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Paper 6: Community Based Sentences

Proposal

1 This paper seeks Cabinet's:

• agreement in principle to a proposed sentence structure and hierarchy, which includes the addition of two new community-based sentences: electronically- monitored curfew, and intensive supervision;
• agreement to undertake further work on potential enhancements to community work and penalties for disqualification from driving; and
• authorisation to undertake further consultation with the judiciary on the proposals in this paper, before Cabinet makes final decisions on a package for reform of community-based sentences.

Executive summary

2 Strong and credible community-based sentences, combining elements of punishment, rehabilitation and reparation, are critical to an overall strategy to reduce the prison population. The effectiveness of proposals included in this suite of papers (in particular, the proposal in Paper Seven to establish home detention as a sentence) depends on the availability of credible community-based sentences. Recent consultation with the judiciary has identified judicial concern about existing community-based sanctions.

3 Officials propose a clear hierarchy of sentences, based on the degree of restriction on liberty and supervision contained within each sentence. Imprisonment is clearly the most severe sentence available. The proposed sentence of home detention is next in the hierarchy, and is the last alternative before imprisonment. A new tier of community-based sentences is proposed, with two new sentences: electronically-monitored curfew, and intensive supervision. The current community-based sentences, community work and supervision, follow on the next tier. The bottom tiers of the hierarchy include monetary penalties and alternative disposition options such as conviction and discharge. Community work is available as an option alongside any other community-based sentence, as well as the proposed home detention sentence. There is a greater emphasis at each stage of the hierarchy on the development of offenders' work-related and living skills where required (e.g. literacy and numeracy, budgeting, and parenting).

4 In addition to establishing a clear hierarchy for community-based sentences, there is a range of possible enhancements that could be made to the two current community-based sentences. These enhancements, in conjunction with the proposed sentencing structure, would respond to the concerns that have been raised by the judiciary in recent consultation with them and address issues that are known to officials.

5 The effectiveness of any of the proposals in this paper depends largely upon the judicial response to the proposals once implemented. It is therefore critical that the final options for reform be informed by further consultation with the judiciary. It is recommended that before Cabinet makes final decisions on a package to reform community-based sentences, further consultation takes place with the judiciary on the extent to which these proposals meet their concerns. The Ministry of Justice and Department of Corrections will report back to the Cabinet Policy Committee by s.9(2)(f)(iv) on a final package for reform of community-based sentences. s.9(2)(f)(iv)

Background

Community-based sentences and the prison population

6 Strong and credible community-based sentences, combining elements of punishment, rehabilitation and reparation, are critical to an overall strategy to reduce the prison population. Such sentences can hold offenders accountable for their offending, provide rehabilitative opportunities, enable offenders to make reparation to the community, and slow or halt an offender's progression up the sentencing hierarchy to imprisonment. Without strong and credible community-based sentences, there is a risk that imprisonment becomes the default option when a community-based alternative may have otherwise been warranted. Such an approach carries financial, social, and economic costs.

7 The effectiveness of proposals included in this suite of papers depends on the availability of credible community-based sentences. There is potential to move offenders who would otherwise serve short sentences of imprisonment towards sentences that can be served in the community. However, there is also a risk that judges will prefer to use the proposed home detention sentence (see Paper Seven) rather than continue to use existing community-based sentences. Such an approach would move offenders more quickly up the sentencing hierarchy towards imprisonment and put unwarranted pressure on the home detention sentence.

8 As part of Law Commission consultation on reforms to the sentencing and parole structure (see Paper Eight), the judiciary raised a number of concerns about community-based sentences. These concerns indicate a general lack of judicial confidence in existing community-based sanctions and include a call for a greater array of sanctions and improvements to current sanctions.

Existing community-based sentences

9 The Sentencing Act 2002 reformed community-based sentences by replacing the sentences of supervision, community programme, community service, and periodic detention (PD) with two more clearly defined sentences of supervision and community work. These two sentences are clearly distinguished from each other in terms of their sentencing purposes and the requirements placed on offenders. The reforms aimed to provide additional guidance about when and how each sentence should be used, increase the ability of community-based sentences to address offending, and put greater emphasis on reparation to the community and on offenders learning work habits and skills.

10 Community work combines aspects of PD and community service and is a reparative sentence aimed at compensating the community. An offender can be sentenced to up to 400 hours community work to be completed within two years at either a community work centre run by the Community Probation Service (CPS) or a placement at a community agency (e.g. Rotary Clubs). In 2005, there were 27,529 new sentences of community work, with approximately 2.2 million hours of work completed. Around 30 to 40 percent of offenders on community work are placed with community agencies.

11 Supervision combines aspects of supervision and community programme. It is a rehabilitative and re-integrative sentence for offenders at risk of re-offending and for whom supervision and monitoring would be likely to reduce that risk. Offenders on supervision are under the supervision of a probation officer for the duration of their sentence (between six months and two years). Offenders are required to comply with nine standard conditions (including regular reporting and restrictions on who an offender may associate with). Offenders may also be subject to special conditions, including participation in a rehabilitative or re-integrative programme. In 2005, there were 5,596 new sentences of supervision.

12 The Sentencing Act 2002 made a range of reforms to other alternatives to the use of imprisonment. These reforms included the abolition of suspended sentences of imprisonment. Other alternative options were carried over from the Criminal Justice Act 1985, for example, the order to come up for sentence if called upon.

Comment

Proposed sentencing structure

13 Appendix A illustrates current sentence options by severity. A sentence of imprisonment (served either in prison or on home detention) is the most severe option. Community work and supervision are the current community-based sentences. Neither is more "severe" than the other. Each sentence has a clearly defined purpose in legislation and judges are required to select the sentence (or combination of sentences) that best meets the needs of the offender and the community. Other disposition options, such as monetary penalties and other alternative options, are at the bottom of the hierarchy.

14 The pre-2002 menu of community-based sentences had a clear hierarchy, in which PD was specifically identified as the highest tariff community-based sentence and the "last resort" before a sentence of imprisonment was imposed. Merging the previous four community-based sentences into two, without clearly identifying a hierarchy between them, may have led to a perception of there being fewer community-based options available, with no sentence clearly identified as the last resort before prison. There is also a perception that there is no longer a community-based option that has punishment or restriction of freedom as an explicit purpose.

15 Officials consider that :

• there needs to be a greater range of options for community-based sentences;
• there needs to be a clear hierarchy among community-based sentences, so that it is easy to distinguish between more and less severe sentences;
• there must be a clear rationale for the suite of community-based sentences; one that underpins the relationships between community-based sentences themselves and the relationships between them and other sentences;
• the purpose of each community-based sentence needs to be clarified, in particular, to emphasise elements of punishment and accountability to the community, as well as the current purposes of rehabilitation, re-integration, and reparation; and
• there needs to be greater feedback to the judiciary about the use of community-based sentences (other than formal enforcement action through the courts which indicates a "failure").

16 Appendix B illustrates a proposed sentence structure and hierarchy, based on the degree of restriction on liberty and supervision contained within each sentence. Key components of the proposed sentence hierarchy are as follows:

• Imprisonment is clearly the most severe sentence available.
• The proposed sentence of home detention is next in the hierarchy, and is the last alternative before imprisonment.
• There are two distinct tiers in the hierarchy for community-based sentences, reflecting different levels of severity and intensity.
• A new tier of community-based sentences is proposed, with two new sentences: electronically-monitored curfew, and intensive supervision.
• The current community-based sentences, community work and supervision, follow on the next tier. Possible enhancements to these sentences are discussed in paragraphs 22 to 35.
• Community work is available as an option alongside any other community-based sentence, as well as the proposed home detention sentence.
• The level of engagement, monitoring and supervision of an offender increases as the offender moves up the hierarchy. Additional conditions to those currently available will also be available, for example, judicial supervision of home detention and intensive supervision.
• There is a greater emphasis at each stage of the hierarchy on the development of offenders' work-related and living skills where required (e.g. literacy and numeracy, budgeting, and parenting).

New sentences

Home detention (Paper Seven)

17 Paper Seven proposes that home detention be established as a separate sentence, rather than remain a way of serving a sentence of imprisonment as it is currently. It is proposed that the new home detention sentence be fixed within the sentence hierarchy between community-based sentences and imprisonment. Although served in the community, home detention will not technically be a community-based sentence. Home detention is intended for offenders who, if home detention were not available, would be imprisoned (rather than receive a community-based sentence). It will be possible to impose fines or community work in conjunction with home detention. It is estimated that home detention as a sentence could avoid around 310 prison beds.

Electronically-monitored curfew

18 It is proposed that an electronically-monitored curfew be established as a stand-alone sentence, available with all other community-based sentences. The availability of a community-based sentence with an electronic monitoring component is important to prevent net-widening to the new home detention sentence from community-based sentences. This sentence would be particularly suitable for those offenders whose offending is related to specific times of the day or has specific patterns (e.g. property and some driving offenders). Curfews imposed as part of this sentence would have a maximum length (e.g. 60 to 80 hours per week). Further work is required on ways to limit the use of the new sentence to avoid net-widening from lower tariff sanctions.

Intensive supervision

19 It is proposed that a new sentence of intensive supervision be established for offenders requiring a larger and more complex set of special conditions than would typically be appropriate for an offender sentenced to the current supervision sentence. Further work is required on the distinction between the proposed sentence and current supervision (in particular, the type of conditions that can be imposed for each sentence), and ways to ensure intensive supervision is only imposed where necessary. A key component of intensive supervision will be the ability for judicial supervision of the offender's progress on the sentence, as described below. There will also be a greater level of support and co-ordination from a probation officer than is currently available for offenders on supervision.

Other elements of the proposed structure

20 Judicial supervision : It is proposed that judges be provided with the explicit ability to play an ongoing role in monitoring an offender's progress while subject to either home detention or intensive supervision. This new process will initially be a paper-based exercise (e.g. quarterly progress reports to the sentencing judge), with the ability for the judge to direct the offender to attend a hearing to review the offender's progress and consider any variation to the sentence.

21 Basic work-related skills : Many offenders on community-based sentences have deficiencies in basic skills - for example, reading and writing, remedial/defensive driving skills, and core work habits. It is proposed that greater emphasis be placed at each point of the sentence hierarchy on the development of these skills where required. Further work is required to identify the most appropriate mechanism for how this could occur. Options include either a new type of court order or as part of a sentence of supervision.

Current community-based sentences: potential enhancements

22 In addition to establishing a clear hierarchy for community-based sentences, there is a range of possible enhancements that could be made to the two current community-based sentences. These enhancements would respond to concerns that have been raised by the judiciary during recent consultation, as well as address issues that are known to officials.

23 Recent consultation has identified that judicial confidence in community work varies across the country. This lack of confidence may partly be a carry-over of dissatisfaction with the previous community service sentence, and it may also reflect general disagreement with the core components of the new sentence as established in 2002. Key judicial concerns are that judges do not know what the offender will actually be required to do while serving the sentence or how the community work hours will be completed. Judges have also expressed concerns that the sentence may not commence immediately and that there are perceived delays in the arrangement of community work. This time lag may reflect the time required for the offender to be appropriately assessed and for suitable work to be arranged.

24 There is widespread judicial concern about some aspects of the sentence of supervision. Key concerns include the lack of recommendations made by CPS for supervision to be imposed, and the unavailability of programmes that are required to make supervision effective.

Community work

25 Options to enhance community work are discussed in paragraphs 26 to 32.

26 Increase availability of community work projects: The Department of Corrections believes that CPS is currently at, or near, capacity in terms of its ability to deliver community work. Increasing capacity is restrained by the Department's ability to recruit and retain appropriate staff to manage work parties and the identification of appropriate projects for work parties to undertake. These issues need to be addressed before any significant attempt is made to increase the number of offenders sentenced to community work.

27 There is a range of possible options to strengthen the availability and capacity of agency placements. For example, community agencies currently do not receive any payment for supervision of offenders on the principle that agencies are instead receiving labour. It may be appropriate to pay the actual cost incurred by agencies in supervising offenders on community work.

28 Strengthen credibility of agency placements: Agency placements in the community are the preferred option for many offenders. Community placements prevent contamination from mixing with other offenders, maximise pro-social modelling opportunities, encourage active participation in the community, and make best use of offenders' skills. The credibility of agency placements could be strengthened by increased feedback to the judiciary about the use of community placements and strengthening accountability arrangements and relationships between the Department of Corrections and community agencies.

29 Combination of sentences : Currently, community work can be imposed with a sentence of reparation but not with a fine. This differs from the previous law, which allowed community service or PD to be combined with a fine. The change from the previous law was made for a number of reasons, for example, so as not to undermine the strengthened presumption in favour of fines, particularly as an alternative to a community-based sentence. However, combining a sentence of community work with a fine would provide additional flexibility for judges, particularly where an offender has the ability to pay part, but not all, of a fine.

30 Review current policies and procedures : Following the recent judicial consultation exercise, officials have begun an ongoing dialogue with the judiciary about ways to directly address the concerns they have raised. In response to discussions with the Chief District Court Judge, the Department of Corrections is preparing to trial an approach under which the type of community work undertaken directly relates to the nature of the offending. For example, offenders convicted of vandalism offences could spend some of their community work hours clearing up vandalism caused by themselves or others. This trial builds on an approach that is already followed informally by some CPS centres.

31 Provide judges with greater control: Judges could be given the ability to specify whether an offender should complete community work at a CPS work centre or community agency. Judges could also specify the time period within which community work must be completed, including the minimum number of hours to be completed within a specified period. Both these options reflect components of PD. The advantage of the current approach is that it provides flexibility to match available resources and work, to offenders and their needs. In addition, the Department of Corrections is able to minimise the extent to which low-risk offenders are mixed with hardened offenders, and respond quickly to any concerns that arise with an offender's original placement. Feedback from the judiciary indicates that judges would be more likely to direct an offender's placement at a work centre, which will require increased resources.

32 Reintroduce a semi-custodial component to community work: A key difference between community work and PD is that an offender on PD was legally "in the custody" of CPS, whereas an offender on community work is not. That aspect of PD more clearly identified PD as the highest tariff community-based sentence and the "last resort" before a sentence of imprisonment was imposed. A custodial component to community work could be introduced, so that offenders are "in the custody" of a probation officer while on community work. However, under the Sentencing Act 2002, offenders on community work are "subject to the control, direction and supervision of a probation officer". Therefore, while such a change may address a perception issue, it will have no significant impact on the way in which community work is served.

Supervision

33 Options to enhance supervision are discussed in paragraphs 34 and 35.

34 Programme availability : A lack of programmes will continue to be a key barrier to the use of supervision regardless of any other enhancements that are made.
s.9(2)(f)(iv)
Paper Nine also proposes further work on a review of drug and alcohol services.

35 Offender motivation: Another concern raised by the judiciary is the tendency for probation officers not to recommend supervision, for offenders who have been assessed as unmotivated, to address their offending and/or its underlying causes. CPS has made changes to its policies and procedures to address this concern. Any further gains, for example, to increase recommendations for supervision for less-motivated offenders, will require additional resources. These resources relate to staff training and supervision, and the additional time probation officers will need to spend with offenders who are not highly motivated.

Other alternative sentences/disposition options

36 There are a number of other disposition options that are available as alternatives to the use of imprisonment. Some enhancements in these areas may also be possible.

Reintroducing a residential component to the current menu of community-based sentences

37 Some support is evident (e.g. amongst the judiciary) for the reintroduction of a residential component to the current menu of community-based sentences. PD included a residential component for youth, which was abolished in the mid-1980s. The reintroduction of a residential component does not reflect current evidence about best practice and could prove counterproductive to the aim of reducing re-offending (e.g. by mixing low- and high-risk offenders and jeopardising community ties). This proposal would have significant funding implications, for both establishment and ongoing costs.

Disqualification from driving

38 Aspects of the current penalty structure for disqualification from driving may set offenders up for failure and put them on a treadmill of offending towards imprisonment. For example, as there is no maximum disqualification period specified in the Land Transport Act 1998, offenders may be subject to long cumulative periods of disqualification from driving. The likelihood of compliance with a disqualification period decreases as the disqualification period increases. In addition, the current 28 day stand-down period before disqualified drivers may apply for a limited license may create an incentive for people to ignore the order (e.g. to not lose employment).

39 Consideration could be given to specifying a maximum period of disqualification as well as working pro-actively with offenders to assist them to address their problem and regain their license. Paper Nine of this suite of papers includes a recommendation that the Department of Corrections undertakes further work on the design, targeting, costs and likely impact on re-offending, of driving skills and defensive driving courses.

40 Penalties in the land transport system for driving offences reflect a concerted effort over recent years to achieve road safety goals, in particular, reducing death and injury from driving offences. Any changes to relevant penalties to meet criminal justice concerns should not compromise these goals. As the Land Transport Act 1998 is administered by the Ministry of Transport, any proposals to address the concerns above should be developed in conjunction with that Ministry.

Next steps

41 There is a significant amount of analysis and development work required before the proposed suite of community-based sentences can be finalised. This work includes ensuring there are clear distinctions between the sentences (in terms of their purposes and target groups), the ways in which the sentences will be able to be combined, mitigation of net-widening risks, finalisation of the judicial supervision process, and further analysis of costs and benefits.

42 As discussed, some of the enhancements to current sentences have the potential to further strengthen the availability of credible alternatives to imprisonment. Work is underway to review current policies and procedures for community work, address programme availability for supervision sentences, and increase probation officers' ability to maintain offenders' motivation on supervision. Potential enhancements that warrant further analysis are:

• Community work : increasing the availability of community work projects, strengthening the credibility of agency placements, revisiting the combination of community work with other sentences, and providing judges with greater control over how community work is served; and
• Disqualification from driving: considering whether current penalties for disqualification from driving are effective in addressing driving behaviour and reducing future offending.

43 The effectiveness of any of the proposals depends, in large part, upon the judicial response to the proposals once implemented. It is therefore critical that the final package for reform be informed by further consultation with the judiciary. It is recommended that before Cabinet makes final decisions on a package to reform community-based sentences, further consultation takes place with the judiciary on the extent to which the proposals meet their concerns. The Ministry of Justice and Department of Corrections will report back to the Cabinet Policy Committee by s.9(2)(f)(iv) on a final package for reform of community-based sentences.

Financial implications

44 There are no financial implications directly arising from this paper. However, any proposals to strengthen community-based sentences will require additional funding for the Department of Corrections for additional probation officers, funding for programmes (as proposed in Paper Nine), electronic monitoring, and administrative costs. There will also be capital implications associated with an increase in the number of probation officers and the costs of redeveloping the Integrated Offender Management System to manage the new sentences. Some funding will be required during 2006/07, as well as 2007/08 and out-years.

45 s.9(2)(f)(iv)

46 s.9(2)(f)(iv)

Recommendations

47 It is recommended that the Cabinet Policy Committee:

1 agree in principle , subject to the consultation proposed in recommendation 6, and further evaluation of costs and benefits, to a proposed sentence structure and hierarchy under which:

• Imprisonment is clearly the most severe sentence available.
• The proposed sentence of home detention is next in the hierarchy, and is the last alternative before imprisonment.
• There are two distinct tiers in the hierarchy for community-based sentences, reflecting different levels of severity and intensity.
• A new tier of community-based sentences is proposed, with two new sentences: electronically-monitored curfew, and intensive supervision.
• The current community-based sentences, community work and supervision, follow on the next tier.
• Community work is available as an option alongside any other community-based sentence, as well as the proposed home detention sentence.
• The level of engagement, monitoring and supervision of an offender increases as the offender moves up the sentencing hierarchy, for example, the use of judicial supervision of home detention and intensive supervision.
• There is a greater emphasis at each stage of the hierarchy on the development of offenders' work-related and living skills where required (e.g. literacy and numeracy, budgeting, and parenting).

2 note that there is a range of possible enhancements that could also be made to current community-based sentences;

3 note that work is underway by the Department of Corrections to review current policies and procedures for community work, address programme availability for supervision sentences, and increase probation officer capability and capacity to maintain offenders' motivation on supervision;

4 agree that further consideration be given to the following potential enhancements to current sentences:

4.1 Community work : increasing the availability of community work projects, strengthening the credibility of agency placements, revisiting the combination of community work with other sentences, and providing judges with greater control over how community work is served; and

4.2 Disqualification from driving : considering whether current penalties for disqualification from driving are effective in addressing driving behaviour and reducing future offending.

5 note that the effectiveness of any of the proposed options depends, in large part, upon the judicial response to the proposals once implemented;

6 agree that the final package for reform of community-based sentences be informed by further consultation with the judiciary;

7 authorise the Ministry of Justice and Department of Corrections to undertake further consultation with the judiciary on the proposals identified in recommendations 1 and 4;

8 direct the Ministry of Justice and Department of Corrections to undertake further consultation with the Ministry of Transport on the proposal identified in recommendation 4.2;

9 direct the Ministry of Justice and Department of Corrections to report back to the Cabinet Policy Committee with a final package for reform of community-based sentences by s.9(2)(f)(iv).

Hon Mark Burton
Minister of Justice

On behalf of:

Hon Rick Barker, Minister for Courts

Hon Damien O'Connor, Minister of Corrections

APPENDIX A

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APPENDIX B

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