Ministry of Justice: 2001: Sentencing and Parole Reform Bill

(1) A court may impose a sentence of reparation if an offender has, through or by means of an offence of which the offender is convicted, caused any other person to suffer-

(2) When determining the amount of reparation to be made, the court may take into account-

(3) The court must not impose as part of a sentence of reparation an obligation on the offender to perform any form of work or service for the victim.

(1) If the court considers that a sentence of reparation should be imposed, the court may order a probation officer, or any other person designated by the court for the purpose, to prepare a reparation report for the court in accordance with section 31 on all or any of the following matters:

(2) The court may decline to seek a report under subsection (1) . and impose a sentence of reparation without further inquiry if-

(1) A probation officer or other person who is required by a court to prepare a report under section 30 must attempt to gain agreement between the offender and the victim on the amount that the offender should be required to pay by way of reparation.

(2) If agreement is reached, the probation officer or other person must report the terms of the agreement to the court (in addition to any other matters on which the court has required a report).

(4) Despite subsections (1) to (3) , the victim is not obliged to meet with the offender or otherwise participate in the preparation of the report.

(5) Without limiting section 25 , the person who prepared a report under this section must give a copy to the victim unless the court orders otherwise.

(6) Failure to give a copy of any report in accordance with subsection (5) does not affect the validity of the proceedings in a court or of any order made or sentence imposed by a court.

(1) If the offender has insufficient means to pay the total value of the loss, damage, or harm, the court may sentence the offender to make-

(2) If the court imposes on an offender a sentence of reparation and a sentence of a fine, any payments received from the offender must be applied first in satisfaction of the amount due under the sentence of reparation.

If a court sentences an offender to make reparation, the court must determine the conditions of the sentence in respect of the following matters:

(1) A copy of the conditions of a sentence of reparation must be given to the victim.

(2) Failure to give a copy of the conditions of the sentence in accordance with this section does not affect the validity of the proceedings in the court or of the sentence imposed by the court. Compare: 1985 No 120 s 24(c), (d)

(1) Every sum payable under a sentence of reparation must be paid to the victim or, with the victim's consent, to the victim's insurer.

(2) Nothing in subsection (1) affects section 398 of the Accident Insurance Act 1998.

(3) A sentence of reparation does not affect any right that the victim has to recover by civil proceedings any damages in excess of the amount recovered under the sentence.

(1) If an enactment provides that a court may sentence an offender to imprisonment but does not prescribe a fine, the court may sentence the offender to pay a fine instead of sentencing the offender to imprisonment.

(2) If an enactment provides that a court may sentence an offender to a community-based sentence but does not pre-scribe a fine, the court may sentence the offender to pay a fine instead of imposing a community-based sentence.

(3) Subsections (1) and (2 ) are subject to any express provision to the contrary in the relevant enactment.

(4) No person may, except as provided by section 28F of the District Courts Act 1947, be sentenced by a District Court in accordance with this section to pay a fine exceeding-

(1) In determining the amount of a fine, the court must take into account, in addition to the provisions of sections 7 to 10 , the financial circumstances of the offender.

(2) subsection (1) applies whether taking into account the financial circumstances of the offender has the effect of increasing or reducing the amount of the fine.

(3) If under an enactment an offender is liable to a fine of a specified amount, the offender may be sentenced to pay a fine of any less amount, unless a minimum fine is expressly pro-vided for by that enactment.

(4) If a court imposes a fine in addition to a sentence of reparation, it must, in fixing the amount of the fine, take into account the amount payable under the sentence of reparation.

(1) If the court considers that a fine of less than $100 may be an appropriate sentence, it may assume that the offender has the means to pay the fine unless evidence is presented to the contrary.

(2) If the court considers that a fine of $100 or more may be an appropriate sentence, but it is uncertain about the offender's ability to pay the fine, the court may direct the offender to make a declaration as to his or her financial circumstances.

(3) The court may decline to give a direction under subsection (2) and impose a fine without further inquiry if-

(4) A declaration under this section must contain information on all sources of income, assets, liabilities, and outgoings, including, without limitation,-

Every person is liable to imprisonment for a period not exceeding 3 months or a fine not exceeding $1,000 who pro-vides false or misleading information in a declaration of financial circumstances provided under section 38 .

(2) The sentence may be for a period, being not less than 6 months and not more than 2 years, that the court thinks fit.

A court may only impose a sentence of supervision if the court is satisfied that supervision from a probation officer would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.

43 Sentences of supervision in respect of 2 or more offences must be served concurrently

If a court imposes a sentence of supervision in respect of each of 2 or more offences, the sentences must be served concurrently.

(1) If an offender is sentenced to supervision, the following standard conditions apply:

(a) the offender must report in person to a probation officer in the probation area in which the offender resides as soon as practicable, and not later than 72 hours, after the sentence is imposed:

(b) the offender must report to a probation officer as and when required to do so by a probation officer, and must notify the officer of his or her residential address and the nature and place of his or her employment when asked to do so:

(c) the offender must not move to a new residential address in another probation area without the prior written consent of a probation officer:

(d) if consent is given under paragraph (c) , the offender must report in person to a probation officer in the new probation area in which the offender is to reside as soon as practicable, and not later than 72 hours, after the offender's arrival in the new area:

(e) if an offender intends to change his or her residential address within a probation area, the offender must give a probation officer reasonable notice before moving from his or her residential address and must advise the probation officer of the new address:

(f) the offender must not reside at any address at which a probation officer has directed the offender not to reside:

(g) the offender must not engage, or continue to engage, in any employment or occupation in which a probation officer has directed the offender not to engage or continue to engage:

(h) the offender must not associate with any specified per-son, or with persons of any specified class, with whom a probation officer has, in writing, directed the offender not to associate.

(2) The conditions in subsections (1)(c) to (f) do not apply if, and to the extent that, they are inconsistent with any special condition imposed by the court.

(1) A court may impose any special condition or conditions related to a programme if the court is satisfied that-

(2) Despite subsection (1) , a special condition related to a programme involving medical or psychiatric treatment or a surgical procedure must not be imposed unless the offender consents to the treatment or procedure.

(3) If an offender withdraws his or her consent to treatment or a procedure agreed to for the purposes of subsection (2) , that does not amount to a breach of conditions for the purposes of section 65 .

(a) any medical or surgical treatment, including psychiatric treatment:

(b) attendance at any medical, psychological, social, therapeutic, cultural, educational, employment-related, rehabilitative, or reintegrative programme:

(c) placement in the care of members of an appropriate ethnic group, such as a tribe (iwi), subtribe (hapu), extended family (whanau), or marae, or in the care of any particular member or members of the ethnic group, such as an elder (kaumatua):

(d) placement in the care of-

(i) members of an appropriate cultural group; or

(ii) members of an appropriate religious group, such as a church or religious order, or any particular member or members of the religious group:

(e) placement in the care of any other person or persons approved by the chief executive of the Department of Corrections, or of any agency.

(1) A court may impose any of the special conditions described in subsection (2) if the court is satisfied that-

(3) No court may impose a condition under this section that the offender pay any fine, reparation, or other sum ordered to be paid on conviction, or that the offender perform any service that he or she could have been required to perform if he or she had been sentenced to community work.

49 Offender to be under supervision of probation officer An offender who is subject to a sentence of supervision must be under the supervision of a probation officer in the probation area in which the offender resides for the time being, or of any other probation officer that the Chief Executive of the Department of Corrections may direct.

(1) An offender who is subject to a sentence of supervision, or a probation officer, may apply in accordance with section 67 for an order under subsection (3) of this section on the grounds that-

(a) the offender is unable to comply, or has failed to comply, with any of the conditions of the sentence:

(b) any programme to which the offender is subject is no longer available or suitable for the offender:

(c) having regard to any change in circumstances since the sentence was imposed and to the manner in which the offender has responded to the sentence,-

(i) the rehabilitation and reintegration of the offender would be advanced by the remission, suspension, or variation of conditions, or the imposition of additional conditions; or

(ii) the continuation of the sentence is no longer necessary in the interests of the community or the offender.

(2) A probation officer may apply in accordance with section 67 for an order under subsection (3) of this section if an offender who is subject to a sentence of supervision is convicted of an offence punishable by imprisonment.

(3) On an application under subsection (1) or subsection (2) , the court may, if it is satisfied that the grounds on which the application is based have been established,-

(4) The court must not vary any existing condition or impose any new condition of a kind referred to in section 46(2) without the consent of the offender.

(5) When determining a substitute sentence under subsection (3)(c) , the court must take into account the portion of the original sentence that remains unserved at the time of the order.

(6) If the court cancels a sentence under this section, the sentence expires on the date that the order is made, or on any other date that the court may specify.

(7) If an application is made under this section for the remission, suspension, or variation of any condition imposed by the court, a probation officer may suspend the condition until the application has been heard and disposed of.

(2) The sentence may be for the number of hours, being not less than 40 or more than 400, that the court thinks fit.

(1) In considering whether to impose a sentence of community work, the court must give particular consideration to-

(2) A sentence of community work is inappropriate if the court is satisfied that-

(3) The court may assume that suitable work is available for the offender to perform under the sentence unless the court is advised otherwise.

(1) If a court imposes a sentence of community work on an offender who is already subject to a sentence of community work, the sentences must be served concurrently unless the court directs that they are to be served cumulatively.

(2) If a court imposes a sentence of community work in respect of each of 2 or more offences, the sentences must be served concurrently unless the court directs that they are to be served cumulatively.

(3) The court must not impose a sentence of community work cumulatively on another sentence of community work if, in view of all the circumstances, it would be impractical for the offender to perform the subsequent sentence in the time allowed under section 54(3) .

(4) If a court directs that a sentence of community work is to be cumulative on another sentence of community work, the maximum number of hours of work that the court may impose under the subsequent sentence is a number equal to 400 minus the number of hours of work yet to be competed under the first sentence.

(5) If a court imposes a sentence of community work and a sentence of supervision, or imposes one of them on an offender who is already subject to the other, the sentences must be served concurrently.

(1) If the court imposes a sentence of community work of 200 hours or less, that sentence must be served within 12 months of the date that it commences under section 70 .

(2) If the court imposes a sentence of community work of more than 200 hours, that sentence must be served within 24 months of the date that it commences under section 70 .

(3) Despite subsections (1) and (2) , if a court directs that a sentence of community work is to be cumulative on another sentence of community work, the work required to be performed for the purposes of the subsequent sentence must be performed,-

(a) if the number of hours of work remaining to be done under the first sentence, together with the number of hours of work imposed under the subsequent sentence, is not more than 200 hours in total,-

(i) during the period of 12 months commencing with the date of the imposition of the first sentence; or

(ii) within any further period not exceeding 6 months that the court may order; or

(b) if the number of hours of work remaining to be done under the first sentence, together with the number of hours of work imposed under the subsequent sentence, is more than 200 hours in total,-

(i) during the period of 24 months commencing with the date of the imposition of the first sentence; or

(ii) within any further period not exceeding 6 months that the court may order.

(4) If an offender who is subject to 2 or more concurrent sentences of community work does any work under any of those sentences, the offender must be treated as having done that work under each of those sentences. Compare: 1985 No 120 s 30(2)

An offender who is subject to a sentence of community work must report in person to a probation officer in the probation area in which the offender resides, as soon as practicable, and not later than 72 hours, after the sentence is imposed.

56 Probation officer must determine placement of offender for community work As soon as practicable after a sentence of community work is imposed, and at any other time during the sentence if the probation officer thinks fit, a probation officer must determine in accordance with sections 57 and 58 whether the community work will be done-

57 Guidance to probation officer in determining placement of offender for community work

For the purposes of section 56 , the probation officer must take into account-

(a) the circumstances of the offending; and

(b) how the offender could benefit from learning work habits or skills through the sentence; and

(d) the offender's physical and mental capabilities; and

(e) whether there is a community work centre within a reasonable distance of the offender's place of residence; and

(f) whether there is any agency within a reasonable distance of the offender's place of residence that has sufficient suitable work available for the offender; and

(g) any other relevant circumstances.

(1) The type of work that an offender may be required to perform for the purposes of a sentence of community work is work-

(2) No offender may be directed for the purposes of a sentence of community work to do any work if, in doing so, the offender would take the place of any person who would otherwise be employed in doing that work in the ordinary course of that person's paid employment.

(1) If community work is to be done on placement with an agency other than a community work centre, the days on which and the times at which the offender does the work must be fixed by agreement between a probation officer and the agency and notified in writing to the offender.

(2) If the community work is to be done on placement at a community work centre, the days on which and the times at which the offender performs the work must be determined by a probation officer and notified in writing to the offender.

(3) It is not necessary for all the periods of work to be of the same duration, but no period may be longer than 10 hours and no offender may be required to do more than 40 hours of community work per week.

(4) The times at which the offender is required to report, and the periods during which he or she is required to do community work, must be such as to avoid interference, so far as practicable, with the offender's attendance at any place of education or employment, or with his or her religious observances.

(1) An offender who is directed to do community work on placement at a community work centre is subject to the control, direction, and supervision of a probation officer-

(2) An offender who is directed to do community work on placement with an agency other than a community work centre is subject to the control, direction, and supervision of a probation officer at all times while the offender is doing work or is required to be doing work under the sentence.

(1) An offender who is subject to a sentence of community work may be excused from reporting during any period when the community work centre or other agency at which the offender is required to report is closed.

(2) In special circumstances, a probation officer may excuse an offender from reporting on any day or during any period.

(3) Without limiting subsection (2) , if an offender is unable to report on any day or during any period because of illness or injury, a probation officer must, on being satisfied (whether before or after the failure to report) with the circumstances of the case, excuse the offender from the requirement to report on that day or during that period.

(4) For the purpose of determining whether or not to excuse an offender under subsection (3) , the probation officer may require that the offender obtain a certificate from a registered medical practitioner as to whether the offender is, will be, or was unfit to report on the day or during the period.

(5) A certificate obtained in accordance with subsection (4) is not conclusive as to whether the offender is, will be, or was unfit to report.

(6) To avoid doubt, if an offender is excused under this section from reporting, that does not have the effect of remitting any of the hours of community work required to be done under the sentence.

If a probation officer is satisfied that the offender has a good record of compliance with a sentence of community work, the probation officer may, as the sentence nears its end, remit up to 10% from the aggregate number of hours of community work imposed by the court.

(1) An offender who is subject to a sentence of community work, or a probation officer, may apply in accordance with section 67 for an order under subsection (3) of this section on the grounds that-

(2) A probation officer may apply in accordance with section 67 for an order under subsection (3) of this section-

(3) On an application under subsection (1) or subsection (2) , the court may, if it is satisfied that the grounds on which the application is based have been established,-

(4) When determining a substitute sentence under subsection (3)(c) , the court must take into account the portion of the original sentence that remains unserved at the time of the order.

(5) If the court cancels the sentence, the sentence expires on the date that the order is made.

(1) An offender who is subject to a sentence of community work, or a probation officer, may apply in accordance with section 67 for an extension of the period within which the work must be done on the grounds that-

(2) On an application under subsection (1) , the court may, if it is satisfied that the grounds in subsection (1) have been established, extend the period within which the work must be done by the amount that the court thinks fit.

(3) subsection (2) applies even if the extension means that the period is longer than the period that would otherwise be allowed under section 54.

Part 2: Sentences, orders, and related matters