender s inability or failure to comply with conditions, the court must either confirm that time did not run on the sentence for any of the period between the application and its determination, or stipulate the period or periods since the application during which time has been running on the sentence. D

10 Length of community work sentences (clause 17) Submissions 36 Two submitters have raised concerns about sentences of community work which do not have direct relevance to the proposal to prevent sentences imposed concurrently from exceeding 400 hours. 37 The National Council of Women of New Zealand and the Dunedin Community Law Centre shared the concern that offenders in certain areas may have difficulty serving sentences of community work due to a general unavailability of work. The Dunedin Community Law Centre mentioned a 2008 Otago Daily Times story of an offender who was unable to find sufficient work placement on a community work sentence. 38 The Dunedin Community Law Centre also suggested that better support be available to offenders with mental health and addiction issues in complying with sentences of community work. Departmental comment 39 We understand that there have historically been difficulties placing offenders in community work in some of the more remote regions of the country. However, this has not been the case recently. Under the reforms of the Community Probation Service Change Programme, an offender must be placed in work within 10 days of the sentence commencing is a mandatory standard for probation officers. 40 Offenders with mental health or addiction issues can be referred to treatment providers and usually will be referred in cases where acute or urgent treatment is required. If an offender is unable to comply with a sentence of community work due to mental health or addiction issues, a probation officer typically recommends to the court that the sentence of community work be replaced with a sentence that is more appropriate to their rehabilitative needs. Recommendation 41 The Department recommends no change to this amendment. Aligning electronic monitoring conditions with electronic boundaries (clauses 20, 26 & 36) Submissions 42 Two submitters expressed concerns relating to the proposal to require offenders to remain within an area defined by the probation officer. 43 The Dunedin Community Law Centre submitted that, by also advising other occupants of the residence of the defined area, probation officers may unintentionally impose an obligation on them to ensure that the D

11 44 The Salvation Army expressed general support for the amendment, but emphasised the need for detainees to serve their sentences in communities where they have social networks and supports available to them. Departmental comment 45 An offender cannot serve a sentence of home detention or community detention at a residence without the informed consent of other occupants. The consent of other occupants would not be fully informed unless they were made aware of the electronic boundary, as this may have practical implications for them (for instance, if the electronic boundary does not enable the detainee access to the letterbox or clothesline). We therefore consider the requirement to be appropriate. Other occupants would not be placed under any formal obligation, by their being so advised, to ensure the detainee s compliance with electronic monitoring conditions. 46 It is typically the offender who proposes the residence that a probation officer recommends in a pre-sentence report. Such matters as the proximity of family members and social supports are routinely considered as they have implications for the overall suitability of the residence. Recommendation 47 The Department recommends no change to this amendment. Commencement of community-based sentences (clause 24 consequential to clause 9) Submissions 48 No submitters expressed views on the provision for commencement of community-based sentences that are deferred by the court to achieve compatibility under new section 20A. Departmental comment 49 None. Recommendations 50 The Department recommends a technical amendment to section 75(2) of the Sentencing Act 2002 clarifying that subsection (1) is subject to subsection (2A) and new subsection (3). D

12 51 The Department recommends, as a minor technical amendment to inserted section 75(3)(b), replacing the words imposed under with another expression such as imposed in respect of. Ensuring the integrity of home detention sentences (clause 31) Submissions 52 No submitters expressed views on the proposal that time only ceases to run on a sentence of home detention (as on a community-based sentence under clauses 14, 16 and 22) when an application has been made to vary or cancel it because the offender is unable or fails to comply with its conditions Departmental comment 53 If the Committee accepts the Department s recommendation regarding the provisions for time ceasing to run on community-based sentences (clauses 14, 16 and 22) it seems appropriate that the equivalent provision for home detention, as amended by clause 31, be reworded on similar lines. Recommendation 54 The Department recommends that clause 31 be amended to provide that, when determining an application to vary or cancel a sentence of home detention because of the offender s inability or failure to comply with detention conditions, the court must either confirm that time did not run on the sentence for any of the period between the application and its determination, or stipulate the period or periods since the application during which time has been running on the sentence. Effect of a subsequent prison sentence on home detention (clause 32 (inserted sections 80ZG-80ZGC)) Submission 55 Two submitters expressed concerns about the proposal to allow the court to order that a sentence of home detention resume after a short sentence of imprisonment has been served and to adjust detention or post-detention conditions on resumption of home detention. 56 The Salvation Army submitted that the purpose of the amendment and its intended effects are not easily understood. 57 The Legislation Advisory Committee s concerns about disproportionate sentencing under new section 20A (clause 9 of the Bill) were reiterated in respect of this amendment. It submitted that the court s discretion to impose additional conditions or vary existing conditions, under replaced section 80ZG(3), may result in requirements of the offender that are D

13 Departmental comment 58 Clause 32 of the Bill seeks to align sentences of home detention with current section 78 of the Sentencing Act 2002, which specifies the effect a short sentence of imprisonment may have on a community-based sentence. 2 Section 78(3) currently gives the court the discretion at issue in the Legislation Advisory Committee s submission where a communitybased sentence is ordered to resume on completion of a short sentence of imprisonment. It allows the court, in these cases, to adjust any conditions or impose additional conditions on the community-based sentence, effective when it resumes. 59 We understand the intent of section 78, and the provision proposed by the Bill under replaced section 80ZG(3), as to enable the court to adjust conditions to reflect the fact that they will be interrupted by the short sentence of imprisonment. For instance, an offender s participation in a rehabilitative programme, as a condition of intensive supervision or of home detention, might be so interrupted. In this case, the court may see fit to cancel the condition and substitute another, which would commence when the suspended sentence resumes. (It does seem possible that these provisions could also serve the purpose the Legislation Advisory Committee have inferred; namely, of enabling the court to simulate the effect that would otherwise have been achieved by imposing release conditions. However, the court need not give effect to release conditions in this way. It reserves the ability, if it sees fit, to refrain from ordering that the sentence of home detention resume on release from prison and impose release conditions instead, though such conditions cannot include electronic monitoring.) 60 Clause 32 of the Bill would also grant the court this discretion in respect of post-detention conditions, which are only effective on completion of a sentence of home detention. Post-detention conditions are generally imposed in order to keep offenders under the Department s supervision and allow them opportunities to address the causes of their offending after a sentence of home detention has been served. In some cases, the court may consider it appropriate, in light of the new offence (for which imprisonment is being imposed), to vary post-detention conditions or impose new ones to ensure such supervision and opportunities are 2 Note that home detention is not legislatively defined as a community-based sentence. D

14 available to the offender. 3 However, proposed subsection 80ZG(4) would prohibit the court from imposing new post-detention conditions if none were originally imposed on the sentence of home detention (as can only be the case for sentences of home detention of less than six months). This suggests to the court that its discretion to adjust conditions is intended to be exercised with some restraint, in keeping with the overall purpose of the existing conditions. 61 Because detention and post-detention conditions are generally not punitive, it is not clear to us that anything would be gained by requiring the court to apply the totality principle in its discretion to adjust them as it sees fit. (Moreover, the principle would only have relevance to the sentences if they were imposed for related offences.) We expect that the general purpose of this provision would be clear to the court. Minor drafting issue 62 The phrasing between new sections 80ZG(1)(b) and 80ZGA(1)(b) are inconsistent in respect of sentences of imprisonment to be served concurrently. The former applies in cases where the offender is sentenced to 2 or more terms of imprisonment to be served concurrently, each term of which is not more than 12 months and the latter in cases where the offender is sentenced to 2 or more terms of imprisonment to be served concurrently, the total term of which is not more than 12 months. Although their effect is the same, the difference in phrasing may lead to confusion. It is therefore recommended that the words the total term of which in new section 80ZGA(1)(b) be replaced with the words each term of which to align with new section 80ZG(1)(b). Recommendation 63 It is recommended that the words the total term of which in new section 80ZGA(1)(b) of the Sentencing Act 2002 be replaced with the words each term of which to align with new section 80ZG(1)(b). Reports on the suitability of residential restrictions (clause 40) Submissions 64 Two submissions were made with some relevance to the proposal to make these reports the responsibility of the Chief Executive (rather than a probation officer) and enable them to be provided in anticipation of a request from the Parole Board. 3 It is also conceivable, in other cases, that the court may see the existing post-detention conditions as unnecessary and wish to remit them if the resuming sentence of home detention is considered sufficient in this respect. D

15 65 The National Council of Women of New Zealand emphasises the importance of ensuring the Parole Board decision to impose residential restrictions takes the offender s participation in treatment and rehabilitative programmes into account. It also submitted that the implications of residential restrictions for members of an offender s family and the risk of domestic violence should routinely be considered. For instance, it expressed the concern that victims of domestic violence might be reluctant to report the abuse because it is likely to result in the offender s recall to prison. 66 The Salvation Army is of the view that reports on the suitability of residential restrictions provided to the Parole Board should be comprehensive and made available to anyone affected by the subsequent decision. Departmental comment 67 In its comprehensive pre-release reports to the Parole Board, the Department does provide information about the offender s participation in treatment or programmes in custody. It also provides information about the suitability of residential restrictions that includes a thorough assessment of the offender s risk of harm to other residents. Moreover, residential restrictions cannot be imposed without the fully informed consent of all adults residing at the proposed address. 68 Both pre-release reports and the sections in them that deal with the suitability of residential restrictions contain information that can be sensitive. Release of this information to all affected parties could compromise the privacy of other individuals mentioned in reports. For instance, occupants the offender has proposed to reside with should be entitled to give or withhold their consent to the sentence being served at their address in confidence. Moreover, details of the offender s victims can be mentioned in these reports (for example, their location and travelling habits are brought to bear on the suitability of a proposed residence) and should remain private. It is likely, in some cases, that certain parties have a legitimate reason for seeking these details, within limits. Disclosure in these cases should be decided with reference to the Official Information Act and the Privacy Act We do not believe that a general rule about treatment of this information would be appropriate. Recommendation 69 The Department recommends no change to this amendment. Consequential amendments to the Summary Proceedings Act (clause 48) Submissions 70 None. D

16 Departmental comment 71 Section 106E(9) of the Summary Proceedings Act 1957, as substituted by the Summary Proceedings Amendment Act 2011, refers to combinations of sentences. It should therefore reference 20A of the Sentencing Act, which would be inserted by clause 9 of the Bill. Recommendation 72 The Department recommends that section 106E(9) of the Summary Proceedings Act be consequentially amended by including a reference to section 20A of the Sentencing Act, in addition to the existing reference to section 19 of the Sentencing Act. Other points raised by submitters Submissions 73 The Dunedin Community Law Centre submitted that more can be done to train probation officers in keeping families safe, especially in light of initiatives to address family violence. They noted in this context that, under the Crimes Amendment Act 2011, failure to protect a child or vulnerable adult from serious violent or sexual offending is itself a serious offence. 74 The National Council of Women made several points about orders applying to released prisoners: offenders should receive ongoing support and mentoring special release conditions should include residential restrictions, consorting restrictions and curfew hours paroled offenders should be subject to frequent monitoring for compliance and misdemeanours the local community should be listened to so that the community s safety and security are ensured the Parole Board should be granted more funding to effectively monitor re-offending. 75 The Legislation Advisory Committee noted that it would be appropriate, if it has not been done already, to consult the Chief District Court Judge on the Bill. 76 The Salvation Army expressed the view that more funding should be available for rehabilitative and reintegrative initiatives and that these services should be better targeted. It also commented that the volume of justice-related Bills makes it difficult for charities and small organisations to participate effectively in the public consultation/submission process. D

17 Departmental comment 77 Minimising the risk an offender poses to others (particularly to family members) is fundamental to the purpose of community probation service, especially for probation officers supervising electronically monitored sentences and orders. Probation officers constantly assess and review this risk and try to involve family members in the planning process. We note, though, in relation to the Dunedin Community Law Centre submission, that the offence of failure to protect a child or vulnerable adult may not apply to probation officers, as it is targeted at residents in the same household as the victim or staff members of an institution in which the victim resides. 78 The points raised by the National Council of Women regarding the release of prisoners into the community are, in general, consistent with current law and practice. 79 Victims have opportunities to make submissions to the Parole Board regarding the release of offenders. Telling a local community about the presence of a person who has been released from prison may have negative consequences for that person, their family and friends. It can also make rehabilitation and reintegration more difficult. However, in some cases, sharing information is in everyone s best interests. For example, where a prisoner has a significant history of violent or sexual offending, the Police and the Department may notify immediate neighbours and agencies such as schools and the Mayoral Office that the person is being released and provide information and guidance. 80 Probation officers are primarily responsible for supervising released prisoners. Section 29B of the Parole Act 2002 allows the Parole Board, under special circumstances, to monitor the offender s compliance with conditions of release. This is resourced from the Parole Board s baseline funding. 81 We can confirm, in response to the point raised by the Legislation Advisory Committee, that the Chief District Court Judge was consulted on the policy content of the Bill. 82 In relation to the Salvation Army s comment, we can advise that the Department has developed a comprehensive package of interventions that will make a clear contribution to reduced rates of re-offending by its target of 25 percent by This includes developing new and innovative approaches to reduce re-offending while strengthening and expanding services with proven results. Our action plan will evolve over the next five years as we respond to changing needs of offenders. The interventions that make up our current plan include: expanding alcohol and drug treatment for offenders in the prison and the community D

18 expanding rehabilitation programmes that are proven to reduce reoffending enhancing rehabilitation services provided directly by probation officers for offenders on community sentences delivering rehabilitation in partnership with iwi and community groups and contracting for results implementing working prisons and increase prisoners participation in education and employment working with employers and industry to provide real jobs for offenders after release from prison partnering with iwi and communities to establish reintegration centres that support offenders social and accommodation needs. 83 Efficiency savings of $65 million identified through the Corrections Expenditure Review will be re-prioritised over the next four years towards these interventions to reduce re-offending by 25 percent by Proposed new clause alternative residence pending determination of an application to vary a residential restriction 84 Ministerial approval has been obtained for an additional amendment to the Parole Act 2002 which is required for technical reasons. The Parole Board has also been consulted on this proposal. Background 85 Under the Parole Act 2002, the New Zealand Parole Board may impose residential restrictions on an offender as a special condition of release from prison on parole. The Parole Board may also impose residential restrictions on child sex offenders, effective at the end of their prison sentence, as a special condition of an extended supervision order. 4 In both cases, the condition requires the offender to reside, either full time or at specified times, at a specified residence for the term of the condition. 86 In some cases, a specified residence becomes unsuitable during the course of the restriction for reasons that require the offender to move immediately (for example, where the offender has been evicted or their living situation has become unsafe). This does not typically mean the offender has breached the condition, but rather that they are unable to comply with it. The Parole Act has been interpreted as requiring residential restrictions to be varied by the Parole Board if the offender is 4 Of the 227 child sex offenders currently subject to an extended supervision order, 24 are also subject to residential restrictions. D

19 to be subject to the restrictions at a different residence 5. The offender s probation officer therefore has to make an application to that effect, accompanied by a report on the suitability of an alternative residence. Although nearly all such applications are approved by the Parole Board, this usually takes at least a few days, sometimes several weeks. Discussion 87 Under current provisions, offenders cannot legally be subject to residential restrictions at a different residence, pending the Parole Board decision. This leaves probation officers with very few options for managing the offender in the interim. 88 In the case of parolees, the probation officer s only legal recourse is to have the offender recalled to prison. The unavailability of a residence is grounds to recall a parolee to prison. However, it is less than ideal to recall a parolee who, through no fault of their own, is unable to comply with the condition when another suitable residence is available. Recalling parolees is generally an action of last resort, as it incurs the additional costs of imprisonment and may also be injurious to their reintegration into the community. 89 In the case of child sex offenders who are subject to an extended supervision order, on the other hand, probation officers do not even have this option. These offenders cannot be imprisoned unless they have breached a condition or committed another offence. This means the offender will not legally be subject to the residential restriction pending consideration by the Board, and breaches will not be enforceable in that time. These offenders are, therefore, effectively at large in the community (albeit, subject to the other conditions of the extended supervision order). Proposed solution 90 Sections 69K and 80H of the Sentencing Act 2002 give probation officers the authority to approve an alternative residence for offenders serving sentences of home detention and community detention, provided an application to the court to have the sentence specify a different residence is made within 5 working days. 91 The Department proposes a similar provision for the Parole Act 2002, empowering the Chief Executive to approve an alternative residence for offenders subject to residential restrictions, provided an application to the Parole Board to have the condition specify a different residence is made within 5 working days. 6 5 Under section 33 of the Parole Act, residential restrictions are effective at the residence that has been specified by the Parole Board. Moreover, the Act requires the Parole Board to be satisfied on reasonable grounds that the specified residence is suitable for the purpose of the condition. 6 This function would, in practice, be delegated to and performed by probation officers. D

20 92 This would ensure that offenders whose residence is no longer available or suitable can, with the probation officer s approval, remain subject to the restrictions at an alternative residence pending Parole Board approval of the change. Offenders subject to parole or an extended supervision order could therefore be breached if they do not comply with the direction to reside at the alternative residence approved by the probation officer in the interim, and the probation officer would still have the option of recalling a parolee to prison if they are not satisfied that there is another suitable residence available. 93 It will be noted that the Supplementary Order Paper to the Bill, which was referred to the Committee on 13 August, proposes to amend the sections of the Sentencing Act 2002 this proposed amendment is based on. Sections 69K and 80H are amended by the Supplementary Order Paper to empower probation officers to approve changes in residence without reference to the court. However, we are satisfied that aligning the Parole Act with these sections, as they currently stand, would give the Chief Executive sufficient legal authority to ensure offenders remain subject to residential restrictions as appropriate. It is considered appropriate that the Parole Board retain the responsibility for giving final approval to changes of address. Summary of recommendations 26 On analysis of submissions provided to the Select Committee, we recommend amendments to the following clauses of the Bill: Clause Clauses 5-7 Clauses 14, 16 and 22 Recommendation The Department recommends that clauses 5-7 be deleted and replaced by clauses with similar effect amending section 15 of the Bail Amendment Act (Parliamentary Counsel has drafted amendments giving effect to this recommendation, and included them in a Supplementary Order Paper that has been referred to the Committee.) The Department recommends any amendments that are necessary to provide that bail can continue between the date of the determination of an unsuccessful appeal against home detention and the date on which that sentence resumes. The Department recommends that clauses 14, 16 and 22 be amended to provide that, when determining an application to vary or cancel a community-based sentence because of the offender s inability or failure to comply with conditions, the court must either confirm that time did not run on the sentence for any of the period between the application and its determination, or stipulate the period or periods since the application during which time has been running on the sentence. D

21 Clause 24 Clause 31 Clause 32 Clause 48 New Clause The Department recommends a technical amendment to section 75(2) of the Sentencing Act 2002 clarifying that subsection (1) is subject to subsection (2A) and new subsection (3). The Department recommends, as a minor technical amendment to inserted section 75(3)(b), replacing the words imposed under with another expression such as imposed in respect of. The Department recommends that clause 31 be amended to provide that, when determining an application to vary or cancel a sentence of home detention because of the offender s inability or failure to comply with detention conditions, the court must either confirm that time did not run on the sentence for any of the period between the application and its determination, or stipulate the period or periods since the application during which time has been running on the sentence. The Department recommends that the words the total term of which in new section 80ZGA(1)(b) of the Sentencing Act 2002 be replaced with the words each term of which to align with new section 80ZG(1)(b). The Department recommends that clause 32 be amended with respect to inserted section 80ZGD of the Sentencing Act The amended provision would require the court disposing of an unsuccessful appeal against home detention to stipulate a date, which must be at least 10 working days after the decision, when the offender must report to a probation officer. If the offender has been on bail for more than two months, a probation officer must, before the sentence resumes, review the suitability of the home detention residence and ensure that every relevant occupant consents and, if necessary, follow the procedure for approving an alternative address (section 80FA) or apply to the court to vary or cancel the sentence. The offender must report to a probation officer on the date stipulated by the court, or the next day that is not a weekend day or public holiday. The Department recommends that section 106E(9) of the Summary Proceedings Act 1957 be consequentially amended by including a reference to section 20A of the Sentencing Act 2002, in addition to the existing reference to section 19 of the Sentencing Act. The Department recommends that the Parole Act 2002 be amended to empower the Chief Executive to approve an alternative residence for offenders subject to residential restrictions, provided an application to the Parole Board to vary the condition is made within five working days. D

22 Tabular summary of submissions and departmental comment POLICY CHANGES Act Amended Subject & clause Submitter(s) Submission Departmental comment and recommendations Bail Act 2000 Effects of appeals on home detention Clauses 5-7 & 32 Salvation Army Agreed that offenders should remain subject to home detention on appeal if they pose a risk to public safety, but emphasised the need for principled assessments of these risks. Bail decisions will be made by courts. Change recommended: that clause 32 be amended to require the court dismissing an appeal against home detention to stipulate a date, at least 10 working days from the decision, on which the sentence resumes. The offender must report to a probation officer on the date stipulated by the court, or the next day that is not a weekend day or public holiday. If the period of appeal is greater than 2 months, a probation officer must review the suitability of the residence before the sentence resumes. Technical changes recommended: that the legislative target of clauses 5-7 in the Bill be changed to ensure that the clauses have ongoing effect. These have been included in a Supplementary Order Paper. Sentencing Act 2002 Preventing sentence incompatibility Legislation Advisory Committee Expressed concern that the court may exercise this discretion to cancel the current sentence and substitute a more The court is unlikely to make substitutions where they can be avoided. A disproportionate substitution would D