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Paper 12: Reform of Community-Based Sentences and Related Matters

Proposal

1. This paper reports back on the reform of community-based sentences and related matters, following from Cabinet's consideration of the Effective Interventions package in July 2006 [CAB Min (06) 27/3A refers]. Part one of the paper seeks Cabinet's approval for proposed reform of community-based sentences previously agreed to in principle, including funding and legislative decisions required to implement the reforms. Part two reports back on issues relating to community work, disqualification from driving and driving programmes.

Executive Summary

2. Strong and credible community-based sentences, combining elements of punishment, rehabilitation and reparation, are critical to an overall strategy to reduce the prison population. As part of its consideration of the Effective Interventions package in July 2006, Cabinet agreed in principle to a proposed package of reform for community-based sentences, subject to further development work and consultation. Cabinet also requested further work on a range of related matters, including disqualification from driving and other driving issues [CAB Min (06) 27/3A refers].

3. Part one of this paper seeks Cabinet's approval to implement a final package of reform for community-based sentences. This package is largely unchanged from that considered by Cabinet in July 2006. The proposals in the package aim to increase the credibility and availability of community-based sentences so that these sentences will be used more frequently and fewer offenders will be sentenced to imprisonment.

4. The major proposals in the package are the inclusion of a hierarchy of sentences in the Sentencing Act 2002 and the introduction of two new community-based sentences. The hierarchy will assist judges in making sentencing decisions by clarifying the status of various sentences in relation to imprisonment and other sentences. The two new community-based sentences are community detention (previously referred to as electronically-monitored curfew) and intensive supervision. These two sentences involve a greater restriction of freedom and level of engagement, monitoring or supervision of an offender than any existing community-based sentence and are intended to provide a credible alternative to imprisonment.

5. It is proposed that intensive supervision and the new sentence of home detention[1] include a special condition that allows the judge to impose judicial monitoring of an offender's compliance with the sentence in appropriate cases. This new process is intended to enhance and maintain judicial confidence in community-based sentences.

6. Officials have consulted with the District Court judiciary on the proposals. There was broad support amongst the consulted judges for the proposed reforms, subject to the need to ensure the proposals were adequately resourced. However, in the time available, it was only possible to consult with a small number of judges (27 of approximately 130 District Court judges). Therefore, the views expressed during the consultation process may not be representative of the District Court bench.

7. Part two of the paper deals with a number of related matters where Cabinet requested further reports, as follows:

Background

8. Strong and credible community-based sentences, combining elements of punishment, rehabilitation and reparation, are critical to an overall strategy to reduce the prison population. Work undertaken as part of the Effective Interventions project identified opportunities to strengthen the credibility of community-based sentences and increase the community-based options available to judges.

9. In July 2006, Cabinet agreed in principle to a proposed package of reform for community-based sentences [CAB Min (06) 27/3A, para 62 refers] and the inclusion of an explicit sentence hierarchy in legislation [CAB Min (06) 27/3A, para 54 refers]. This paper seeks Cabinet's approval for these proposals, which have been subject to further development and consultation, including consultation with the judiciary as authorised by Cabinet [CAB Min (06) 27/3A, para 59 refers].

10. This paper also includes reports on two related matters: (a) the further work requested by Cabinet relating to potential enhancements of existing community-based sentences and penalties for driving while disqualified [CAB Min (06) 27/3A, para 57 refers]; and (b) a report from the Department of Corrections on the design, targeting, costs and likely impact on re-offending of driving skills and defensive driving courses for offenders in the community [CAB Min (06) 27/3A, para 86 refers].

Part 1: Proposed Reform of Community-Based Sentences

Introduction

11. The proposals presented in this paper largely confirm those proposals Cabinet previously agreed to in principle in July 2006. These proposals aim to increase the credibility and availability of community-based sentences, so that these sentences will be used more frequently and fewer offenders will be sentenced to imprisonment. Cabinet approval is needed to authorise the introduction of legislation necessary to implement these reforms.

Sentencing Hierarchy

12. We seek confirmation of Cabinet's agreement in principle to the inclusion of a clear hierarchy of sentences in the Sentencing Act 2002. The proposed hierarchy will address concerns about a lack of clarity about the severity of various sentences and how each sentence compares to imprisonment and to each other. The hierarchy is based on the principle that restriction of freedom, and the level of engagement, monitoring or supervision of an offender, increases as the offender moves up the hierarchy.

13. The hierarchy, which is presented in Appendix A, includes the following key components:

14. The inclusion of the hierarchy may impact on other sections of the Sentencing Act 2002 that identify the purposes and principles of sentencing, and the purposes of various sentences. These sections are being reviewed to reflect the underlying intention of the hierarchy. We therefore seek Cabinet's approval for any necessary consequential amendments to the Sentencing Act in light of the hierarchy.

New Community-Based Sentences

Community Detention (Electronically-Monitored Curfew)

Purpose/focus of community detention

15. We propose that a new sentence of community detention be introduced. Community detention, which was referred to as electronically-monitored curfew in the previous paper [POL (06) 174 refers],[3] will be targeted at offenders for whom there is a demonstrable pattern to their offending. This includes, for example, offending that occurs at particular times of the day or on particular days, as is the case with some nuisance drivers and property offenders. However, the sentence will also be available for offenders who require a more punitive or restrictive sentence, short of home detention or imprisonment (for example, as punishment for a breach of community work).

16. Community detention is primarily punitive in nature and aims to punish the offender and limit the opportunity to offend. It does not have a rehabilitative element. The essence of community detention is that offenders will be required to remain at a specified address for defined periods; they are at other times free to carry on their normal activities. This is the opposite of home detention, where offenders are required to stay home at all times unless there is specific approval for them to be absent for specified activities.

Electronic monitoring

17. Offenders subject to community detention will be required to undergo electronic monitoring, which indicates their presence at a specified address. The monitoring equipment, which will not allow more general tracking, will be removed and reattached where this is feasible and reasonable. However, it will often be impractical to remove and re-attach monitoring equipment throughout the sentence. It is proposed that monitoring information will only record periods covered by the curfew order, to ensure compliance with the Privacy Act 1993. Compliance with curfew orders will usually be monitored retrospectively. Electronic records will be reviewed rather than a probation officer or contracted security officer checking on an offender's presence at a specified address. The nature a potential size of the target group means it is not considered necessary or cost-effective to actively monitor offenders on community detention. Breach of the sentence will constitute an offence as discussed below.

Curfew address

18. A critical element of community detention will be the availability of a suitable curfew address. An assessment of suitability includes, for example, the safety and welfare of any other residents if the offender is serving the curfew at home. The reliance on the availability of a suitable address raises the possibility that Māori and Pacific offenders may be disadvantaged in accessing community detention, particularly if the curfew address is restricted to a residence. Such a restriction may also create difficulties for other offenders, for example, those in a flatting situation who may face pressure from other flatmates to break the curfew. It is therefore proposed to extend the concept of a curfew address beyond an offender's residence to include, for example, a marae or family member's home.

Statutory framework

19. We propose that the statutory framework for community detention include the following elements:

Consequential changes to the Parole Act 2002

20. The Parole Act 2002 was amended in 2004 to enable the electronic monitoring of prisoners released on parole. Experience with these provisions has identified a number of gaps and problems with terminology. For example, there is no reference in the parole provisions to the safety, welfare and consent of other residents, or provision for the offence of refusing entry to a probation officer. These issues have been taken into account in developing the community detention proposal. We propose to amend the provisions in the Parole Act 2002 relating to the electronic monitoring of paroled offenders to be consistent with the proposed community detention provisions in all relevant respects.

Intensive Supervision

Existing supervision sentence

21. An unintended consequence of changes to supervision made in the Sentencing Act 2002 was a significant drop in the proportion of offenders receiving this sentence. In 2001, 3.5% of convicted cases resulted in a sentence of supervision compared to 1.9% in 2004. This may have contributed in a small way to the increase in the prison population by pushing offenders up the sentencing hierarchy.

22. Supervision is regarded as an appropriate sentence for a larger group of less serious offenders than have received the sentence in recent years. We therefore propose that the opportunity is taken as part of the current reforms to make some modifications to increase use of this sentence. This includes, for example, enabling supervision to be used to as a vehicle for delivering services designed to increase offenders' work-related and living skills.

Purpose/focus of intensive supervision

23. We propose that a new sentence of intensive supervision be introduced, which will be rehabilitative and reintegrative in nature. The sentence will be targeted towards offenders who are at high risk of re-offending, who require one or more intensive intervention(s) to reduce this risk, and who require active interaction with the justice system.

24. An essential aspect of supervision and intensive supervision is the offender working with a probation officer to develop and maintain their motivation to address factors associated with their offending and maintain relapse prevention strategies. The new intensive supervision sentence will involve more frequent reporting to the probation officer, who will actively work with the offender and their family/whanau and other members of the offender's community who may be able to influence his/her behaviour. The probation officer will also ensure that all rehabilitative and reintegrative needs are identified, and will co-ordinate/schedule appropriate interventions.

Distinctions between supervision and intensive supervision

25. The proposed new sentence of intensive supervision is closely related to the existing supervision sentence. It is proposed to modify the latter to create a clear distinction between the two sentences. The key distinctions between supervision and intensive supervision will be:

Statutory framework

26. We propose that the statutory framework for intensive supervision include the following elements:

Judicial Monitoring

27. As part of its July 2006 decisions, Cabinet agreed in principle to a new process of "judicial monitoring" to enhance and maintain judicial confidence in community-based sentencing options [CAB Min (06) 27/3A, para 54.7 refers]. The original paper referred to "judicial supervision" but we propose to use the term "monitoring" to avoid confusion with the sentences of supervision and intensive supervision.

28. The proposed process gives sentencing judges the discretion to impose judicial monitoring of some offenders as a special condition of intensive supervision or home detention. A key aspect of the proposal is that the original sentencing judge, wherever possible, will also undertake the judicial monitoring.

29. The proposed process has two main stages. The first stage is paper-based and requires the probation officer to prepare a progress report for the judge on an individual offender's compliance with his or her sentence. The second stage requires an oral hearing where the offender re-appears before the judge. The second stage will only be invoked where the judge decides that an oral hearing is necessary, after considering the progress report. At the oral hearing, the judge will be able to vary or cancel the sentence conditions, or re-sentence the offender. The judge may also decide to make no change to the sentence.

30. Judicial monitoring will supplement, but not replace, the probation officer's key role in actively monitoring and supervising an offender. Judges will not take an active role in the delivery of the sentence - for example, by co-ordinating relevant service agencies or brokering access to programmes. Instead, judges' focus will be on the offender's overall compliance with the sentence, including whether any changes to the sentence originally imposed are required in light of the offender's positive or negative progress on the sentence.

31. The proposed process is particularly aimed at "borderline" cases - that is, cases where the decision to impose either a community-based option or a sentence of imprisonment is finely balanced. In those cases, the ability for judges to remain informed of an offender's progress on a sentence (and to vary or change the sentence if necessary) may increase the judge's confidence in a community-based option and their willingness to impose a sentence other than imprisonment.

32. The number of offenders who will be subject to the proposed process is unknown. However, it is not envisaged that judges will opt for judicial monitoring as a matter of course. To this end, it is proposed to make it clear in the legislation that judicial monitoring is intended as an exceptional rather than a standard part of the sentencing process. The process will be resource intensive (for courts and probation officers), particularly if an oral hearing is required, and will not be cost-effective in all cases.

Basic Work-Related and Life Skills Training

33. Many offenders have deficits in basic skills necessary for work, such as literacy and numeracy, and in skills necessary for ordinary life, such as budgeting. These deficits contribute to offending and re-offending. Cabinet agreed there should be greater emphasis at each stage of the sentencing hierarchy on development of these skills where required [CAB Min (06) 26/3A refers].

34. The proposed community-based sentence hierarchy will provide a number of mechanisms for the judiciary to enable offenders to access basic work-related and living skills training.  It is proposed that the judiciary be able to impose special conditions to facilitate the acquisition of these skills in the sentences of supervision, intensive supervision and home detention. Such directions will not be available in relation to the sentence of community detention, given the restrictive nature of this sentence. However, these skills could be provided through a concurrent sentence of community work, supervision or intensive supervision.

35. The sentence of community work could also provide an important device to ensure some offenders access such training. For this to occur, it is proposed to make changes to the Sentencing Act 2002 to give judges discretion to approve the probation officer converting some community work hours to the acquisition of basic work and life skills. In specifying the proportion of community work hours that may be converted, judges will need to balance the goals of reparation to the community with the likelihood of reduced re-offending that may arise from offender skill development.  Some additional costs may be incurred in the process of work skills assessment. Community work hours will only be off-set against training where the offender successfully completes the course.

36. Implementation of basic work related and life skills training will be undertaken in collaboration by government agencies with direct responsibility in this area i.e. the Department of Corrections' Community Probation Service and the Ministry of Social Development/Work and Income. This will allow offenders managed by the Community Probation Service who stand to benefit from such basic training to be identified and matched with appropriate programmes and will allow monitoring of their progress.

Judicial Consultation

37. The effectiveness of the proposed reform of community-based sentences depends, in large part, upon the judicial response to the proposals following implementation. Cabinet authorised the Ministry of Justice and the Department of Corrections to undertake further consultation with the judiciary on the proposed reforms [CAB Min (06) 26/3A, para 60 refers].

38. Officials and the Law Commission convened three meetings with 27 District Court judges in Auckland, Wellington and Christchurch on the overall package for reform. The judges expressed a personal view on the proposals and did not purport to speak on behalf of all District Court judges. Although some differences in opinion were apparent amongst individual judges, a number of broad themes were also evident.

39. Consulted judges were broadly supportive of the proposed sentence hierarchy and new community-based sentences. They welcomed the availability of more options before imprisonment and were particularly supportive of the proposed community detention sentence. Judges also expressed support for the proposed emphasis on offenders learning basic work and living skills.

40. Judges noted that community-based sentences must be properly resourced and enforced to maintain the integrity of the hierarchy and the sentences themselves. This included, for example, the need for sufficient programmes under the new intensive supervision sentence. (Cabinet has approved an increase in funding for community-based programmes as part of the EI package [CAB Min (06) 27/3A, para 85 refers].)

41. There were mixed views amongst consulted judges about the proposed judicial monitoring process. Some judges welcomed the initiative while others were concerned that this process departed too much from judges' current role. The decision on whether to engage in this process will rest with individual judges, subject to the statutory criteria.

42. There was considerable discussion about implementation of the proposed reforms. For example, judges were keen to ensure they had sufficient information available to them in order to impose the appropriate sentence in an individual case. There was also concern about the impact of some aspects of the proposals on judges' workload and an already full court schedule (for example, the proposed judicial monitoring process).

43. In summary, there was broad support amongst the consulted judges for the proposed reforms, subject to the need to ensure the proposals were adequately resourced. In the time available, it was only possible to consult with a small number of judges (27 of approximately 130 District Court judges). Therefore, the views expressed during the consultation process may not be representative of the full District Court bench.

Part 2: Report Backs on Related Matters

Enhancements to Community Work

44. Cabinet agreed that further consideration be given to the following potential enhancements of the existing community work sentence:

45. Placements for community work have been limited by uncertainty about whether local authorities are permitted to sponsor community work and by some potential sponsors being unable to provide necessary support, such as work equipment. It is proposed to amend the Sentencing Act 2002 to make it explicit that local authorities can act as community work sponsors. It is also proposed that the Department of Corrections provide additional support to sponsors through contributions to staff costs incurred in the management of offenders, and/or provision of equipment and materials. The latter would be carried out on a case by case basis. It would not require legislative change although it will have resource implications.

46. The Sentencing Act 2002 requires that a sentence of community work of 200 hours or less must be served within 12 months and a sentence or more than 200 hours must be served within 24 months.[5] Credibility issues with regard to agency placements relate to judges' concerns that offenders do not complete community work hours quickly enough under existing legislation. To address this concern, it is proposed to amend the Sentencing Act 2002 to require 100 hours of an order to be completed within six months, 200 hours within 12 months, 300 hours within 18 months and a full order of 400 hours within 24 months. The regime would apply to variants on these hour numbers so that where a sentence of 150 hours was imposed, 100 hours would have to be completed within 12 months and the remaining 50 within the following six months.

47. A related issue is that offenders can accumulate very large numbers of community work hours through cumulative sentences and the absence of any restriction on total hours. Some offenders have been sentenced cumulatively to up to 1,200 hours of community work. It is very difficult to administer a sentence of this sort over a period of several years. We therefore propose to amend the Sentencing Act to provide for a maximum sentence of 400 hours community work, whether this is imposed on one occasion or cumulatively.

48. To enhance the integrity of community work as a sentence, it is proposed to amend the Sentencing Act 2002 to allow probation officers to refuse to count hours where an offender is present but does not work appropriately or in accordance with the requirements of the supervisor. This proposal represents a new power for probation officers and some limits are necessary to ensure it is used appropriately. In particular, it is proposed that the probation officer only be permitted to take this action in relation to a specified proportion of hours (i.e. 10%), beyond which the probation officer must take court action for non-compliance.

49. The new structure for how community work is to be served is intended to address judicial concerns about the existing sentence by giving greater certainty of outcomes, particularly that offenders will complete the sentence, and in a timely manner. Other enhancements, in particular, the ability to authorise the conversion of some hours into basic skills training, will enable judges to have greater input into how the sentence is to be served.

50. Under the existing legislation, a sentence of community work may be combined with a supervision sentence but may not be combined with a fine. It is proposed that the Sentencing Act 2002 be amended to enable community work to be imposed with a fine. As noted above, it is also proposed that community work be able to be combined with either or both of the two new community-based sentences. The Department of Corrections will develop operational policies and procedures to ensure that multiple sentences are appropriately managed, and probation officers will provide advice to courts about potential combinations through pre-sentence reports.

Effectiveness of Current Penalties for Driving While Disqualified

51. Cabinet agreed that further consideration be given to whether current penalties relating to disqualification from driving are effective in addressing driving behaviour and reducing future offending [CAB Min (06) 27/3A, para 57.2 refers].

52. Members of the judiciary and justice sector officials have expressed concern that aspects of the current penalty structure for disqualified driving may set offenders up for failure. The likelihood of compliance with a disqualification period decreases as the disqualification period increases. Consideration has consequently been given to specifying a maximum period of disqualification and reviewing the 28 day stand down period before an offender can apply for a limited license.

53. The Land Transport Amendment Act 2005 responded to concerns about the effect of lengthy disqualification periods, and allows judges to sentence eligible offenders to a community-based sentence rather than imposing a mandatory period of disqualification. The Act also provides a mechanism for offenders to apply to have their disqualification period reduced after a period of being offence free.

54. This legislation only came into force in January 2006. Judges and defence counsel do not yet appear to be fully familiar with the Act's potential to address concerns around lengthy disqualification periods. We propose to allow the effects of this legislation to be assessed over a longer period before making any proposals for further change. The Ministry of Transport will work with the Ministry of Justice to ensure that judges are provided with information about the legislation, and monitor the extent to which it meets its policy goals.

55. The Ministry of Transport will be reviewing the 28 day stand-down period to determine how it is working and whether any changes are required. This will be completed as part of the policy development work for a Road Safety Bill that is due for introduction to the House around mid 2007. The Ministry of Transport will consult with justice sector agencies on this review.

56. The Department of Corrections will also develop a process to identify offenders on community-based sentences who have accumulated lengthy disqualification periods, and/or are subject to the 28 day stand down period, and assist them to manage their periods of disqualification. Where necessary offenders will be assisted to gain, or resit their license, and if appropriate, to apply to the court for a reduction in the disqualification period. This proposal aims to reduce the number of offenders who progress to a sentence of imprisonment due to further driving offences. Resourcing implications will need to be fully considered in light of any final recommendations, and may result in a future Budget bid.

Driving Programmes

57. Cabinet directed the Department of Corrections, in consultation with other agencies as appropriate, to report to POL on the design, targeting, costs and likely impact on re-offending of driving skills and defensive driving courses for offenders in the community [CAB Min (06) 27/3A, para 86 refers].

58. There is an increasing number of offenders convicted of driving offences where drugs and alcohol are not a key factor. Many of these offenders accumulate a large number of driving offences, such as driving while disqualified, and are sentenced to community-based sentences and eventually imprisonment. Driving skills courses in conjunction with community-based sentences may reduce re-offending of this sort.

59. The Land Transport Act 1998 allows a judge to order any person convicted of an offence concerning the driving of a motor vehicle to attend a driving improvement course. There are no reliable statistics available on how frequently judges use this order but there appears to be some potential to increase its use. This could be facilitated by including a recommendation in pre-sentence reports that the order be imposed in conjunction with a community-based sentence in appropriate cases. The Department of Corrections will also work with Land Transport New Zealand to ensure that sufficient programmes are available, and at the right locations.

60. In addition, the Department of Corrections will contract driving programmes for appropriate offenders who are being released from prison after lengthy sentences. Other offenders on community-based sentences for whom the relevant provision in the Land Transport Act does not apply, but who are eligible for basic work and living skills, could also attend these programmes. Programmes that are responsive to the needs of Māori will be a particular focus. For programmes to have maximum benefit to offenders, the Department of Corrections will need to ensure that the programmes are approved by the Director of Land Transport. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxs9(2)(f)(iv)xxxxxxxxxxxxxxxxxx

Implementation risks

61. There are seven risks that can be identified at this stage:

62. The risk of legislation not passing is real. The legislation may not be passed and in effect by 1 October 2007 given its complexity. Having the new sentences in effect by 1 October 2007 is a key element in minimising the number of new prison beds required. For example, the policy proposals for home detention are expected to avoid the need for an additional 310 beds for delivery by mid-2009 with costs in the order of s9(2)(f)(iv) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx over the forecast period. If it becomes apparent by early 2007 that the legislation is not likely to be passed, the Department will need to re-visit the prison build options and may need to seek funding in Budget 2007 for additional prison beds.

63. The risk of information systems not being ready is currently low, if funding for their development is approved as part of Cabinet's consideration of the community based sentences proposal, as there is a reasonable lead time available to the agencies to implement.

Options for Further Development

64. There are three possible options for advancing the implementation of community based sentences; each has risks. The options centre on the possible alignments of legislative decisions and resource decisions. Those options and risks are as follows:

65. There is a risk associated with each of these options which arises from the innovation associated with these policy proposals. Costings have been prepared on best available information, but there is an inevitable level of assumption which could lead to an over or under allocation of required funds. Furthermore any delays to legislation will have a negative effect on project development, especially infrastructure. Delays will also mean that any associated bed saving will be delayed and that may result in more volatility in capital planning and implementation.

66. Option 3 is felt to be the option most likely to achieve government's desired outcomes from this policy package. To protect against any possible over or under allocation of funds, it is proposed that as part of Budget 2007 and Budget 2008, the department of Corrections, in association with the Ministry of Justice and Treasury report to Families, Young and Old Theme Ministers. The report will address the amount of funding required for further implementation of the legislation and , if necessary, any excess funding will be returned to the Families, Young and Old theme, or seek any required additional funding through the regular budget process.

Financial Cost/Benefit Analysis

67. The proposal requires a capital investment (which the Department of Corrections can self-fund) of $18 million and ongoing operating funding of $12 million pa. The proposal reduces the proposed construction programme by 140 beds thereby reducing the capital investment required by $88 million and reducing the operating funding required by $14 million. This results in a $43 million positive "ten year" net present value. Furthermore the 288 bed decisions are deferred to Budget 2008.

68. However, the scale and timing of prison bed decisions could change as a consequence of the 2006 Ministry of Justice Prisoner Forecast to be received in October. During the 2007 external budget process Government will need to consider a full range of options to address any capacity planning implications for the justice sector over the forecast period 2006 to 2014.

Consultation

69. The Ministry of Justice and Department of Corrections prepared this paper. The New Zealand Police, Ministry of Health, Ministry of Social Development, Ministry of Transport, Law Commission, Te Puni Kokiri, Ministry of Pacific Island Affairs, The Treasury, the Department of Prime Minister and Cabinet, and the State Services Commission were consulted on this paper.

70. The Privacy Commissioner will be consulted on the draft legislation before the Bill is introduced, in particular, on the privacy aspects of community detention. Further consultation will be undertaken with the judiciary on draft legislation.

Financial Implications

71. Subject to the passage of the necessary legislation, it is anticipated that the new community-based sentences, and the legislative enhancements to community work, will come into force from 1 October 2007. Funding is required now in order to commence recruitment and training of staff and to make the necessary IT changes to implement the reforms.

72. The figures below are based on the best available information and analysis, and experience regarding how judges interpret and apply legislation. However, estimates are based on as yet untested assumptions and it will be necessary to re-examine these as the policy is further developed and implemented.

Department of Corrections

73. Government has already approved funding for the increase in home detention volumes based on an assumption of 310 prison beds avoided. It is estimated that the combined effect of home detention and community detention will avoid the need for about 450 additional prison beds by 30 June 2008. However, this is dependent upon legislation being in place by July 2007, and funding being available to commence the recruitment and training of staff from October 2006. The addition of intensive supervision and enhancements to existing sentences will also require funding. While these may not have an immediate impact on prison beds, they are essential to the total package in order to minimise the net-widening effect of home detention, and to maximise the use of community-based sentences as an alternative to imprisonment.

74. In order to manage the increased volumes of offenders on community-based sentences, an additional 70.7 full-time equivalent probation officers will be required, with the associated accommodation and capital equipment such as cars and computers. In addition to this, the IT system will require changes to meet the needs of the new sentencing structure. The total costs of the package, consisting of increased access to community work, community detention, intensive supervision and sentence enhancements such as basic work and living skills, to support home detention and avoid a total of 450 prison beds by 30 June 2008, are:

Operating ($m)	2006/07	2007/08	2008/09	2009/10	2010/11
Intensive supervision	-	8.569	8.569	8.569	8.569
Supervision	-	5.873	5.873	5.873	5.873
Less self-funded from existing supervision	-	(9.963)	(9.963)	(9.963)	(9.963)
Net Supervision changes	-	4.479	4.479	4.479	4.479
Community Detention	-	5.192	5.192	5.192	5.192
Community Work	-	1.648	1.648	1.648	1.648
Total Setup Costs	-	1.100	0.850
Total Operating (GST exclusive)	-	12.419	12.169	11.319	11.319
CAPITAL ($M)
IT	2.650
Accommodation and equipment		15.353
Self Funding				(18.003)
Total Capital	2.650	15.353		(18.003)

75. The Department of Corrections will self-fund a range of other costs, at least initially. Self-funded costs include information to the courts about potential community detention sentences and for the purposes of judicial monitoring, basic work and living skills assessments for offenders on all community-based sentences except community work, additional driving programmes, and setup costs for recruitment and the development of operational policy and procedures.

76. It is difficult to forecast the volumes of combinations of sentences that may arise from these policy developments. In particular, the combination of community work with community detention could be an attractive option for judges as an alternative to imprisonment. If so, additional resources may be required to meet the demand. The Department of Corrections has not estimated any total increase in the numbers of offenders on supervision/intensive supervision above those on current orders. Costings have been based on increased time with offenders but not increased volumes. If volumes do increase then additional resources will be required for their administration. The uptake of judicial monitoring will also be monitored and if there is a large demand, the Department will seek additional resources in future budgets.

Ministry of Justice (Operations)

77. Modifications to the Ministry's computer system (CMS) will be required to implement the proposed changes to community-based sentences and judicial monitoring. Estimated costs are as follows:

	2006/07	2007/08	2008/09	2009/10	2010/11
Operating ($000)
Net Operating	434	373	279	310	310
Revenue/third parties funding	0	0	0	0	0
Capital charge	-	94	94	94	94
Total Appropriation Bid	434	467	373	404	404
CAPITAL ($000)	1176

78. On the information currently available, it is not possible to accurately estimate either the numbers of cases that will be subject to the new community-based sentences, or the time requirements for the court when imposing those sentences. There is a risk that the community-based sentences will require additional court time as compared with other sentences. If large numbers of cases are subject to these sentences, and if they require significant additional time to impose compared with other sentences, additional court resources (such as funding for new judges) may be required to offset any additional delay introduced into the court system as a result. This risk will be monitored as the proposal progresses, and particularly in conjunction with discussions with the judiciary in relation to their views on the sentences, and the issues they will want covered in considering the imposition of the sentences.

79. There may be non-IT related costs associated with the judicial monitoring proposal. It is proposed that these costs be confirmed when officials report back on proposals for the expansion of judicial supervision of alcohol and drug treatment for offenders by 30 November 2006 [CAB Min (06) 27/3A, para 91 refers]. This will allow the non-IT related costs for judicial monitoring to be considered as an entire package at that time. It is also proposed that officials report back on the IT costs at 30 November 2006 with a refinement of the costs, and whether any additional funds are required to implement the IT proposals for the expansion of judicial supervision of alcohol and drug treatment.

Human Rights

80. The proposals in this paper are intended to be consistent with the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993. The consistency of the Criminal Justice Reform Bill with the New Zealand Bill of Rights Act 1990 will be assessed before the Bill is introduced. Further consultation is planned with the Privacy Commissioner on particular aspects of the proposals.

Legislative Implications

81. Legislation is required to implement the majority of these proposals. The Criminal Justice Reform Bill is the legislative vehicle to make amendments required as a result of the Effective Interventions proposals. The Bill has priority 2 on the legislative programme (must be passed in 2006).

Regulatory Impact and Business Compliance Cost Statement

82. A regulatory impact statement is attached to this paper.

Recommendations

83. The Ministers of Justice and Corrections recommend that the Committee:

Proposed Reform of Community-Based Sentences: Legislative Proposals

1	note that as part of its consideration of the Effective Interventions package in July 2006, Cabinet agreed in principle to a proposed package of reform for community-based sentences, subject to further development work and consultation [CAB Min (06) 27/3A refers]
2	note that officials have consulted with the District Court judiciary on the proposed reform of community-based sentences, that there was broad support for the proposals amongst consulted judges, but this support may not be representative of the full District Court bench
3	note that the proposals in the package aim to increase the credibility and availability of community-based sentences so that these sentences will be used more frequently and fewer offenders will be sentenced to imprisonment

Sentencing Hierarchy

4	agree to introduce a clear hierarchy of sentences, which is based on the principle that restriction of freedom and the level of engagement, monitoring or supervision of an offender, increases as the offender moves up the hierarchy
5	agree that the hierarchy of sentences includes the following key components: Imprisonment is clearly the most severe sentence The new sentence of home detention is the next most severe penalty and the last alternative before imprisonment There will be two distinct tiers of community-based sentences, distinguished according to the extent of restriction on an offender's liberty and engagement, monitoring or supervision of an offender Two new community-based sentences, community detention and intensive supervision, will comprise the higher tier of community-based sentences The existing community-based sentences, community work and supervision, will comprise the lower tier of community-based sentences There is a greater emphasis at each stage of the hierarchy on the development of offenders' work-related and living skills where required
6	agree to make any necessary consequential amendments to the Sentencing Act 2002 in light of the hierarchy (for example, amendments to the purposes of various sentences)

New Community-Based Sentences

7	agree to the introduction of two new community-based sentences, community detention (previously referred to as electronically-monitored curfew) and intensive supervision
8	agree that the statutory framework for community detention include the following elements: a) The court may impose the sentence for a maximum term of 6 months b) The curfew requirement will be for specified periods up to a maximum of 84 hours per week c) The offender will be subject to standard conditions, some of which will apply during the full sentence and others that will only apply during the curfew period d) An offender will only be permitted to leave the curfew address during curfew hours: For humanitarian reasons (for example, to attend a funeral); or To seek urgent medical or dental treatment; or To avoid or minimise a serious risk of death or injury to the offender or any other person e) The probation officer will have some limited ability to authorise absences from the curfew address during the curfew hours, but only where community detention has been imposed concurrently with supervision or intensive supervision f) Any changes in the curfew address must be approved by the probation officer, and any more than two changes in address over the sentence term must be approved by the court g) As with home detention, it will be an offence to: Breach conditions of the sentence without reasonable excuse; or Refuse the probation officer's entry to the curfew address h) Maximum penalties for the above offences will be provisionally set at either a $1500 fine or 6 months imprisonment i) It will be possible to vary or cancel the sentence if there has been a relevant change in circumstances (for example, if the curfew address becomes inappropriate) or if the offender is not complying with the sentence j) It will be possible to impose community detention on its own, with any other community-based sentence, with a fine, but not with home detention
9	agree that a provision be inserted in legislation prohibiting the use of information about an offender's movements outside the curfew hours
10	agree to extend the concept of a curfew address beyond an offender's residence to include, for example, a marae or family member's home
11	agree to amend relevant provisions in the Parole Act 2002 relating to the electronic monitoring of paroled offenders to be consistent with the proposed community detention provisions in all relevant respects
12	agree that the statutory framework for intensive supervision include the following elements: a) The term of the sentence will be for a period between 6 months and 2 years b) There will be statutory authority for the probation officer to decrease the intensity of the supervision and monitoring during the course of the sentence depending on the offender's progress c) Although offenders will be subject to both standard and special conditions as with the existing supervision sentence, the standard conditions for intensive supervision will include more stringent reporting requirements d) The proposed judicial monitoring process will be available as a special condition of intensive supervision e) It will be an offence to: Fail to comply with any condition of a sentence of intensive supervision, without reasonable excuse; or Fail to report when required to do so, without reasonable excuse f) Maximum penalties for the above offences will be provisionally set at either a $1500 fine or 6 months imprisonment g) The court will be able to vary or cancel a sentence of intensive supervision on application from the probation officer. Where an offender is subject to judicial monitoring, any variation or cancellation will be carried out through this process where practicable. However, variations and cancellations will be possible outside the process where the probation officer feels it is necessary. The probation officer will also have the authority to take breach action in accordance with the standard process. h) It will be possible to impose intensive supervision on its own, with a sentence of community detention or community work, with a fine, but not with home detention or supervision
13	agree to modify the sentence of supervision to create a clear distinction between supervision and intensive supervision
14	agree to reduce the maximum term of supervision from two years to one year

Judicial Monitoring

15	agree to introduce judicial monitoring of selected offenders as a special condition of home detention and intensive supervision

Basic Work and Life Skills

16	agree that the acquisition of basic work and life skills be a special condition of supervision, intensive supervision and home detention
17	agree to give judges the discretion to approve the probation officer converting some community work hours to the acquisition of basic work and life skills

Enhancements to Community Work

18	agree to make explicit in legislation that local authorities can act as community work sponsors
19	agree to a revised regime for the completion of community work under which offenders must complete 100 hours of community work hours within six months, 200 hours within 12 months, 300 hours within 18 months, and 400 hours within 24 months
20	agree to provide for a maximum sentence of 400 hours community work, whether this is imposed on one occasion or cumulatively
21	agree that community work be able to imposed with a fine
22	agree to allow probation officers to refuse to count community work hours where an offender is present but does not work appropriately or in accordance with the requirements of the supervisor, to a maximum of 10% of the total hours imposed

Legislative Vehicle

23	agree that the proposals identified in recommendations 4 to 22 above be progressed via the Criminal Justice Reform Bill, which is the legislative vehicle to make amendments required as a result of the Effective Interventions proposals
24	authorise the Ministers of Justice and Corrections to agree on any further policy issues in relation to the above proposals that emerge during the drafting of the legislation

Non-Legislative Proposals

Enhancements to Community Work

25	note that the Department of Corrections will provide additional support to community work sponsors through contributions to staff costs incurred in the management of offenders, and/or provision of equipment and materials

Effectiveness of Current Penalties for Driving While Disqualified

26	note that a 2006 amendment provided a mechanism for reducing the length of periods of driving disqualification, that the Ministry of Transport will work with the Ministry of Justice to ensure that judges are provided with information about this new legislation, and no further changes are proposed at this time
27	note that the Ministry of Transport will review the 28 day stand-down period for a limited license application in the context of forthcoming advice on a Road Safety Bill currently in preparation
28	note that the Department of Corrections will develop a process to identify offenders on community-based sentences with lengthy disqualification periods and/or are subject to the 28 stand-down period, and assist them to manage their periods of disqualification
29	note that the Department of Corrections will seek to increase the number of judicial orders requiring that offenders attend driving improvement courses in appropriate cases and contract driving programmes for released prisoners and other offenders where necessary

Risks

30

note the residual risks below, and that these risks will be re-evaulated in Budget 2007 and may require consideration of further capacity decisions in respect of prison beds in Budget 2007 The legislation may not be passed (or in effect by) 1 October 2007 The system may not be ready in time to cope with the changes brought about by the new sentences The anticipated volumes of offenders to be managed may be greater or lower than predicted The anticipated reduction in demand for prison beds as a result of the changes to Community-Based Sentences may not be realised Inability to access required volumes of basic work and driving skills courses through the Ministries of Social Development and Transport The anticipated volume of judicial monitoring may be greater than predicted That multiple developments in electronic monitoring, including electronic monitoring on bail, could exceed the private sector's capacity to meet the demand for necessary equipment

Financial Implications

31	agree to funding changes for the above proposals:

	$m - increase/(decrease)
Vote Corrections	2006/07	2007/08	2008/09	2009/10	2010/11	2011/12 & Outyears
Operating Balance Impact		12.4	12.2	11.3	11.3	11.3
Debt Impact	2.7	15.3		(18.0)
No Impact	0.2	1.2	1.4
Total	2.9	29.1	13.6	(6.0)	11.3	11.3

	$m - increase/(decrease)
Vote Courts	2006/07	2007/08	2008/09	2009/10	2010/11	2011/12 & Outyears
Operating Balance Impact	0.43	0.38	0.28	0.32	0.32	0.32
Debt Impact	1.18
No Impact		0.09	0.09	0.09	0.09	0.09
Total	1.61	0.47	0.37	0.41	0.41	0.41

32	approve the following changes to appropriations or net asset schedules to put in effect the changes in recommendation 30:

	$m - increase/(decrease)
Vote: Corrections		2006/07	2007/08	2008/09	2009/10	2010/11	2011/12 & Outyears
Departmental Output Expense: Information Services (funded by revenue Crown)		-	0.6	0.6	0.6	0.6	0.6
Departmental Output Expense: Community-Based Sentences & Orders (funded by revenue Crown)		0.2	13.2	13.2	11.4	10.7	10.7
Net Asset Schedule of Vote Corrections: Capital Injection		2.7	15.3		(18.0)
Total Operating		0.2	13.8	13.6	12	11.3	11.3
Total Capital		2.7	15.3		(18.0)
	$m - increase/(decrease)
Vote: Courts		2006/07	2007/08	2008/09	2009/10	2010/11	2011/12 & Outyears
Departmental Output Expense: Criminal Jury Trail 2.1 (funded by revenue Crown)		0.4	0.5	0.4	0.4	0.4	0.4
Net Asset Schedule of Vote Justice: Capital Injection		1.2
Total Operating		0.4	0.5	0.4	0.4	0.4	0.4
Total Capital		1.2

33	note that as a result of the proposed capital injection the projected net asset position of Vote Corrections will increase by the amount of the capital injection
34	note that as a result the projected capital injection the projected net asset position of Vote Courts will increase by the amount of the capital injection
35	agree that the changes to appropriations for 2006/07 above be included in the 2006/07 Supplementary Estimates and that, in the interim, these expenses be met from Imprest Supply.
36	direct the Department of Corrections and the Ministry of Justice, in consultation with the Treasury, to report to Families, Young and Old Theme Ministers, as part of Budget 2007 and future Budgets on: The amount of funding that is required for the ongoing implementation of the agreed policy on community based sentences The extent to which any of these costs can be off-set from within existing appropriations The amount of any identified surplus that will be returned to the Families, Young and Old theme
37	note that any subsequent variations in offenders volumes will be dealt with through the normal budget process
35	direct officials to confirm the costs of the judicial monitoring proposal for Vote Courts as part of the report back on proposals for the expansion of judicial supervision of alcohol and drug treatment for offenders by 30 November 2006 [CAB Min (06) 27/3A, para 91 refers].

Hon Mark Burton Minister of Justice

Hon Damien O’Connor Minister of Corrections

APPENDIX A

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% in the six years to 2005. Work undertaken as part of the Effective Interventions project identified opportunities to strengthen the credibility of community-based sentences and increase the community-based options available to judges. Recent consultation with the judiciary also identified judicial concern about existing community-based sanctions. These concerns indicated a general lack of judicial confidence in existing community-based sanctions and included a call for a greater array of sanctions and improvements to current sanctions.

Statement of the Public Policy Objective(s)

The objective is to increase the credibility of community-based sentences so that these sentences will be used more frequently and fewer offenders will be sentenced to imprisonment.

Statement of Feasible Options

Status Quo

The Sentencing Act 2002 reformed community-based sentences by replacing the sentences of supervision, community programme, community service and periodic detention with two more clearly defined sentences of supervision and community work.

Supervision is a rehabilitative and reintegrative sentence for offenders at risk of re-offending for whom supervision and monitoring would be likely to reduce that risk.[6] Offenders can be sentenced to supervision for between six months and two years[7] and are required to comply with nine standard conditions (including regular reporting and restrictions on who an offender may associate with).[8] Offenders may also be subject to special conditions, including participation on a rehabilitative or reintegrative programme.[9]

Community work is a reparative sentence aimed at compensating the community.[10] An offender can be sentenced to up to 400 hours community work to be completed within two years at either a community work centre run by the Community Probation Service (CPS) or a placement at a community agency (e.g. Rotary Clubs).[11]

Preferred Non-Regulatory Option(s)

The most significant proposals in this area concern changes to legislation, in particular, the Sentencing Act 2002. However, some non-regulatory options are also being progressed to increase the credibility of existing community-based sentences. These options include:

Community work

It is proposed that the Department of Corrections provide additional support to community work sponsors through contributions to staff costs incurred in the management of offenders and/or the provision of equipment and materials.

Driving offenders

There is particular concern about the increasing number of offenders being convicted of driving offences where alcohol and drugs are not a key factor. In response to this concern, it is proposed that:

Preferred Regulatory Option(s)

It is necessary to amend the Sentencing Act 2002 to make any substantial changes to the current framework and options for community-based sentences. In particular, amendments are proposed to:

Statement of the Net Benefit of the Proposal

Government

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

It is estimated that the combined effect of home detention and community detention will avoid the need for about 450 additional prison beds by 30 June 2008. Intensive supervision and the proposed enhancements to existing community-based sentences will not have an immediate impact on prison beds. However, these proposals are essential to the total package in order to minimise the net-widening effect of home detention and to maximise the use of community-based sentences as an alternative to imprisonment.

All cost estimates are based on as yet untested assumptions. It will be necessary to re-examine these assumptions as the policy is further developed and implemented.

Vote Corrections

An additional 70.7 FTE probation officers will be required to manage the increased volumes of offenders on community-based sentences. IT changes are also required to meet the needs of the new sentencing structure. Other costs (for example, the costs of judicial monitoring) will be self-funded by the Department of Corrections initially. The additional funding being sought by the Department of Corrections to implement the proposals in this paper are as follows:

Operating	2006/07	2007/08	2008/09	2009/10	2010/11
Intensive supervision	-	8.569	8.569	8.569	8.569
Supervision	-	0.126	0.126	0.126	0.126
Less self-funded from existing supervision	-	(9.963)	(9.963)	(9.963)	(9.963)
Net Supervision changes	-	4.479	4.479	4.479	4.479
Community Detention	-	5.192	5.192	5.192	5.192
Community Work	-	1.648	1.648	1.648	1.648
Total Setup Costs	-	1.100	0.850
Total Operating (GST exclusive)	-	12.419	12.169	11.319	11.319
CAPITAL
IT	2.650
Accommodation and equipment		15.353
Total Capital	2.650	15.353

Vote Courts

Modifications to the Ministry's computer system (CMS) will be required to implement the proposed changes to community-based sentences. Estimated costs are as follows:

	2006/07	2007/08	2008/09	2009/10	2010/11
Operating ($000)
Net Operating	434	373	279	310	310
Revenue/third parties funding	0	0	0	0	0
Capital charge	-	94	94	94	94
Total Appropriation Bid	434	467	373	404	404
CAPITAL ($000)	1176

Offenders

The proposals in this paper have benefits for offenders on community-based sentences. The new sentences mean that some offenders who would otherwise have served a sentence of imprisonment will now be sentenced to a community-based sentence. Other proposals, including the provision of life skills training, additional judicial monitoring of offenders, and the proposed enhancements to existing community-based sentences aim to increase the effectiveness of community-based sentences. More effective community-based sentences are more likely to reduce re-offending and assist the offender to play a productive role in the community.

Society

The primary benefit for society of these proposals is a reduction in social and financial costs from a reduced use of imprisonment. The proposals also include a greater focus on the rehabilitation and reintegration of offenders into society, through greater engagement, monitoring and supervision of offenders at each stage of the sentencing hierarchy.

Statement of Consultation Undertaken

Stakeholder Consultation

The District Court judiciary has been consulted on the specific proposals in this paper. This consultation revealed broad support for the proposed reforms but signalled the need to ensure that the new community-based sentences have a clear identity and are properly resourced. The Privacy Commissioner will be consulted on the draft legislation before the Bill is introduced, in particular, on the privacy aspects of community detention. Further consultation will be undertaken with the judiciary on draft legislation.

Government Departments/Agencies Consultation

The Ministry of Justice and Department of Corrections prepared this paper. The New Zealand Police, Ministry of Health, Ministry of Social Development, Ministry of Transport, Law Commission, Te Puni Kokiri, Ministry of Pacific Island Affairs, The Treasury, the Department of Prime Minister and Cabinet, and the State Services Commission were consulted on this paper.

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Footnotes

1 Cabinet has previously decided to establish home detention as a sentence – CAB Min (06) 27/3A, para 63 refers.

2 By implication, monetary penalties would be at the bottom of the sentencing hierarchy.

3 It was verbally agreed to at POL that the sentence be called community detention but this was not recorded.

4 When intensive supervision is imposed concurrently with community work, the probation officer will have the ability to apply to the court to request the deferral of the start of, or the temporary suspension of, community work where this is necessary to enable the offender to complete other activities required as part of the intensive supervision sentence (e.g. a residential programme).

5 Sentencing Act 2002, s58.

6 Section 46, Sentencing Act 2002.

7 Section 45(2), Sentencing Act 2002.

8 Section 49(1), Sentencing Act 2002.

9 Section 50, Sentencing Act 2002.

10 Section 56, Sentencing Act 2002.

11 Section 55, Sentencing Act 2002.