Paper 7: Home Detention
Proposal
1 This paper proposes that home detention be established as a separate sentence for lower-risk offenders from 1 July 2007.
Executive summary
2 Increasing the use of home detention, by establishing it as a separate sentence, complements and reinforces the other proposals in this suite of papers by enabling a decrease in the prison population to take effect in the short term.
3 Home detention is currently a means of serving a sentence of imprisonment rather than a sentence in its own right. The new proposed sentence will replace front-end home detention for those serving prison sentences of two years or less. It will not affect pre-parole (back-end) home detention, which will be addressed through the Law Commission's work on sentencing and parole.
4 There is scope to increase the use of home detention and reduce the prison population. The number of offenders serving short sentences on home detention fell from a peak of 530 in 2003, to 291 in May 2006. This has occurred despite the number of offenders sentenced to short sentences of imprisonment (and therefore qualifying for front-end home detention) per year now being 1,600 higher than in 2003/04.
5 Home detention is an effective alternative for low-risk offenders who would otherwise receive a short sentence of imprisonment. It provides positive support for re-integration and rehabilitation of offenders; has low rates of re-conviction and re-imprisonment; high compliance rates; and lower costs than prison.
6 Home detention as a separate sentence will have a maximum term of 12 months, and could be combined with community work or a fine. It is proposed as an alternative to imprisonment. A range of measures are proposed to minimise the net-widening effect that will occur if home detention is used instead of community-based sentences.
7 Once fully implemented, it is estimated the new sentence will avoid 310 prison beds (in addition to the decrease of 60 as a result of the Cabinet decision in December 2005).
8 While there is a risk of greater offending on home detention than in prison, the risk is likely to be low, based on current experience.
9 The costs of this proposal include additional Community Probation Service (CPS) centres and probation officers for the Department of Corrections, and IT systems costs across the Department of Corrections, Ministry of Justice, and Police.
10 Legislative changes will be required to the Sentencing Act 2002 (establishing home detention as a sentence) and the Parole Act 2002 (repealing the provisions about front-end home detention).
11 Introducing home detention as a sentence is a key element in reducing the need for additional prison beds. s.9(2)(f)(iv)
Background
12 On 19 December 2005 the Cabinet Business Committee, having been authorised by Cabinet with Power to Act [ s.9(2)(f)(iv)], agreed to maximising the use of home detention and electronic monitoring as a condition of bail, which was expected to reduce the additional capacity required by up to 180 permanent beds [s.9(2)(f)(iv) ]. Sixty of those beds were expected to come from maximising home detention. The proposals in this paper replace the steps that would have been taken to achieve the 60 bed reduction.
13 Home detention as discussed in this paper refers to those who serve all or part of a sentence of two years or less on home detention (front-end). This paper does not affect pre-parole (back-end) home detention, which will be addressed through the Law Commission's work on sentencing and parole.
Comment
Potential for greater use of home detention
14 There is an opportunity to decrease the sentenced prisoner population by reversing the recent decline in the use of home detention and increasing its use beyond previous levels.
15 The reduced use of home detention contributed about half (150 to 200) of the increase in the sentenced prisoner population between October 2004 and May 2006. The reduction (shown in the figure below) was driven by legislative changes and by a tightening of the approach by the New Zealand Parole Board in determining applications. In May 2006 the home detention population was 291. This was 239 less than the peak of 530 in October 2003.
Front-end home detention population 1999-2006
16Since 2003/04 there has been an increase in the opportunity for home detention to be used. In each year since 2003/04, around 1,600 additional offenders received a sentence of two years imprisonment or less. Increasing the use of home detention for these offenders will decrease the prison population.
Advantages and disadvantages of home detention
17 Increasing the use of home detention offers advantages in addition to reducing pressure on the prisons, including:
- positive support for re-integration and rehabilitation of offenders, enabling employment, accommodation, and family relationships to be maintained;
- low rates of re-conviction and re-imprisonment that are only one-quarter to one-third of the rates for offenders who were sentenced to up to 12 months in prison;
- high compliance rates. The annual rate of recall by the Parole Board has been steady at 1 to 1.5 percent since 2003 (the rate covers both front-end and pre-parole home detention); and
- lower costs than prison. The annual cost of a person on home detention is $21,640 compared to $59,170 for a minimum-security prisoner.
These results are influenced by an element of self-selection in the home detention population.
18 The disadvantages of increasing the use of home detention are that it may:
- be at the expense of community-based sentences (net-widening) involving greater cost and accelerating offenders up the penalty scale;
- result in increased risk to the community from offenders who would otherwise be serving their sentence in prison;
- result in increased risk to the families and partners of home detainees; and
- be criticised on the basis that offenders who would otherwise have been imprisoned are perceived to be receiving a softer sentence.
Establishing home detention as a sentence
19 It is estimated that establishing home detention as a sentence in its own right will avoid 310 prison beds (in addition to the 60 already reflected in the December 2005 decisions) (see Appendix A).
20 If home detention is established as a separate sentence, it is proposed that it:
- have a maximum term of 12 months with the full sentence to be served;
- be placed in the sentencing hierarchy between imprisonment and community-based sentences, and be used only when no lesser sentence is appropriate;
- be governed by a requirement that the court should sentence an offender to home detention only if it has determined that imprisonment would otherwise have been imposed; and
- be permitted to be combined with either community work or a fine.
21 A range of changes will be required to the Sentencing Act 2002 and the Parole Act 2002 to:
- require the court to request a report on the suitability of home detention (similar to section 34 of the Parole Act 2002);
- provide for the court to grant leave for an offender to apply for re-sentencing when the offender was not sentenced to home detention because the proposed residence was unsuitable, but the circumstances have since changed;
- allow the court to set conditions to apply if an offender is sentenced to home detention (similar to sections 15 and 36 of the Parole Act 2002);
- allow the court to set post-release conditions (similar to sections 93 to 96 of the Sentencing Act 2002);
- provide for the issuing of licenses to home detainees setting out: (a) the conditions that apply while on home detention and date(s) they cease to apply; and (b) the release conditions (if any) that apply and the date or dates on which they cease to apply;
- allow a probation officer to approve emergency accommodation if the arrangement breaks down, to be followed by a recommendation to the court to approve alternative accommodation or re-sentencing if no alternative is available or the court does not approve the recommendation;
- allow a police officer to arrest, without a warrant, an offender whom the officer has reasonable grounds to believe is unlawfully at large;
- deal with breach of the sentence, including to:
- allow a probation officer to apply for an offender to be re-sentenced if the sentence of home detention is being breached and for the offender to be imprisoned while the application is being determined; and
- provide for a presumption of re-sentencing to imprisonment as the usual alternative to home detention in the event that home detention is being breached; and
- allow re-sentencing in the event of a subsequent conviction while the offender is serving a sentence of home detention.
22 The risk of net-widening (offenders who should have received a lesser sentence getting home detention) is unlikely to outweigh the benefits of the impact on the prison population. The scale of net-widening would have to be significant before it would negate the advantages of home detention as a sentence. For every offender taken from the prison population there would have to be two offenders with sentences of an equal length taken from the community-based sentence population, and this is improbable.
23 The risk of net-widening can be mitigated by:
- introducing sentencing guidelines, as proposed by the Law Commission (see Paper Eight), to establish a threshold for the use of the sentence;
- requiring a judge sentencing an offender to home detention to explicitly determine that imprisonment would otherwise have been imposed; and
- maintaining and enhancing the credibility of community-based sentences to minimise the risk of judicial use of the more serious sentence. It is proposed that a new sentence of an electronically-monitored curfew be considered as part of a review of community-based sentences (see Paper Six).
24 Making home detention a sentence and extending its use carries an increased risk of breaches, offences committed on home detention and absconding. The increased risk is a consequence of increasing the numbers of people on home detention. It may create extra work for Police, with a potential to detract from gains that would otherwise be achieved, though the volumes are likely to be small (fewer than 50 instances per year).
25 The risk of breach could be reduced by considering changes to the management of the sentence. Those on longer terms could progressively be given greater degrees of freedom to enhance re-integration into normal community life. It is proposed that the Ministry of Justice and Department of Corrections investigate the possibility that home detention include a curfew-only component. The investigation will include consideration of whether progression should be at the discretion of the probation officer, and able to be withdrawn if necessary. A decision will be required in time to ensure that any changes can be included in the legislation. Advances in electronic monitoring technology, such as those currently being tested by the Department of Corrections, may further increase the effectiveness of home detention.
26 Appendix A contains a fuller discussion of the impact on the prison population, net-widening, and the risk of increased numbers of breaches, offences on home detention and absconding. Appendix B has more detail on the policy settings that are proposed.
Impact on Māori and Pacific peoples
27 The changes proposed in this paper will affect all prisoner groups, but it is unclear whether they will have differential effects on Māori and Pacific peoples, as opposed to other ethnicities.
28 Māori and Pacific peoples are over-represented in the criminal justice system (refer to Paper Eleven). However, they are less likely to receive home detention than imprisonment, and are under-represented in the home detainee population relative to the sentenced prisoner population.
29 At the last prison census (2003), Māori comprised 39 per cent of the home detainee population and 51 percent of the sentenced prisoner population. Pacific people comprised nine percent of the home detainee population and 12 percent of the sentenced prisoner population. Europeans comprised 47 percent of the home detention population and 36 percent of the sentenced prisoner population.
30 It is not known whether the lower numbers of Māori and Pacific peoples on home detention are a function of:
- the specific offending or offending history resulting in leave being declined or an application refused;
- the absence of a satisfactory residence; or
- the absence of the consent of other occupants at a proposed residence.
31 The breach rate for Māori on home detention is higher than for other groups, at about nine percent compared to four percent. The causes for this difference are unknown. The breach rate refers to situations where the Department of Corrections lays a breach charge in Court. The charges range in seriousness. Most tend to be less serious, and this is reflected in the outcomes. Two thirds of the charges result in no penalty, 19 percent result in a fine or community work, and 15 per cent result in imprisonment. At these rates, an additional six Māori would be imprisoned for breach each year, and would add one to two prisoners to the total population.
32 The value of retrospective research into the causes of the differences in breach rates would be limited because it could not allow for the change in sentencing.
33 It is recommended that the Department of Corrections monitor the use of home detention and investigate the causes of any differences in the use of the sentence and rate of breach for Māori and Pacific peoples (as opposed to other ethnicities), and report to the Minister of Corrections by 30 June 2009 on ways to address any disparities.
Costs (home detention) and costs avoided (prison population)
Vote: Corrections
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Vote: Courts
39 Establishing home detention as a sentence will require funding for changes to the Case Management System (CMS) and to set up processes and procedures to incorporate aspects of the new sentence, including home detention reports, offences and re-sentencing. s.9(2)(f)(iv)
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40 Introducing home detention as a sentence will require changes to the Police Information Technology system National Intelligence Application (NIA) to incorporate the new sentence and update the interface with CMS. The cost is small and will be met from within Vote: Police baselines.
Impact on the Ministry of Social Development
41 Increasing the use of home detention will create an indirect cost to MSD through the benefit system. Some offenders released on home detention will be eligible for benefits, whereas they would not have been if they had been detained in a prison. The impact on the benefit system is likely to be relatively small.
Implementation and timing of change
42 Legislative change to the Sentencing Act 2002 and the Parole Act 2002 will be required.
43 The change will require operational responses from the Department of Corrections, the Ministry of Justice (Operations) and Police.
44 The Department of Corrections will:
- prepare reports on the suitability of home detention for specific offenders for the court, similar to those prepared for the Parole Board, but at a higher volume; that is, an extra 1,500 to 2,600 reports per year;
- administer an additional 265 to 465 offenders on home detention;
- work with the contractor (Chubb) to ensure there will be enough electronic monitoring equipment and services available for the additional home detainees;
- organise additional community work where it is combined with a sentence of home detention, and programmes for the additional offenders sentenced to home detention; and
- manage the necessary updates to IOMS to incorporate the new sentence.
45 The Ministry of Justice (Operations) will address:
- the impact of change on court (sentencing) processes; and
- the necessary updates to CMS to incorporate the new sentence.
46 Police will make the necessary updates to NIA to incorporate the new sentence.
47 The new sentence could be in effect from 1 July 2007, allowing for: the need to pass legislation, increase the capacity of the Department of Corrections and its contractor (Chubb) to manage the additional volume of home detainees, and make changes to Information Technology systems.
Implementation risks
48 There are four risks that can be identified at this stage:
- s.9(2)(f)(iv)
- the systems may not be ready in time to cope with the changes brought by the new sentence;
- the volumes of home detainees may be greater than predicted; and
- the volumes of home detainees and the reduction in the prison population may be lower than expected.
49 s.9(2)(g)(i)
50 The risk of systems not being ready is currently low, as there is a reasonable lead-time available to the agencies for implementation.
51 There is a risk that higher volumes of offenders will be sentenced to home detention more quickly than expected. The Department of Corrections will need to develop a contingency plan to accelerate increase in capacity if the additional population post-July 2007 shows signs of increasing more rapidly.
52 There is minimal risk of the volume being lower than expected if the proposed model for home detention is adopted because:
- the impact of the legislative change in respect of deferral of sentence commencement (for those granted leave to apply for home detention) will be reversed;
- with home detention as a sentence, no offender will begin his or her sentence with time in prison; all time will be on home detention;
- offenders who otherwise receive very short sentences of imprisonment will be able to be sentenced to home detention;
- the provisions of the Sentencing Act 2002 requiring the Court to use the least restrictive sentence will apply (there is no current equivalent provision for home detention because it is a way of serving a sentence of imprisonment, not a sentence of itself);
- the ability to combine home detention with community work or a fine will make it a more useable sentence; and
- the Parole Board has persistently reduced the approval rate despite the court granting leave against more restrictive criteria.
Further policy work required
53 As part of the more detailed policy work associated with finalising the policy and developing drafting instructions, further work will be required by the Ministry of Justice and the Department of Corrections to:
- determine the process for seeking suitability reports and sentencing of offenders who may be sentenced to home detention ; and
- investigate whether home detention could include a curfew only-component, and how it should operate.
Recommendations
54 It is recommended that the Cabinet Policy Committee:
1 agree that home detention be established as a separate sentence to take effect from 1 July 2007;
2 agree to amend the Sentencing Act 2002 and the Parole Act 2002 to give effect to the decision to establish home detention as a separate sentence;
3 note the Minister of Justice will issue drafting instructions based on Appendix B of this paper;
4 note that as part of the more detailed policy work associated with finalising the policy and developing drafting instructions, further work will be required by the Ministry of Justice and the Department of Corrections to:
4.1 determine the process for seeking suitability reports and sentencing of offenders who may be sentenced to home detention ; and
4.2 investigate whether home detention could include a curfew only-component, and how it should operate.
5 note that the impact of introducing home detention as a separate sentence is uncertain, but is estimated to avoid 310 prison beds (in addition to the decrease of 60 as a result of the Cabinet decision in December 2005);
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9 s.9(2)(f)(iv)
10 direct the Department of Corrections to monitor the use of home detention and investigate the causes of any differences in the use of the sentence and rate of breach for Māori and Pacific peoples (as opposed to other ethnicities), and report to the Minister of Corrections by 30 June 2009 on ways to address any disparities.
Hon Mark Burton
Minister of Justice
On behalf of:
Hon Annette King, Minister of Police
Hon Damien O'Connor, Minister of Corrections
Hon Rick Barker, Minister for Courts
APPENDIX A: IMPACT OF HOME DETENTION
Impact on the prison population
55 The estimated figure of 310 prison beds avoided is the mid-point of low and high estimates adjusted to take account of the 60 beds agreed in December 2005. The adjustment is necessary because the estimate was made from the same base as the December decision.
56 The low-end estimate of 265 prison beds avoided (and an increase of 265 on top of the current home detention population of 300) is the mid-point of a range of 230 to 300 predicted on the basis of the following assumptions that:
- judicial sentencing will at least result in the same rate of offenders being sentenced to home detention as were approved by the Parole Board when home detention was at its peak in 2003;
- the introduction of home detention as a sentence avoids the negative impact of the current restrictions on deferral of sentence commencement; and
- the volume of short prison sentences continues at the current levels.
57 The high-end estimate (of 465 prison beds avoided) represents an increase of 200 on the limits of the low-end range. Greater use may occur as a consequence of permitting the combination of home detention with fines or community work, and the requirement to only use imprisonment as a last resort. The additional 200 allows for an additional 10 per cent of the prison population serving sentences of two years or less, to be sentenced to home detention rather than imprisonment in the future.
58 There is uncertainty in both estimates, but significantly more uncertainty in the higher estimate. The lower estimate is based on past experience. The estimates are predictions about future sentencing behaviour and it is possible that the actual result will fall outside the range. Judges may either be more conservative in using the sentence than anticipated or use it more frequently.
59 The growth in the number on home detention will begin from the date that the necessary legislative changes come into effect. It is not clear how quickly the courts will make full use of the new sentence and reach the new population levels. Based on the change in the home detention population when it grew in 2002 and fell in 2004, the change could be rapid; it could occur within six to nine months. If the courts are slower to take up use of the new sentence it could be 18 to 24 months or longer. The uncertainty about the speed of change means that it would be prudent to expect slower growth when considering prison capacity issues, but faster growth when planning for the Department of Corrections' capacity to manage the home detention population.
60 Future volumes will also be influenced by the deployment of the 1,000 additional police, and by the proposed sentencing guidelines if these are adopted. Both of these changes are likely to increase the pool of offenders who could be considered for home detention. To the extent that any additional prosecutions that result from additional police are sufficiently serious to attract imprisonment or home detention, they are likely to be less serious and hence more likely to attract home detention (see Paper Three). Similarly, to the extent that the sentencing guidelines proposed by the Law Commission adjust the threshold for custody and result in shorter sentences, the greater the number of offenders who may be considered for home detention. These factors have been noted, but there has not been sufficient certainty to incorporate them into the estimated impact.
Risk of net-widening
61 Establishing home detention as a sentence raises a risk of net-widening. Net-widening is the risk that the new sentence will be applied to cases that would otherwise have resulted in a lesser sentence. The net-widening risk may be lower than it would have been if home detention was being introduced as an entirely new regime. However, home detention is only being modified, and judges already make the key decision about granting leave to apply for home detention.
62 The net-widening risk is also reduced by the provisions of the Sentencing Act 2002 requiring the court in sentencing to "impose the least restrictive outcome that is appropriate in the circumstances" (section 8(g)).
63 The risk of net-widening can be further mitigated by:
- introducing sentencing guidelines to establish a threshold for the use of the sentence;
- requiring a judge sentencing an offender to home detention to explicitly determine that imprisonment would otherwise have been imposed; and
- maintaining and enhancing the credibility of community-based sentences to minimise the risk of judicial use of the more-serious sentence, including considering the introduction of a new sentence of electronically-monitored curfews (refer to Paper Six).
64 The sentencing guidelines will, if the policy is introduced, cover determination of thresholds for different types of sentence. There is a tension between taking advantage of the impact of the introduction of the new sentence at 1 July 2007 and the possibility of sentencing guidelines being issued at a later date (possibly early 2009). In any event, the provisions of the Sentencing Act 2002 will still act to limit net-widening.
65 The risk of net-widening depends on the extent to which community-based sentences are perceived to be a credible alternative at the margin, where the court faces a finely-balanced choice and might default to a more-serious sentence. Paper Six in this suite of papers examines opportunities to increase the credibility of community-based sentences. The outcome of this work may mitigate net-widening. That paper includes a proposal to introduce electronically-monitored curfews as a separate community-based sentence, as a means to enhance the credibility of community-based sentences.
66 The impact of net-widening on the prison population is uncertain. In the worst case, the impact could be reduced if home detention were perceived to be more of a substitute for community-based sentences rather than imprisonment. This is unlikely, given the requirements of the Sentencing Act 2002 to impose the least restrictive sentence.
67 The scale of net-widening would have to be significant before it would negate the advantages of establishing home detention as a separate sentence. A worst case scenario was tested, involving the net-widening of home detention to include 20 percent of offenders sentenced to supervision and one-third of offenders who receive 300 or more hours of community work. This amount of net-widening would increase the home detention population by 183 and cost by about $5million. The additional cost is less than the difference between costs avoided by avoiding prison beds and the cost of achieving the reduction.
Risk of increased breach, absconding and offending on home detention
68 An increase in the number of offenders on home detention will mean an increase in the number of breaches, instances of absconding and offending on home detention. Concern has been expressed that the risk may be greater in future because the additional offenders pose a higher risk. There are reasons for thinking that any effect will be small.
69 First, the base increase comes from restoring home detention to the levels it was at in 2003. The rate of recall to prison when the home detention population was at the higher levels was no different to the recall rate that has been experienced at the lower levels. This indicates that the level of risk does not change rapidly.
70 Second, the Department of Corrections has previously found that about 400 prisoners serving short sentences have an assessed risk less than or equal to the average risk of a home detainee. It is reasonable to believe that this will be true on a continuing basis. To the extent that this group provides at least a portion of the growth in the home detention population, there would be no increase in the risk.
71 Third, home detention will be available for those serving very short sentences (e.g. offenders convicted of a breach of community work) who are low risk.
72 Nevertheless, any increase in the number of breaches, absconding and offending poses a challenge. It may create extra work for Police with a potential to detract from gains that would otherwise be achieved by Police. Depending on the severity of offending it is likely to result in more reporting of offences in the media and an appearance that the sentence is less effective. This will have an impact on perceptions of public safety and consequently on public confidence. An effective communications response will be required to ensure that any perception of change is properly informed and understood.
73 An increase in the time spent on home detention may result in more breaches as the pressure of the sentence on the individual increases. This could be mitigated by adding a new final stage to the sentence, moving from full-time detention with limited approved absences for specific purposes such as work or programmes, to a curfew (of fixed hours) with freedom of movement outside those hours. This might reduce the risk of breach for those serving longer terms, assist with re-integration, and encourage sentence compliance. The feasibility of such a change should be investigated.
74 Advances in electronic monitoring technology being tested by the Department of Corrections may increase the effectiveness of the sentence. The potential capability of GPS technology to create a record of a home detainee's movements may serve to deter would-be offenders. The expectation that electronic monitoring technology, and advances to it, will have a positive benefit in terms of compliance is consistent with general theories about deterrence. The probability of detection acts as a real deterrent, whereas penalties per se have little impact.
APPENDIX B: POLICY DETAILS
Maximum term
1 It is proposed that the maximum term for home detention be set at 12 months with the full sentence to be served. This is effectively the same maximum as present - 24 months with automatic release at half the sentence. The 12 month maximum governs a single term imposed on an offender, including cumulative and concurrent sentences.
2 The proposal to set the maximum length at 12 months with the full sentence to be served anticipates the recommendations on sentencing expected to be made by the Law Commission. A longer term than 12 months raises risks in relation to the impact of the sentence on families and other occupants of homes where offenders are detained. The longer the term, the more difficult it becomes to maintain compliance with the sentence.
Position within the sentencing hierarchy
3 Sections 11 to 18 of the Sentencing Act 2002 fix the position of the different sentences within the sentencing hierarchy. Home detention as a sentence should be positioned at an intermediate position between imprisonment and community-based sentences (see Paper Six). The practical effect of electronic monitoring on home detention is to incapacitate the offender for the full term of the sentence. While it does not impose physical barriers like prison, it has proven to be very effective in limiting offenders. Home detention sits closer to imprisonment than it does to community-based sentences. Section 36(5)(a) of the Parole Act 2002 should be carried forward to make it clear that an offender is not in custody while on home detention.
4 Sections 15 and 16 of the Sentencing Act 2002 provide the courts with guidance on when to use community-based sentences and imprisonment respectively. In simple terms both sections provide that the sentence should only be used where no lesser sentence would be appropriate. An equivalent provision will be required in respect of home detention; it will be an important measure to limit the risk of net-widening.
5 The use of home detention as a sentence should be governed by a requirement that the court should only sentence an offender to home detention if it has determined that imprisonment would otherwise have been imposed. This provision would both limit net-widening and reinforce the position of home detention as a sentence nearer imprisonment.
Permitted combinations of sentence
6 Establishing home detention as a separate sentence raises a need to determine how it may be used in conjunction with other sentences. Because it is currently a means of serving a sentence of imprisonment, it is limited by the permitted combinations that apply to imprisonment. Imprisonment cannot be used in conjunction with a community-based sentence and can only be used in conjunction with a fine where the particular enactment specifically provides for it.
7 Section 12 of the Sentencing Act 2002 provides that the sentence of reparation may be imposed in relation to any particular offence, on its own or in addition to any sentence. This will apply to a sentence of home detention; there is no reason to create an exception.
8 It is proposed that home detention will be able to be used in conjunction with either community work or a fine. The combination with community work has two advantages; it strengthens the sentence and it means that the offender is making reparation to the community as well as being punished. It also has positive effects for the offender and the community by improving the offender's work disciplines and habits. Combination with a fine is feasible if the offender is employed.
9 The conditions applicable to home detention are similar to those associated with a sentence of supervision. Home detention therefore should not be able to be combined with supervision.
10 It would also be possible to allow the combination of sentences of home detention with short sentences of imprisonment. The proposed sentence and parole reforms allow for a form of combination for longer sentences by providing for the use of electronic monitoring as a condition of parole. The proposed parole regime will not apply to sentences of less than two years; the offender will serve the full sentence. It would be possible to allow an offender to be sentenced to a combination of a short term of imprisonment and home detention, provided that the total was not more than two years and the home detention component was not more than 12 months.
11 There would be difficulties with a combination of imprisonment and home detention. First, sentencing in this way pre-supposes the existence of a suitable residence and occupant agreement, whereas circumstances may change. Second, the key advantages of home detention in terms of avoiding the negative dislocating effects of imprisonment will not be present. Third, such an approach may net-widen, as there is a risk that a term of home detention may be added to a term of imprisonment without sufficient discounting of the term of imprisonment. This effect may be able to be minimised by the introduction of the sentencing guidelines proposed by the Law Commission. On balance it is not recommended that home detention and imprisonment be able to be combined in sentencing.
Home detention reports
12 Provision will be required for the court to call for a report on the suitability of home detention (similar to section 34 of the Parole Act 2002). A suitability report will always be required because of the need to determine that there is a suitable residence and to obtain the other occupants' consent.
Re-sentencing where home detention is not used due to an unsuitable residence
13 Under the current regime, if an application for home detention is declined because the residence is unsuitable, a subsequent application can be made if circumstances change. It would be sensible to enable a similar arrangement to apply in future in cases where the court is minded to sentence to home detention, but imposes a sentence of imprisonment because the residence is unsuitable. In these cases the court could be enabled, at the time of sentencing, to grant the offender leave to apply for re-sentencing if a new residence becomes available or if the circumstances making the original residence unsuitable change. The re-sentencing would have to take into account the proportion of the sentence already served.
Conditions of home detention
14 Provision will be required for the court to be able to set conditions to apply if an offender is sentenced to home detention. Similar provisions to those set out in sections 15 and 36 of the Parole Act 2002 will be required. Section 36 of the Parole Act 2002 sets out standard conditions and section 15 addresses special conditions.
Post-release conditions
15 Offenders who are currently serving sentences of imprisonment on front-end home detention can be subject to post-release conditions. In 2004/05 565 front-end home detainees progressed to post-release conditions. There were 1,212 new home detainees in the year.
16 It is important that probation officers continue to be able to work with offenders as they transition from home detention into a fully unrestricted environment. It is also important that offenders are able to be kept under supervision when the length of home detention is not long enough for the offender to complete a programme or other special condition requirement. Sections 93 to 96 of the Sentencing Act 2002, which govern conditions on release for offenders sentenced to imprisonment for a short term, currently apply to front-end home detainees. The Act should be amended for like provisions to apply to home detention in the future, enabling the court to impose post-release conditions when it is appropriate to do so. The use of post-release conditions should be made consistent with those for offenders serving short sentences of imprisonment. The Law Commission's proposed sentencing and parole reforms provide that the court be able to impose conditions for a minimum of six months and a maximum of 12 months.
Breach of home detention
17 Separate offence provisions need to be included in the Sentencing Act 2002 to deal with breaches of a sentence of home detention. The provisions should be modeled on sections 71 and 72 of the Parole Act 2002. Section 71 deals with breach of conditions and has a maximum penalty of 12 months imprisonment or a fine of $2,000. Section 72 deals with refusal of entry to a home detention residence and has a maximum penalty of three months imprisonment or a fine of $5,000.
Arrest powers of police officers
18 Section 73 of the Parole Act 2002 provides that a police officer may arrest, without a warrant, an offender whom the officer has reasonable grounds to believe is unlawfully at large. This provision will need to be replicated in the Sentencing Act 2002 for breaches of home detention.
Licence
19 Provision will be required for the issuing of licences to home detainees, setting out: (a) the conditions that apply while on home detention and the date(s) they cease to apply, and (b) the release conditions (if any) that apply and the date(s) on which they cease to apply. The provisions can be modelled on section 53 of the Parole Act 2002.
Provisions to apply if home detention breaks down
20 From time to time the home detention arrangement will break down. For example, rental accommodation may be lost or other occupants of the residence may withdraw their consent for the home detainee to live with them. Provisions will be required to deal with these situations. The current law allows for the probation officer to approve emergency accommodation (section 36(3)(c)(v) of the Parole Act 2002) and to then return to the Parole Board with a recommendation to approve alternative accommodation, or to recall the offender to prison (if no suitable alternative accommodation can be found). Similar provisions will be required, except that recall will not apply and instead provision will be required for the court to re-sentence the offender if no suitable alternative accommodation is proposed. The re-sentencing would have to take into account the proportion of the sentence already served. Maximum and minimum time periods governing the appearance of the offender in court may need to be established. The court would need to determine the custodial status of the offender.
Impact of subsequent convictions
21 Section 99 of the Sentencing Act 2002 currently addresses the effect of a subsequent conviction on home detention. Similar provisions will be required in future. The Act sets out presumptions of how to deal with the conviction depending on whether the offence took place before or after the conviction for the offence to which home detention relates. Because home detention will be a separate sentence, the court will need to be given the power to re-sentence the offender taking into account the proportion of the sentence already served. In the absence of an ability to recall an offender to prison, the court will be provided with the power to re-sentence an offender on home detention who is convicted of a subsequent offence while serving home detention.
Applications for re-sentencing
22 The Parole Act 2002 currently provides a capacity for applications to be made for home detainees to be recalled to prison and for the arrangements to apply while the application is being determined. Similar provisions will be required in future but will need to be re-cast as applications for re-sentencing. It will not be sufficient to rely on the capacity to charge home detainees with breach of the sentence to manage all situations in which an offender is in breach. There may be safety considerations that demand more immediate action. The necessary time for a defendant to defend a charge may also make ordinary criminal court action ineffective; the sentence may be completed before the charge is determined. The provisions for re-sentencing on application should be modelled on the recall provisions in sections 60 to 66 of the Parole Act 2002.
23 It is proposed that a presumption of re-sentencing to imprisonment be provided as the usual alternative to home detention in the event that the sentence is being breached. If it is not, there is a risk that home detention will lose its integrity and not be seen as a serious sentence. Currently, the knowledge that they can be recalled to prison to serve their sentence is a good motivation tool for offenders, and contributes to the good results achieved. Such a provision could be modelled on the approach currently set out in section 99 of the Sentencing Act 2002 that governs the effect of a subsequent conviction on home detention. Maximum and minimum time periods governing the appearance of the offender in court may need to be established. The court should be able to remand the offender in custody pending re-sentencing if appropriate.
Repeal of the leave provisions
24 The provisions in the Sentencing Act 2002 governing the granting of leave to apply for home detention will be repealed.
Clean Slate
25 Establishing home detention as a separate sentence has implications for the Clean Slate regime. Offenders who have been sentenced to imprisonment are not eligible for a clean slate. A sentence of home detention will not be a sentence of imprisonment and will therefore be eligible for a clean slate. No legislative change is required to bring this about.
REGULATORY IMPACT STATEMENT
Statement of the nature and magnitude of the problem and the need for government action
The prison population has increased by 23 percent in the six years to 2005. Twenty percent of that increase comprised people serving sentences of less than two years. At the same time, reduced use of home detention has contributed between 150 to 200 of the increase in the sentenced prison population since October 2004. This reduction has been driven by:
- legislative restrictions on the circumstances in which a prison sentence can be deferred pending an application for home detention; and
- a tightening of the approach taken by the Parole Board to determining applications for home detention.
The current rate of increase in the prison population has consequential fiscal costs of increasing the prison infrastructure and broader social costs associated with imprisonment. Without government action, the prison population is forecast to exceed capacity by 2010, and possibly earlier.
At the same time, prison sentences have social costs. Prison sentences sever offenders' ties with families, employment, and accommodation. This in turn poses challenges for offenders' effective re-integration into society at the end of their prison sentences.
Statement of the public policy objectives
The key objective is to reduce the projected growth in the prison population by providing alternatives to prison for offenders who would otherwise receive a short sentence of imprisonment.
Statement of feasible options for achieving the desired objectives
Status quo
Offenders sentenced to a custodial sentence of two years or less may, if granted leave by the court, apply to serve all or part of that sentence on home detention. If home detention is granted, offenders serve a custodial sentence at home. Their compliance is monitored electronically and by probation officers.
There are restrictions on the circumstances in which the commencement of a sentence can be deferred pending an application for home detention. If sentence commencement is not deferred, an offender may serve a considerable proportion of their sentence in custody by the time their applications for home detention is heard. This limits the potential impact of home detention on the prison population.
Feasible regulatory options include:
- Re-introducing suspended sentences - under the suspended sentence regime, judges imposing a short sentence (between six months and two years) could suspend it for up to two years. The sentence could be activated if the offender was convicted of another offence during this period. Research on previous use of suspended sentences found they increased the prison population, with no reduction in re-offending. Therefore, this option is not likely to achieve the objective.
- Prohibiting the use of terms of imprisonment of six months or less - this option would involve decisions on an offence-by-offence basis either to remove imprisonment as a maximum penalty, or to increase the maximum penalty above six months. The potential benefits of this option do not outweigh its risks. Short sentences serve an important purpose, particularly where offenders are unlikely to comply with a non-custodial sentence, or are being sentenced for serious or repeated breaches of community-based sentences. This option would leave a gap in the sentencing structure and could result in the imposition of longer prison sentences, which could add to the prison population.
- Removing imprisonment as the maximum penalty for selected offences - this option would involve decisions on an offence-by-offence basis to remove imprisonment as a maximum penalty. The potential benefits of this option do not outweigh its risks. Short sentences serve an important purpose, particularly where offenders are unlikely to comply with a non-custodial sentence, or are being sentenced for serious or repeated breaches of community-based sentences. This option would leave a gap in the sentencing structure and could result in the imposition of longer prison sentences, which could add to the prison population.
Preferred option : establish home detention as a sentence in its own right
The preferred option is to establish home detention as a sentence in its own right, with a maximum term of 12 months with the full sentence to be served. This sentence will be positioned between imprisonment and community-based sentences, and be used only when no lesser sentence would be appropriate. The sentence will be able to be combined with either community work or a fine.
The preferred option will address the problem outlined above by avoiding the need for offenders to be sentenced to imprisonment before home detention can be considered. It thus avoids the need for offenders to apply for home detention, and the potential for offenders to serve some of their sentence in prison before their applications for home detention is heard. The preferred option will also allow home detention to be combined with fines or community work, thus increasing the circumstances in which the sentence can be used.
Statement of the net benefit of the proposal, including the total regulatory costs and benefits, and other feasible options
Government
The preferred option is expected to avoid around 310 prison beds. It also has unquantifiable benefits arising from the positive impacts that accrue from the use of home detention, including:
- support for the re-integration and rehabilitation of offenders - enabling employment, accommodation and family relationships to be maintained;
- rates of re-conviction and re-imprisonment that are only one-quarter to one-third of the rates for offenders who are sentenced to up to 12 months in prison;
- high compliance rates. The annual rate of recall by the Parole Board of those on home detention has been steady at 1 to 1.5 percent since 2003.
The costs of the proposal are less than the expected costs avoided due to a decrease in the prison population. The Department of Corrections estimates that it would otherwise need to seek funding for an additional 310 beds for delivery mid-2009 with costs in the order of $153 million capital and $47 million operating over the forecast period.
The proposal has the following fiscal costs for the Department of Corrections, the Ministry of Justice and New Zealand Police.
Vote: Corrections
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Vote: Courts
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Vote: Police
The introduction of home detention as a sentence will generate a requirement for one-off funding for changes to the Police Information Technology system National Intelligence Application to incorporate the new sentence and update the interface with CMS. The cost is small and will be met from within Vote: Police baselines.
26 Impact on the Ministry of Social Development
27 Increasing the use of home detention will create an indirect cost to MSD through the benefit system. Some offenders released on home detention will be eligible for benefits, whereas they would not have been if they had been detained in a prison. The impact on the benefit system will be relatively small.
Offenders
The preferred option has benefits for eligible offenders, who will be able to serve custodial sentences at home. This will enable their employment, accommodation,and family relationships to be maintained. The rates of re-conviction and re-imprisonment for offenders on home detention are only one-quarter to one-third of the rates for offenders who are sentenced to up to 12 months in prison.
Society
The preferred option has benefits for society, including:
- support for the re-integration and rehabilitation of offenders - enabling employment, accommodation, and family relationships to be maintained;
- rates of re-conviction and re-imprisonment that are only one-quarter to one-third of the rates for offenders who were sentenced to up to 12 months in prison;
- high compliance rates. The annual rate of recall by the Parole Board has been steady at 1 to 1.5 percent since 2003;
- lower costs than prison. The annual cost of a person on home detention is $21,640 compared to $59,170 for a minimum-security prisoner.
These positive results are influenced by an element of self-selection in the home detention population.
Making home detention a sentence and extending its use carries an increased risk of breaches, offences committed on home detention and absconding. The increased risk is a consequence of increasing the numbers of people on home detention. Based on current experience the volumes are likely to be small. The risk of breach can be reduced through the management of the sentence.
There are no business compliance costs.
Statement of consultation undertaken
The proposals set out in this paper were developed by an inter-agency group, comprising officials from Child Youth and Family, the Department of Corrections, the Ministry of Justice, the Police, the Department of Prime Minister and Cabinet, the Ministry of Social Development, the State Services Commission, and Treasury. The inter-agency group consulted with officials from the Ministry of Health, Te Puni Kōkiri, the Ministry of Women's Affairs, the Ministry of Pacific Island Affairs, and Housing New Zealand Corporation.