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Paper 16: Miscellaneous Amendments to Criminal Justice Legislation

Proposal

  1. I propose some miscellaneous amendments to the Parole and Sentencing Acts 2002 be included in the Criminal Justice Remedial Matters Amendment Bill. The amendments will improve the operation of the extended supervision regime under the Parole Act 2002 and clarify how release conditions are imposed under the Sentencing Act 2002.

Executive summary

  1. I propose that the following amendments be included in the Criminal Justice Remedial Matters Amendment Bill:
  • four additional standard conditions for extended supervision orders;
  • including an adjournment period by consent in section 107G(5)(b) of the Parole Act 2002;
  • a detention provision under the Parole Act 2002 for the purposes of providing a copy of an extended supervision order to an offender;
  • a provision for special release or detention conditions to continue after the commencement of an extended supervision order in certain circumstances;
  • clarification of the commencement of an extended supervision order when an offender is remanded in custody;
  • clarification of the commencement of extended supervision orders when an offender receives further sentences of imprisonment;
  • clarification of the provisions in the Sentencing Act 2002 that provide for standard and special release conditions for short-term sentences.
  1. The amendments will improve the ability of justice agencies – the Community Probation Service in particular - to manage offenders, including high-risk child sex offenders.

Background

  1. The Criminal Justice Remedial Matters Amendment Bill (the Bill) is an omnibus bill that is on the 2006 legislative programme as priority two (must be passed in 2006). The Bill’s main purpose is to implement the legislative proposals arising from the Effective Interventions project to develop measures for managing the increasing prison population and reducing criminal offending.
  1. The amendments I propose do not arise from the Effective Interventions project. However, they are consistent with the objectives of the Effective Interventions project and address related issues, such as the efficiency of the justice system. The proposals are unlikely to slow the passage of the Bill.

Comment

Extended Supervision Orders

  1. Extended Supervision Orders (ESOs) are imposed by the courts on offenders who have been imprisoned for sexually offending against children and who are assessed as continuing to pose a high risk of re-offending. The proposals in this paper strengthen the management of these offenders.

A. Additional standard conditions for extended supervision

  1. I propose amending the Parole Act 2002 to provide four new standard conditions for those offenders who are subject to an ESO. These conditions are:

a) The offender is not to associate or otherwise have contact with any person under the age of 16 years unless under the direct supervision of an informed adult who has been approved in writing by the probation officer.

b) The offender is not to have contact or otherwise associate directly or indirectly with the victims of their offending without the prior written consent of the probation officer.

c) The offender must obtain the written permission of the probation officer before changing their address.

d) The offender must obtain the written permission of the probation officer before changing their employment.

  1. This amendment should reduce the workload of the Parole Board. Conditions (a) and (b) are currently imposed as special conditions in 99% of extended supervision cases. Making them part of the standard conditions of every ESO should reduce the number of applications that need to be made to the Parole Board for special conditions.
  1. Conditions (c) and (d) could be seen as impinging on the rights of offenders. However, some addresses and employment are clearly inappropriate for offenders who pose a high risk to the community.

B. Adjournment period in the Parole Act 2002

  1. I propose that the Parole Act 2002 be amended to allow proceedings for the hearing of an application for an ESO to be adjourned with the consent of both parties.
  1. Section 107G(5)(b) of the Parole Act 2002 currently states that where offenders are being held in custody pending their ESO hearing “the period of adjournment must not exceed 8 days”. The courts appear to be treating the 8-day adjournment period as unable to be extended by consent and unable to be waived. The result is that offenders are being brought before the court every 8 days, even when the hearing will again be adjourned.
  1. A similar provision in the Summary Proceedings Act allows proceedings to be adjourned for longer than 8 days so long as both parties consent.
  1. The omission of a consent provision appears to have been a drafting oversight. This proposal has the potential to help the courts avoid unnecessary hearings that involve considerable expense and valuable court time.

C. Detention provision under the Parole Act 2002 for purpose of providing copy of ESO

  1. I propose that the Parole Act 2002 be amended to provide that offenders can be detained for up to two hours so that a copy of their ESO can be prepared and given to them.
  1. Similar provisions currently exist in the Sentencing Act 2002 for the purposes of serving offenders with the conditions of a community-based sentence or a non-association order.
  1. This amendment will resolve the problem of offenders who are not in detention leaving the court while an ESO is being prepared. These offenders may not receive notice of the conditions they are subject to, for example, the requirement to report immediately to a probation officer.

D. Provision for special conditions of release or detention to continue after the commencement of an ESO in certain circumstances

  1. I propose that the Parole Act 2002 be amended to state that where an offender is subject to special conditions of release or detention at the time an ESO commences, those conditions continue in force until special extended supervision conditions are imposed by the Parole Board, or a decision is made not to impose them.
  1. An offender‘s ESO will sometimes commence before the Parole Board has had a hearing to consider imposing special extended supervision conditions. When an ESO comes into force it replaces any special conditions of release or detention. However, if the Parole Board has not had a hearing there will be a delay before special extended supervision conditions are imposed. An offender is only subject to the standard conditions in the interim.
  1. The proposed amendment will help manage the risk of high risk offenders who are returning to the community by ensuring that they are under similarly strict conditions from the date of their release from prison until the date any special conditions of the ESO are imposed by the Parole Board.

E. Commencement of an ESO when an offender is remanded in custody

  1. The Parole Act 2002 is not clear about when an ESO should commence for those offenders who have passed their statutory release date but have been remanded in custody for some other reason. I propose that the wording in the Act be amended to make clear when an ESO comes into force in these circumstances. The following italicised words should be inserted into the Parole Act 2002.

An ESO comes into force:

a) if the order is made while the offender is detained under a sentence of imprisonment or liable to be recalled, on the offender’s statutory release date.

b) …

  1. This amendment clarifies that an ESO comes into force for offenders remanded in custody (but already past their statutory release date) on a date set by the Court.

F. Reactivation of Extended Supervision Orders following further sentences of imprisonment

  1. The Parole Act 2002 does not operate effectively when offenders subject to an ESO are sentenced to further finite prison sentences. The following proposals should ensure that these offenders are managed consistently with their high-risk status when re-released from prison.
  • (1) Offenders sentenced to a short-term sentence (24 months or less) are sometimes released subject to special release conditions. These conditions can continue to apply after the offender’s statutory release date. However, the offender’s ESO will restart at their statutory release date. The result is that release conditions can run concurrently with extended supervision conditions. This is highly undesirable as the two sets of conditions may be inconsistent. I propose that the Parole Act 2002 be amended to provide that if an offender subject to an ESO is released at their statutory release date any release conditions are deemed to be discharged.
  • (ii) The Parole Act 2002 provides for time to start running on an ESO on the date an offender is released from prison. However, the ESO conditions are not reactivated until the offender’s statutory release date. This is an unintended consequence of the way the provisions are worded. I propose that t he Parole Act 2002 be amended to provide that when an offender subject to an ESO is serving a sentence of imprisonment, the time and conditions of the ESO do not restart until their statutory release date. The offender will be subject to parole conditions if he or she is released before the statutory release date.
  • (iii) The Parole Act 2002 is silent on the nature and length of the parole conditions that the Parole Board should impose if it releases an offender on parole who is subject to a suspended ESO. I propose that the Parole Act 2002 be amended to provide that if the Parole Board releases an offender on parole who is subject to a suspended ESO, it must take into account the nature of the existing extended supervision conditions when setting parole conditions. The parole conditions should apply until the statutory release date (when the extended supervision conditions are reactivated).

Amendment to the Sentencing Act 2002

G. Standard and special conditions for short-term sentences

  1. I propose an amendment to the Sentencing Act 2002 to clarify that standard conditions should be in place for the same length of time as special conditions. The proposed amendment will improve the ability of the Community Probation Service (CPS) to manage offenders who are released from prison subject to special conditions.
  1. Offenders subject to short-term sentences are often released subject to standard and special release conditions, such as compulsory attendance at drug and alcohol counselling. However, the courts have held that the wording in the Sentencing Act 2002 means that standard conditions expire on the sentence expiry date, while special conditions can continue to apply for a further six months. This was not the intention of the provision.
  1. This situation has created operational difficulties for the CPS: once the standard conditions expire, CPS no longer has any ability to direct regular reporting or to require the offender to advise of changes to employment or address. If contact with the offender is subsequently lost, CPS cannot monitor an offender’s compliance with special conditions.

Consultation

  1. Treasury, the Department of Corrections, the Law Commission, the New Zealand Parole Board and the Police have been consulted and their views are expressed in this paper.

Financial implications

  1. Cabinet has agreed to additional funding for the proposals that are being implemented in the Bill [Cab Min (06) 27/3A refers]. If the proposals in this paper are implemented as part of the Bill there will be no additional costs to those already agreed.

Human rights

  1. This paper is still being considered by the Ministry of Justice Human Rights/ Bill of Rights team for consistency with the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993.

Legislative implications

  1. Legislation is required to implement these proposals. The Bill has priority 2 on the legislative programme (must be passed in 2006).

Regulatory impact and business compliance cost statement

  1. A Regulatory Impact Statement is not required as the proposals are of a minor or machinery nature and do not substantially alter existing arrangements.

Publicity

  1. No publicity is planned for this paper

Recommendations

The Minister of Justice recommends that the Committee:

  1. note that the Criminal Justice Remedial Matters Amendment Bill is an omnibus bill that amends justice legislation.
  1. note that the Criminal Justice Remedial Matters Amendment Bill has priority two on the legislative programme.
  1. note that the proposals in this paper do not involve additional costs to those already agreed as part of the Criminal Justice Remedial Matters Amendment Bill.
  1. agree to the following legislative amendments:

Extended supervision orders

  • (i) An amendment to the extended supervision provisions of the Parole Act 2002 to include four additional standard conditions for extended supervision relating to restrictions on: mixing with people under 16; contact with victims; the ability to move address; and, the ability to change employment;
  • (ii) An amendment to the Parole Act 2002 to allow the 8-day adjournment period in section 107G(5)(b) to be extended with the agreement of both parties;
  • (iii) An amendment to the Parole Act 2002 to allow an offender to be detained in custody for the purposes of providing a copy of an extended supervision order;
  • (iv) An amendment to the extended supervision provisions of the Parole Act 2002 to allow special release or detention conditions to continue after the commencement of an extended supervision order in certain circumstances;
  • (v) An amendment to the Parole Act 2002 to clarify when an extended supervision order comes into force for offenders on custodial remand;
  • (vi) Amendments to the Parole Act 2002 to provide that when a person subject to an extended supervision order is released from a short term sentence of imprisonment at their statutory release date, any release conditions are deemed to be discharged;
  • (vii) Amendments to the Parole Act 2002 to provide that when a person subject to an extended supervision order is serving a sentence of imprisonment, the order is suspended and time does not start to run on the order, nor the conditions reactivated, until the person’s statutory release date;
  • (viii) Amendments to the Parole Act 2002 to provide that when the Parole Board releases a person on parole who is subject to a suspended extended supervisions order, it must take into account when setting the release conditions the nature of the existing extended supervision conditions; and, the release conditions must extend until the statutory release date; and,

Standard and special conditions for short-term sentences

  • (ix) An amendment to the Sentencing Act 2002 to provide that special conditions cannot run past the expiry of standard conditions and to allow for standard and special conditions to be able to apply for up to six months following an offender’s statutory release date;
  1. Agree that amendments agreed to in recommendation 4 be included in the Criminal Justice Remedial Matters Amendment Bill.
  1. Direct the Ministry of Justice to develop drafting instructions for Parliamentary Counsel Office to give effect to the amendments agreed to in recommendation 4.

Hon Mark Burton
Minister of Justice
 / /2006