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You are here: Cabinet PapersCriminal Justice Reform Bill: Approval for Introduction

Paper 17: Criminal Justice Reform Bill: Approval for Introduction

Proposal

  1. The purpose of this paper is to seek the Committee’s approval for the introduction of the Criminal Justice Reform Bill. The Bill gives effect to the Government’s decisions on Effective Interventions in the Criminal Justice System, and includes some miscellaneous remedial measures (which chiefly relate to extended supervision orders). The paper also seeks approval for changes incorporated into the bill that were not covered by the original policy approvals but have arisen subsequently.
  1. The Bill (under the title of the Criminal Justice Remedial Matters Bill) holds priority 2 on the 2006 legislation programme.

Policy

  1. The Bill gives effect to the Government’s decisions arising from the Effective Interventions project, and implements recommendations made by the Law Commission in its report Sentencing Guidelines and Parole Reform (NZLC R94). Reforms to home detention and community-based sentences will help to ensure that prison continues to be used for serious offenders while providing alternatives for less serious offenders and keeping the community safe. The Sentencing Council and parole reforms are intended to enhance consistency, transparency and community confidence, and create a robust link between sentencing policy development (including the setting of sentence levels) and the government’s ability to manage its penal resources. The measures in the Bill:
  • establish a Sentencing Council that will be charged with issuing guidelines on sentencing principles, sentencing levels, particular types of sentence, other matters relating to sentencing practice, and the granting of parole. The guidelines will be subject to a public consultation process and to Parliamentary scrutiny which may result in a proposed guideline or group of guidelines being disallowed;
  • create a new sentence of home detention, which is an alternative to a short-term sentence of imprisonment;
  • expand the range of community-based sentences by introducing new sentences of community detention and intensive supervision;
  • place greater emphasis on the acquisition of basic work and life skills by, for example, giving judges the discretion to approve the probation officer converting some community work hours to the acquisition of such skills;
  • introduce judicial monitoring of selected offenders as a special condition of home detention and intensive supervision;
  • enhance the effectiveness of community-based sentences by, for example, introducing a new regime to facilitate the completion of community work hours in a more timely fashion; and
  • amend the Bail Act to better reflect the common law and ensure that offenders are not unnecessarily remanded in custody rather than on bail.

CAB Min (06) 27/3A consolidating the decisions on Cabinet Policy Committee papers POL (06) 169-179 refers. Detailed decisions on community-based sentences were made separately; POL Min (06) 21/6 and POL (06) 292 refer.

  1. The Bill also gives effect to policy decisions:
  • clarifying how long release conditions on short-term sentences of imprisonment can apply; and
  • improving the operation of the extended supervision regime under the Parole Act.

CBC Min (06) 17/12 refers.

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Additional Policy Approvals Required

  1. The Bill includes provisions that are outside the scope of the original policy approvals. Most of these relate to issues that have arisen in the detailed drafting process or in the course of consulting on the Bill. There are two additional extraneous matters. The first of these is in relation to information in support of applications for extended supervision orders and preventive detention and has arisen due to a Court of Appeal decision. The second relates to the sunset clauses in the Prisoners’ and Victims’ Claims Act 2005.

Information to Support Applications for Extended Supervision Orders & Preventive Detention

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Sunset Clauses in the Prisoners’ and Victims’ Claims Act 2005

  1. The Prisoners’ and Victims’ Claims Act contains two sunset clauses. If no amendment is made, the sunset clauses will take effect on 1 July 2007.
  1. The effect of the first sunset clause is to remove the guidelines that restrict the circumstances in which the courts can award compensation to prisoners. The common law on when compensation should be paid for breaches of prisoners’ rights will then apply to all claims made.
  1. The effect of the second sunset clause is to remove the special provisions that currently apply to compensation paid to prisoners. These provisions include the Victims’ Claims trust fund that receives all compensation payments, and the Claims Tribunal, which simplifies the processes for victims who wish to make claims against compensation payments. In the absence of these special provisions, prisoners will receive all compensation payments directly and victims will have to make their claims through the civil courts.
  1. The rationale for the sunset clauses was that beyond 1 July 2007 the guidelines restricting compensation payments to prisoners would hardly ever be necessary. The Government’s intention was that improvements in the prisons complaints system, including a new independent complaints body, would help to ensure that breaches of prisoners’ rights did not escalate to the level where monetary compensation was considered necessary by the courts.
  1. It now appears unlikely that all historical claims will be settled by 1 July 2007. As a result, the processes established by the Prisoners’ and Victims’ Claims Act will still be necessary. Therefore, I propose that the sunset clauses be extended, so that they come into effect on XXXX [date to be decided].

Additional policy approvals for new sentence of home detention

  1. Cabinet invited the Minister of Justice to issue drafting instructions for the new sentence of home detention based on Appendix B of the paper under POL (06) 175 (‘Appendix B”) [CAB Min (06) 27/3A, para 65 refers]. Approvals are sought for matters that were either not covered by Appendix B, or where it is proposed that the policy deviate from that expressed in Appendix B.

Offenders under the age of 17

  1. The Sentencing Act 2002 provides that a court may not impose a sentence of imprisonment on an offender who was under 17 at the time of the offence (a ‘young offender’), unless the offence is purely indictable (trial by jury only). It is proposed that the same restriction apply to the new sentence of home detention. This matter was not addressed in Appendix B.
  1. Home detention should be available for young offenders convicted of purely indictable offences because these offenders can be sentenced to imprisonment. Home detention has a number of advantages as an alternative to imprisonment, such as enabling the offender to maintain family relationships and employment. These factors reduce the risk of young people re-offending.
  1. Home detention should not be available for young offenders convicted of other offences because there would be no real way of dealing with serious breaches of the sentence. A young offender could not be sentenced to imprisonment for breach of the sentence unless they had also committed a purely indictable offence, or had turned 17 before breaching the sentence. Without a credible way of dealing with serious breaches of the sentence, the sentence would be seriously undermined.

Minimum term for home detention

  1. It is proposed that a minimum length of 14 days apply to sentences of home detention (this matter was not addressed in Appendix B). This effectively carries over the current minimum for home detention in section 35(3) of the Parole Act 2002, although the way this is expressed is changed from “more than 14 days” (i.e. 15 days or more) to “14 days or more”. A minimum term is required because very short sentences of home detention would be costly in terms of administration and of very little rehabilitative or re-integrative value.

Deferral of start date

  1. Currently, when the court imposes a short-term sentence of imprisonment and gives the offender leave to apply for home detention, it may defer the start date of the sentence for up to two months on humanitarian grounds or in exceptional circumstances. It is proposed that there be a similar power in regard to the new sentence of home detention. (This matter was not addressed in Appendix B).
  1. It is proposed that there be a power to defer the start of a sentence of home detention for two months on humanitarian grounds or where deferral is in the interests of justice. The power to defer on humanitarian grounds covers situations such as the care of a critically ill relative in another city. The power to defer in the interests of justice covers situations where, for instance, the residence is not available until a week after sentence.

“Curfew only” period

  1. Cabinet noted that as part of the more detailed work associated with finalising the policy and developing drafting instructions, the Ministry of Justice and Department of Corrections would investigate whether home detention could include a curfew only component, and how it should operate [CAB Min (06) 27/3A, para 66.1 refers]. The purpose of a “curfew only phase” would be to assist the re-integration of the offender towards the end of the sentence.
  1. The Ministry and the Department have agreed that rather than a “curfew only phase”, a probation officer should be able to authorise the offender’s absence from the home detention residence for up to 4 hours per day without a specified purpose towards the end of the sentence. It is proposed that this authority only be available for longer sentences (six months or more), and when the offender has served three quarters of the sentence.

Penalty for breach of post-detention conditions

  1. Cabinet agreed that offenders sentenced to home detention should be subject to conditions for a period after the sentence ends (“post-detention conditions”), as is the case for offenders sentenced to short-term sentences of imprisonment.
  1. In the context of short-term sentences of imprisonment, breach of these conditions is punishable by a maximum of 1 year’s imprisonment or a fine of $2000. Because home detention is a less severe sentence than imprisonment, it is proposed that the maximum penalty for breach of post-detention conditions be 6 months imprisonment or a fine of $1500. This is consistent with the other penalties in the Sentencing Act 2002 and Parole Act 2002.

Presumption of re-sentencing to imprisonment in the event of breach

  1. Appendix B proposed that there be a presumption of re-sentencing to imprisonment in the event of breach of a sentence of home detention. It is now proposed that it be left to the court to decide the appropriate penalty rather than having a presumption in favour of imprisonment.
  1. Most breaches of the new sentence of home detention will be relatively minor, as is the case with the current home detention regime. A presumption in favour of imprisonment for breach would be likely to result in less reporting of breaches, a higher rate of imprisonment for those that are reported, and would be contrary to the rehabilitative and re-integrative nature of the sentence.

Applications for re-sentencing based on recall provisions

  1. Appendix B proposed that offenders be able to be re-sentenced in a number of situations, such as where the sentence was being breached (“re-sentencing” is called “variation and cancellation” in the draft Bill). Appendix B proposed that applications for re-sentencing be based on the provisions for recall to prison in the Parole Act 2002, which currently apply to offenders serving sentences of imprisonment on home detention.
  1. It is proposed that the process for applications for re-sentencing be based on the process for variation and cancellation of community-based sentences in the Sentencing Act 2002, rather than the recall provisions in the Parole Act. It is more appropriate to base the re-sentencing provisions on the provisions in the Sentencing Act because they relate to varying and cancelling sentences. The recall provisions in the Parole Act only relate to changing the way an offender serves his or her sentence, and are consequently less appropriate.

Additional policy approvals for Sentencing Council

Appointment and removal of non-judicial Sentencing Council members

  1. Cabinet agreed that the five non-judicial members of the Council should be appointed by the Governor-General on the recommendation of the Minister of Justice [CAB Min (06) 27/3A refers].
  1. The judiciary and some other commentators have suggested that this process does not sufficiently distance the Council from the possibility of politically-motivated appointments (even though it had always been envisaged that the judicial appointments would be made by a different process – that is, by the applicable Head of Bench). For this reason, the judiciary have reservations about this model.
  1. However, the judiciary would support a model whereby non-judicial members are appointed by the Governor-General on the recommendation of the House of Representatives. Removal from the Council would follow a similar process, requiring an address from the House. There are precedents for this (eg, the Parliamentary Commissioner for the Environment, the Abortion Supervisory Committee, the Ombudsmen, and the Auditor-General). This is the model that I propose. Although some of the examples listed are Officers of Parliament, it is not intended that members of the Council would have this status.

Sentencing Council to be a body corporate

  1. In agreeing that the Council should be an independent statutory body, one issue that Cabinet was not asked to address was whether it would be attached to an existing government agency for funding and administrative purposes (as the Parole Board is to the Department of Corrections), or established as a body corporate. The judiciary has expressed concern about attachment to a core government agency (such as the Ministry of Justice), which leaves few other options. The Law Commission, Treasury, Department of Prime Minister and Cabinet, State Services Commission, and the Ministry of Justice have all agreed that establishment of the Council as a body corporate would be the best solution. It would be a matter for the Council to determine in the light of its available budget whether in practice it would use some other body to provide administrative support.

Non-judicial chair and judicial deputy chair for Sentencing Council

  1. Cabinet deferred making a decision on the recommendation “that EITHER the Head of the Sentencing Council should be a judge appointed from the Court of Appeal; OR the Head of the Sentencing Council should be one of the non-judicial members” [CAB Min (06) 27/3A refers].
  1. If there were to be a Parliamentary appointments process as proposed above, there is an emerging consensus amongst all stakeholders, including the judiciary, that the chairperson of the Sentencing Council should be one of the non-judicial members, appointed by the Governor-General on the recommendation of the House of Representatives. However, it is considered that a judicial deputy chair designated by the Chief Justice would be appropriate.

Official observers to Sentencing Council

  1. Cabinet agreed that one or more appropriate officials should be appointed to the Council as observers [CAB Min (06) 27/3A refers].
  1. In the interests of ensuring manageable numbers of officials, and also that the two key agencies with a stake in the Council’s work are involved, the Bill clarifies that the Chief Executives of the Ministry of Justice and the Department of Corrections may appoint an official observer from each agency to the Council. This of course will not prevent the Council from consulting with other government agencies, if it considers that necessary or desirable.

Sentencing Council members’ term of office

  1. Cabinet agreed that, for both judicial and non-judicial members, the term of office should be 5 years [CAB Min (06) 27/3A refers].
  1. The Bill expands upon that slightly, by providing for an initial term of up to 5 years, with the opportunity of one renewal to a maximum total term of 7 years. This is intended to optimise both continuity (by staggering the timing of appointments to the Council) and breadth and freshness of perspective (by ensuring a relatively regular turnover of membership).

Procedure for Sentencing Council meetings

  1. Decisions were not sought from Cabinet previously about the procedure for Council meetings. In general, it is appropriate to leave such matters to the Council. The Bill provides that, in general, it will be up to the Council to regulate its own procedure. However, decisions of the Council shall be taken by majority, with each member (including the Chair) having one vote. In practice, this will require a minimum split of 6:4, which is intended to reduce the likelihood of the Council becoming captured by factions.

Test for departure from the sentencing and parole guidelines

  1. Cabinet agreed that the test for departure from the sentencing and parole guidelines should be "contrary to the public interest" [CAB Min (06) 27/3A consolidating the decisions on Cabinet Policy Committee papers POL (06) 169-179 refers].  In the light of further consultation with the judiciary, it has been agreed that "contrary to the interests of justice" would be a more appropriate departure test, because it has a widely understood and accepted legal meaning.  The concerns originally raised about its vagueness can be addressed by requiring the Council to issue a sentencing guideline on grounds for departure.  This requirement has been included in the Bill

Post-release monitoring of parolees by Parole Board

  1. Cabinet agreedthat, upon releasing a prisoner, t he Parole Board should be empowered to request a three-month progress report [CAB Min (06) 27/3A refers].
  1. The Law Commission originally consulted upon a proposal whereby the Parole Board could require regular post-release appearances before it by selected offenders, with a view to closer Parole Board management of them. This was based upon the United States re-entry court model and, it was thought, had the potential to achieve a number of desirable ends relating to the management of offenders, and the confidence of both the general public and the Parole Board. Having further considered the issues, both the Parole Board and the Department of Corrections now support a proposal of this kind; they consider that it will be more principled and more robust than provision for a progress report, and as the process set out in the Bill is not considered impracticable (as was first assumed) nor unduly onerous from a resourcing perspective.
  1. The key features of the proposal are:
  • Operationally, these cases are likely to be dealt with by the Board’s “extended Board”, which sits monthly in Auckland, Wellington and Christchurch to deal with prisoners serving indeterminate sentences. The extended Board has a more constant membership than regular Parole Board panels (whose composition varies between sittings), because four of its seven members are permanent members. This will offer some continuity, for the purpose of personalised hands-on management of offenders.
  • For offenders who do not live locally, the Board envisages that video-conferencing (or, as a last resort, telephone conferencing) will suffice.
  • It is proposed that the threshold for a post-release monitoring requirement should be “special circumstances relating to the offender”. This is expected to capture a relatively small number of the most serious offenders, and thus resource implications should be negligible.
  • Monitoring by the Board is proposed for a maximum of 1 year (or 6 months, for offenders released within 6 months of their sentence expiry date), at intervals of not less than 3 months.
  • The Board may choose whether to require an appearance as a special condition of parole, or request a written report from the Department of Corrections.
  • The Board will have the power to vary special conditions previously imposed on the offender, impose new conditions, or make an interim recall order.
  • None of the above will affect the existing powers of probation officers to monitor offenders and, if necessary, apply for an interim recall order or seek variation of conditions.

Compliance

  1. The Bill complies with the following:

(a) the principles of the Treaty of Waitangi;

(b) the Human Rights Act 1993;

(c) the Privacy Act 1993;

(d) relevant international standards and obligations;

(e) guidelines in the Legislation Advisory Committee Report, Legislative Change: Guidelines on Process and Content (third edition, 2001).

  1. Crown Law has indicated that the Bill appears to comply with the New Zealand Bill of Rights Act 1990, and that it will provide the Attorney-General with its final advice as to compliance after studying the introduction version of the Bill.
  1. The original policy papers in relation to the Sentencing Council, sentencing and parole guidelines and parole reform were not accompanied by a Regulatory Impact Statement. A Statement has been prepared and is attached as Appendix One.

Consultation

  1. The Effective Interventions proposals were developed by an inter-agency group, comprising officials from the following: Child, Youth & Family, Department of Corrections, Ministry of Justice, New Zealand Police, Department of Prime Minister and Cabinet, Ministry of Social Development, State Services Commission and Treasury. The inter-agency group consulted with the Law Commission, Ministry of Education, Ministry of Health, Department of Labour, Ministry of Pacific Island Affairs, Te Puni Kokiri, and Ministry of Women’s Affairs.
  1. In the development of its report Sentencing Guidelines and Parole Reform (which this Bill implements), the Law Commission consulted the following government agencies: Ministry of Justice, Department of Corrections , New Zealand Police, Crown Law Office, Department of Prime Minister and Cabinet, Treasury, State Services Commission, Parliamentary Counsel Office, Ministry of Economic Development, Ministry of Social Development, Te Puni Kokiri, Ministry of Pacific Island Affairs, and Ministry of Women’s Affairs. The following non-government stakeholders were also consulted: the judiciary (Supreme Court, Court of Appeal, High Court, District Court), the NZ Parole Board, NZ Council of Victim Support Groups, Criminal Law Committee of the New Zealand Law Society, Criminal Bar Association, Auckland District Law Society, Meredith Connell (Crown Solicitors, Auckland), Luke Cunningham Clere (Crown Solicitors, Wellington), Prison Fellowship of New Zealand, Howard League for Penal Reform (Auckland and Christchurch), NZPARS, Salvation Army Social Policy and Parliamentary Unit, New Zealand and international academics and experts.
  1. Consultation on the miscellaneous amendments was undertaken with the Department of Corrections, Law Commission, NZ Parole Board, New Zealand Police and the Treasury.
  1. The following Government agencies and public bodies were consulted on the draft Bill: the judiciary (on the Sentencing Council proposals), the New Zealand Police, Department of Corrections, the Privacy Commissioner and the NZ Parole Board (on the parole proposals). Comments made on the bill have been incorporated where appropriate.

Binding on the Crown

  1. The Bill will bind the Crown.
  1. The Bill will amend the Sentencing Act 2002, the Parole Act 2002, and the Bail Act 2000. These Acts already bind the Crown. The Bill will also consequentially amend other Acts that bind the Crown.
  1. A Sentencing Council Act is also proposed. It was previously envisaged (at the time of the Cabinet approvals) that these provisions would be included as an additional part of the Sentencing Act. Since then, Parliamentary Counsel Office has advised that a separate self-contained Act would be preferable. It is proposed that this Act should likewise bind the Crown.

Creating new agencies or amending law relating to existing agencies

  1. The legislation establishes a Sentencing Council.
  1. The Sentencing Council will be subject to the Official Information Act 1982 and, via that Act, the Ombudsmen Act 1975. The Office of the Ombudsmen has been consulted and concurs with these provisions.
  1. It is proposed that the Sentencing Council should be an independent statutory body and, more specifically, a body corporate: see further the policy approval sought in to para 34. The Law Commission, Treasury, Department of Prime Minister and Cabinet , State Services Commission , and Ministry of Justice have been consulted, and agree with the proposed approach.  The legislative arrangements for the Council have been described as "sui generis", in recognition of its unique constitutional status.  The Crown Entities Act has been heavily drawn upon, and other legislative models include the Public Audit Act, the Maori Television Services Act, and Part 1 of the Environment Act (which relates to the Parliamentary Commissioner for the Environment).

Allocation of decision-making powers

  1. The existence of a Sentencing Council, and its production of sentencing guidelines, will not affect the power of the executive, via Parliament, to legislatively determine sentencing policy including maximum penalties. Nor will it affect the power of judges to determine the appropriate sentence in the individual case: guidance will be offered by the Council, but can be departed from in the interests of justice.
  1. The guidelines will operate in the former sphere of guideline judgments from the Court of Appeal: that is, judicial guidance as to sentence levels for a particular offence type. Given that guidelines produced by the Council may be disallowed by Parliament, ultimately Parliament will have more say in these matters than it does presently. This is appropriate in an area with a significant policy element.
  1. The Council has been deliberately constituted to sit between the judiciary, Parliament, and the executive. Rather than choosing to whom the power is to be allocated, it is more accurate to say that all are intended to contribute.
  1. In relation to this aspect of the policy proposals, regard has been had to chapter 8 of the LAC’s Guidelines.

Associated regulations

  1. The Sentencing Regulations will be amended to introduce forms for the new sentence of home detention and the new community-based sentences.

Deemed regulations

  1. The bill does not include any provisions empowering the making of deemed regulations .

Definition of Minister/department

  1. The Bill contains a definition of minister in respect of the Sentencing Council. It provides that “Minister” means the Minister of Justice. The Cabinet Office has been consulted and supports the definition.

Commencement of legislation

  1. The different parts of the Bill will come into force on a date to be decided by the Governor-General by Order in Council, and one or more orders may be made bringing different provisions into force on different dates.
  1. Neither a specific commencement date, nor commencement on the day after the date of Royal Assent, is appropriate in this context. There will be a break-up SOP splitting the Bill into parts. Commencement by way of Order in Council maintains helpful flexibility in terms of managing the passage of the Bill.
  1. The explanatory note sets out the reasons for commencement by Order in Council.

Parliamentary stages

  1. The Bill is expected to be introduced on 21 November 2006 for passage by the end of June 2007, if possible.
  1. It is proposed that the Bill be referred to the Justice and Electoral Select Committee.

Recommendations

  1. I recommend that the Committee:

1

note that the Criminal Justice Reform Bill gives effect to the Government’s decisions on Effective Interventions in the Criminal Justice System, and includes some related miscellaneous remedial measures;

2

note that the Bill (under the title Criminal Justice Remedial Matters Amendment Bill) holds priority 2 on the 2006 legislation programme;

3

agree to the amendment of s107F(2) of the Parole Act 2002 and s88 of the Sentencing Act 2002 to make it explicit that a report on an application for an extended supervision order or preventive detention may cover conduct that has not been proved in Court;

4

agree to the amendment of sections 16 and 17 of the Prisoner’s and Victims’ Claims Act 2005 so that these provisions have effect on XXXX [date to be decided];

5

agree that the new sentence of home detention should:

5.1 not be able to be imposed on an offender who was under 17 at the time of the offence unless the offence is purely indictable;

5.2 have a minimum term of 14 days;

5.3 be able to be deferred for up to two months on humanitarian grounds or in the interests of justice;

5.4 include provision for a probation officer to authorise an offender, who has served at least three quarters of a sentence of six months or more, to be absent from the home detention residence for up to 4 hours per day without a specified purpose;

5.5 have a maximum penalty of six months imprisonment or a $1500 fine for breach of post-detention conditions;

5.6 not have a presumption of re-sentencing to imprisonment in the event of breach of the sentence;

5.7 have provisions on re-sentencing based on the provisions on variation and cancellation of community-based sentences in the Sentencing Act 2002, rather than the recall provisions in the Parole Act 2002;

6

agree that the five non-judicial appointments to the Sentencing Council should be made by the Governor-General on the recommendation of the House of Representatives; and removal of those members from the Council should follow a similar process (requiring an address from the House);

7

agree that the Sentencing Council should be a body corporate;

8

agree that the chairperson of the Sentencing Council should be one of the non-judicial members, appointed by the Governor-General on the recommendation of the House of Representatives;

9

agree that the Council should have a judicial deputy chair, designated by the Chief Justice;

10

agree that the Chief Executives of the Ministry of Justice and the Department of Corrections may each appoint an official observer to the Council;

11

agree that Council members should be appointed for an initial term of up to 5 years, with the opportunity of one renewal to a maximum total term of 7 years;

12

agree that decisions of the Council shall be taken by majority, with each member (including the Chair) having one vote; in other respects, it will be up to the Council to regulate its own procedure;

13

agree that the test for departure from the sentencing and parole guidelines should be "contrary to the interests of justice";

14

agree that in cases in which the Parole Board is satisfied that, because of special circumstances relating to the offender, it is desirable for the Board to maintain contact with that person, the Board may request progress reports or require the offender to attend regular hearings for up to 1 year, at intervals of not less than 3 months; and at such hearings the Board may vary special conditions previously imposed on the offender, impose new conditions, or make an interim recall order;

15

agree that the Act establishing the Sentencing Council will bind the Crown;

16

approve for introduction the Criminal Justice Reform Bill, subject to the final approval of government caucuses;

17

agree that the Bill be introduced on 21 November 2006, if possible;

18

Agree that the Government propose that the Bill be:

  • referred to the Justice and Electoral Select Committee for consideration;
  • enacted by June 2007, if possible.

Mark Burton
Minister of Justice

Appendix One

REGULATORY IMPACT STATEMENT

Statement of the nature and magnitude of the problem and the need for government action

The current sentencing and parole regimes are characterised by being highly discretionary.

The Sentencing Act 2002 provided some limited guidance, but in general judges remain free to determine sentence levels. Court of Appeal guideline judgments offer sentencing judges some guidance for the more serious offences.

Under the Parole Act 2002, most offenders sentenced to a determinate sentence of more than two years are eligible for release on parole after one-third of that sentence. Offenders serving sentences of two years or less are automatically released after serving half their sentence.

The resulting problems include:

a. There is significant inconsistency in the sentences imposed between judges and between courts.

b. Guideline judgments are limited in the scope of their coverage, because appeals are not taken in the whole range of cases. Furthermore, appellate judgments are not informed by the full range of perspectives that would be beneficial to the development of sentencing policy.

c. There is no mechanism whereby the government can reliably set penal policy and manage penal outcomes, other than by the blunt tool of amending maximum penalties.

d. There is insufficient “truth in sentencing”, which adversely affects public confidence in the system.

e. The difficulty in predicting when prisoners are likely to be released by the Parole Board poses problems for prison population forecasting and sentence management.

f. The long span of parole necessitates repeated Parole Board appearances, which is resource-intensive for the Board and the Department of Corrections, and less than ideal for victims.

Statement of the public policy objectives

The objectives are to:

a. Increase consistency in sentencing;

b. Broaden the base of responsibility for determining sentencing policy, so that the judiciary, Parliament, and the general public may all contribute;

c. Promote more truth in sentencing;

d. Improve prison population forecasting and sentence planning by reducing unpredictability in the time that prisoners serve;

e. Enhance public confidence;

f. Improve the government’s ability to manage its penal resources.

Statement of feasible options for achieving the desired objectives

Status quo

Retention of the status quo has been rejected as a feasible option, in the light of all of the problems identified above.

Most of the options that follow are necessarily regulatory options because, to achieve any significant degree of reform, the Sentencing Act 2002 and the Parole Act 2002 will need to be amended.

Feasible reform options

For sentencing, the following reform options were considered and rejected:

a. The provision of better sentencing information. The provision of more information on current sentencing practices may make inconsistency more evident, without providing any guidance about how that inconsistency should be resolved.

b. More legislative guidance. Attempts by legislatures to offer sentencing guidance have not generally succeeded, either in New Zealand or overseas. Guidance offered by Parliament and in statute does not lend itself well to either the necessary level of detail or an appropriate degree of flexibility; this approach is also one that would tend to politicise the development of sentencing policy.

c. Better resourced and proactive appellate guidance. The Court of Appeal could be empowered to issue guidance without waiting for a suitable case to come before it and could be given research resource and/or access to external expertise. Both of these changes would be advantageous. However, if the higher courts were to remain largely responsible for setting sentence levels, Parliament and the general public would continue to be kept at arms length from this important public policy issue.

d. An independent Sentencing Council with an advisory and educative role. In Australia, Sentencing Councils have been established in New South Wales and Victoria to collate and provide information about sentencing trends and practices, and advise the government and the judiciary on matters of sentencing policy. However, Councils of this kind do not issue sentencing guidance about the appropriate type and range of sentence for particular offending. That remains a judicial function.

For parole, the following reform options were considered and rejected:

a. No early release (abolition of parole). No early release is in some respects a politically attractive option: it wholly aligns with the goal of truth in sentencing; is immediately comprehensible; looks robust; and makes the time that a prisoner will serve absolutely transparent.

b. Automatic early release. Automatic early release entails prisoners being released at a fixed point of their sentence (perhaps one-half or two-thirds). Automatic early release ensures absolute certainty about the point of release; it also allows for a proportion of the sentence to be spent in the community for reintegrative purposes.

However, both options have some telling disadvantages, relative to parole. Because the timing of release is fixed, they offer no incentive for prisoners to attempt to rehabilitate while in custody. Nor do they differentiate between high-risk and low-risk prisoners in terms of the timing of release. Automatic early release does allow for some differential management, by way of more stringent post-release conditions for high-risk prisoners, but against this, there would be no power of recall as there is with parole. High-risk prisoners would also tend to be released earlier on average (because, under a parole system, they can if necessary be required to serve their full term).

Preferred regulatory option

The preferred option (which is a regulatory option) is to introduce new legislation to:

a. Establish an independent sentencing council charged with issuing guidelines on sentencing principles, sentencing levels, particular types of sentence, other matters relating to sentencing practice, and the granting of parole. The Council will have a mix of judicial and non-judicial members; its guidelines will be subject to a public consultation process; and Parliament will scrutinise (and may disallow) the guidelines.

b. Reform the parole system, so that risk will be the sole consideration in determining that an offender should be released on parole; the parole eligibility date for long-term sentences (greater than twelve months) will be two-thirds of the nominal sentence; and short-term sentences (twelve months or less) will be served in full.

c. Consequentially amend the Sentencing Act 2002 and the Parole Act 2002.

Statement of the net benefit of the proposal

Financial implications

These proposals have not been costed in terms of projected prison bed savings. This is because the number of beds avoided (or gained) will depend entirely upon the shape of the sentencing guidelines.

The proposals have financial implications:

a. The Law Commission has been granted additional funding for two years for the set-up and ongoing costs of an establishment unit attached to the Commission to progress sentencing guideline work – specifically, capital funding of $65,000 (ex GST) in 2006/07, and operating funding of $1,020,000 (ex GST) in 2006/07 and $1,238,700 (ex GST) in 2007/08.

b. It is proposed that funding decisions relating to the Sentencing Council should be made at a later stage. Indicative costs for the ongoing operation of the Council, if it was attached to another agency, were previously calculated at $1.1m per annum. It is now recommended that the Council should be a body corporate. It is difficult to quantify the likely fiscal impact of this proposed change, but some increased administrative costs might be expected.

c. For Vote: Corrections and Vote: Justice the financial implications of both the sentencing and parole changes are predicted to be largely neutral, with the exception of one-off implementation costs for Corrections associated with IT changes to the Integrated Offender Management System.

The parole reforms are expected to be fiscally neutral, provided that the impact of prisoners serving a higher proportion of their sentence is offset by a reduction in average sentence length in the development of the sentencing guidelines.

Intangible benefits

The proposals are expected to have unquantifiable intangible benefits for the government, victims of crime, the judiciary, and society generally:

a. The development of sentencing guidelines that address the bulk of imprisonable offending, and some other key matters, are expected to enhance sentencing consistency and thereby promote the interests of justice.

b. The general public will be able to have a more direct impact on the development of sentencing policy, by way of public consultation on draft guidelines. Parliament will also have more influence than it does at present, because of its option to disallow draft guidelines.

c. It will enhance the government’s ability to manage its penal resources. United States’ experience has proven that this kind of initiative facilitates prison population management (in either direction).

d. Greater “truth in sentencing”, arising from the much shorter span of parole, will promote transparency and public confidence.

e. If sentencing is more consistent because of the sentencing guidelines, and time served is more predictable because of the parole reforms, it will facilitate more effective forecasting of the prison population, and individual sentence management.

f. A shorter span of parole will necessitate fewer repeat Parole Board appearances.

g. Victims of crime can be expected to benefit from fewer parole hearings and clarity of expectations.

Statement of consultation undertaken

The following government agencies were consulted by the Law Commission in the development of its proposals: MoJ (including Effective Interventions team); Corrections; Police; Crown Law; DPMC; Treasury; SSC; PCO; MED; MSD; TPK; MPIA; MWA.

The following non-government stakeholders were also consulted: the judiciary (DC, HC, CA, SC); the Parole Board; NZ Council of Victim Support Groups; Criminal Law Committee of the New Zealand Law Society; Criminal Bar Association ; Auckland District Law Society ; Meredith Connell (Crown Solicitors, Auckland); Luke Cunningham Clere (Crown Solicitors, Wellington); Prison Fellowship of New Zealand ; Howard League (Auckland and Christchurch); NZPARS; Salvation Army Social Policy and Parliamentary Unit; New Zealand and international academics and experts.

Business compliance cost statement

There are no business compliance costs.