Ministry of Justice: 2001: Sentencing and Parole Reform Bill

The purpose of Parts 3 and 4 is to reform the law relating to the release from imprisonment of offenders serving sentences of imprisonment, and to replace the provisions of Parts IV and VI of the Criminal Justice Act 1985.

Board means the New Zealand Parole Board established under section 263 ; and includes a panel of the Board, a panel convenor, and the chairperson of the Board acting within their respective jurisdictions

detention conditions means the standard detention conditions and any special conditions imposed by the Board on an offender who is directed to serve all or any part of his or her sentence by way of home detention

final release date means the date determined under section 91 of the Criminal Justice Act 1985 as the final release date of an offender who is subject to a pre-cd sentence

home detention means detention under a sentence of imprisonment in an approved residence (including a marae)

imprisonment means detention under a sentence of imprisonment, whether the detention is in a penal institution, an approved residence while detained on home detention, or a psychiatric institution

indeterminate sentence means a sentence of imprisonment that is life imprisonment or preventive detention

interim recall order means an interim recall order made under section 218

Minister means the Minister of the Crown who is responsible for the Department of Corrections

non-release day means a Thursday, a Friday, a Saturday, a Sunday, Christmas Day, Boxing Day, New Year's Day, Waitangi Day, Easter Monday, Anzac Day, the Sovereign's Birthday, Labour Day, and, in respect of release from a particular place, the anniversary day of the region in which that place is situated

notional single sentence means the notional single sentence of imprisonment that is created when one determinate sentence is directed to be served cumulatively on another determinate sentence

offender includes a person who is dealt with, or is liable to be dealt with, for non-payment of a sum of money, disobedience of a court order, or contempt of court

parole eligibility date means the date on and after which an offender who is subject to a sentence of imprisonment is eligible to be released on parole (see sections 240 and 241 )

penal institution means a penal institution established under the Penal Institutions Act 1954

post-cd sentence means a sentence of imprisonment that is imposed on or after the commencement date

postponement order means an order made under section 183 that postpones the date of an offender's next parole hearing

pre-cd sentence means a sentence or term of imprisonment that is imposed before the commencement date

probation area means an area designated by the chief executive for the administration of release conditions, community-based sentences, or orders

(a) a hospital as defined in section 2(1) of the Mental Health (Compulsory Assessment and Treatment) Act 1992:

(b) an institution as defined in section 2 of the Alcoholism and Drug Addiction Act 1966

release conditions means the standard release conditions and any special conditions imposed by- (a) the sentencing court, in respect of a short-term sentence; or (b) the Board, in respect of an offender who is released on parole or at his or her statutory release date from a long-term sentence; or (c) the Minister, in respect of an offender released on com-passionate release

release date means, in relation to a determinate sentence of imprisonment, the date on which the offender who is subject to the sentence ceases to be liable to be recalled to continue serving that sentence in a penal institution (see section 238 )

sentence expiry date means the date on which the offender subject to the sentence has served its full term (see section 237 )

(b) does not include a sentence of imprisonment imposed under the Armed Forces Discipline Act 1971, except in section 210

(a) a determinate sentence of 24 months or less; or (b) a notional single sentence of 24 months or less

special conditions means conditions of a type referred to in section 173

standard detention conditions means the standard conditions of detention applying to home detention, as set out in section 191(1)

standard release conditions means the standard conditions of release applying to parole or release at the statutory release date of a long-term sentence, as set out in section 172

start date, in relation to a sentence of imprisonment, means the date on and from which an offender who is subject to the sentence begins to be subject to it (see sections 231 to 236 )

statutory release date means the date on and after which an offender who is subject to 1 or more sentences of imprisonment ceases to be liable to be recalled to continue serving any of those sentences in a penal institution (see section 239 )

victim means (unless provided otherwise), in relation to an offender, a person who has made a request under section 11(1) of the Victims of Offences Act 1987.

(2) In this Act, a reference to section 2 of the Criminal Justice Act 1985, or to Part IV or Part VI (or any provision within those Parts) of the Criminal Justice Act 1985, is a reference to that section, Part, or provision as it was immediately before the commencement date.

(1) This section is intended to give a broad overview of how and when offenders are released from custody and released from imprisonment. It does not confer rights or impose obligations, and if there is an inconsistency between this section and any other, the other section prevails.

(2) Unless an offender has been released earlier under this sub-part, he or she must be released from imprisonment on his or her statutory release date, and after that is no longer subject to recall but may be subject to release conditions for up to a further 6 months.

(a) the offender is detained at an approved residence (rather than in a penal institution) on detention conditions imposed by the Board:

(b) the offender is not in custody, and his or her social welfare entitlements are the same as if he or she were not detained:

(c) if the offender is serving a short-term sentence, he or she may apply to the Board for home detention only if the court has granted the offender leave to apply:

(d) if the offender is serving a long-term determinate sentence, he or she may apply to the Board for home detention before his or her parole eligibility date, and may be released up to 3 months before that date.

(6) Compassionate release may be granted by the Minister to any offender in any 1 of 3 exceptional situations. It is subject to conditions set by the Minister and is revokable at will by the Minister.

(1) When making decisions relating to the release of an offender under this subpart, the paramount consideration for the Board in every case is the protection of the community.

(2) Other principles that must guide the Board's decisions under this subpart are-

(a) that offenders should not be detained in custody any longer than is consistent with the protection of the community, and that they should not be subject to release conditions or detention conditions that are more onerous, or last longer, than is consistent with the protection of the community; and

(b) that offenders should be provided with information about decisions that concern them, and be advised how they may participate in decision-making that directly concerns them; and

(c) that decisions should be made on the basis of the fullest information that is available to the Board at the time; and

(d) that the rights of victims are upheld and victims' sub-missions are given due weight.

(1) This subpart applies to all offenders who are subject to a sentence of imprisonment, whether they are subject to pre-cd sentences, post-cd sentences, or both.

(2) Nothing in this subpart affects any decision made about an offender before the commencement date under Parts IV or VI of the Criminal Justice Act 1985.

(3) After the commencement date, any application made, or hearing or proceeding commenced, under Part VI of the Criminal Justice Act 1985 must be concluded as if the application had been made, or the hearing or proceeding commenced, under this subpart; and this subpart applies with all necessary modifications.

(1) The Board must take all reasonable steps to ensure that all written information on which the Board will make any decision relating to an offender is made available to the offender-

(a) no information is given to the offender that discloses the address or contact details of any victim of the offender (within the meaning of section 2 of the Victims of Offences Act 1987); and

(b) the offender does not keep or copy any written submissions made by the victim (within the meaning of section 2 of the Victims of Offences Act 1987), or any victim impact statement; and

(c) any information referred to in paragraph (b) is returned to the Board at the conclusion of the hearing to which the information relates.

(3) Despite subsection (1) , the Board may withhold from an offender any written information that, in the opinion of the relevant panel convenor, would prejudice the mental or physical health of the offender, or endanger the safety of any person.

(4) Subsections (2) and (3) apply despite anything in the Official Information Act 1982 or the Privacy Act 1993.

(5) Information withheld under subsection (3) may be provided to the offender's counsel, but in no circumstances may counsel disclose that information to the offender.

(6) The Board must give to an offender a written copy of every order or determination that the Board makes that relates to the offender.

(1) An offender who is subject to the standard release conditions must comply with the following conditions:

(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 release:

(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 con-sent of the 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 the 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 the 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 the probation officer has, in writing, directed the offender not to associate.

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

(1) Any offender released under this subpart (other than an offender released at the statutory release date of a short-term sentence) may be made subject to special conditions, unless this Act provides otherwise.

(2) A special condition may not be imposed unless it is designed to reduce the risk of reoffending by the offender and is useful or necessary-

(3) The kinds of conditions that may be imposed as a special condition include, without limitation,-

(a) conditions relating to the offender's place of residence (which may include a condition that the offender resides at a particular place), or his or her finances or earnings:

(b) conditions requiring the offender to participate in a programme (as defined in section 174 ) to reduce the risk of further offending by the offender through the rehabilitation and reintegration of the offender:

(4) No offender may be made subject to special conditions involving medical treatment or a surgical procedure unless the offender consents to the treatment or procedure.

(5) The withdrawal of consent to medical or surgical procedures is not a breach of conditions for the purposes of section 227 , but may amount to a change of circumstances that provides grounds for recall.

(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, or of any agency.

(1) An offender who, on his or her statutory release date, is in a penal institution serving a sentence of imprisonment must be released from imprisonment on that date.

(2) An offender who, on his or her statutory release date, is detained on home detention, is released from detention conditions on that date, and on and from that date is no longer liable to be detained under a sentence.

(3) An offender who, on his or her statutory release date, is detained in, or on leave from, a psychiatric institution is no longer liable to be detained under a sentence on and from that date.

(1) An offender who is released from a penal institution or from home detention on his or her statutory release date is subject to,-

(2) In relation to an offender who is released at the statutory release date of a long-term sentence, the Board-

(3) An offender who is detained in, or on leave from, a psychiatric institution and who is released at his or her statutory release date-

(4) This section is subject to section 214 (which relates to the variation and discharge of conditions).

(1) The Board must consider for release on parole every offender who is detained in a penal institution and who has a parole eligibility date-

(2) The Board need not consider an offender in accordance with subsection (1)(b) if, when the offender is due to be considered for parole, the offender is-

(3) An offender to whom subsection (2)(b) or (c) applies must be considered for parole by the Board on the later of-

(4) If the parole eligibility date of an offender who has been considered under subsection (1) subsequently changes, the Board must consider the offender on the later of-

(5) Subsection (1)(b) applies to every offender to whom subsection (3) subsection (4) applies as if the date of the parole hearing determined under those subsections were the offender's parole eligibility date as referred to in subsection (1)(a) .

(6) For the sake of administrative efficiency, the Board may consider an offender for release on parole at any time within the month preceding the date on which the offender is due to be considered by the Board; but in no case may an offender who is considered early under this subsection be released on parole before his or her parole eligibility date.

178 Consideration for parole of offenders on home detention or compassionate release

(1) An offender who is subject to a long-term sentence and is on home detention must be considered by the Board for parole at least once in every 3 months.

(2) An offender who is released on compassionate release may not be considered for parole by the Board. Compare: 1985 No 120 s 97(2)

179 Consideration for parole of offenders detained in psychiatric institution

(1) An offender who is subject to a long-term determinate sentence and who is detained in (or is on leave from) a psychiatric institution may not be considered for parole by the Board.

(2) An offender who is subject to an indeterminate sentence and who is detained in (or is on leave from) a psychiatric institution must be considered for parole by the Board, and section 177, and sections 180 to 186 apply.

(3) However, if the Board directs the release of an offender to whom subsection (2) applies, the standard conditions do not apply to the offender and the Board may not impose special conditions on him or her.

(5) An offender to whom subsection (2) applies, and who is released on parole, remains liable to recall for life.

180 Consideration of offenders unlawfully at large when due to be considered for parole

(1) An offender who is unlawfully at large on the date on which he or she is due to be considered for parole must be considered by the Board for parole on the later of-

(a) the date that is 12 months after his or her return to custody (or as soon as practicable after it); or

(b) if the offender, after being returned to custody, has a new parole eligibility date, the offender's parole eligibility date (or as soon as practicable after it).

(2) Section 177(1)(b) applies to an offender to whom this section applies as if the date of the parole hearing determined under subsection (1) were the offender's parole eligibility date as referred to in section 177(1)(a) .

(1) The chairperson of the Board may refer an offender who has not yet reached his or her parole eligibility date for consideration by the Board for parole.

(2) The Minister of Corrections may designate a class of offenders who have not yet reached their parole eligibility dates for consideration by the Board for parole.

(3) The Board must, as soon as practicable, consider for parole any offender referred to it under subsection (1) and every offender belonging to a class designated under subsection (2) .

(4) Despite subsection (13) , the Board may not consider under this section an offender who is subject to any of the following orders:

(5) The Board may, if, in the opinion of the Board, it is in the interests of justice to do so, make an order under section 184(1) directing the release on parole of an offender considered under this section.

(1) The Board may, at any time after an offender's parole eligibility date, consider the offender for release on parole at a time other than when the offender is due to be considered for parole, and may make an order under section 184(1) directing his or her release on parole.

(2) An offender may, at any time, apply to the Board to exercise its discretion under subsection (1) to consider the offender for parole.

(1) If the Board is satisfied that, in the absence of a significant change in the offender's circumstances, an offender will not be suitable for release at the time when he or she is next due to be considered for parole, the Board may make a postponement order in relation to the offender.

(2) If the Board makes a postponement order, it must specify the date by which the offender must be further considered for parole, which,-

(3) Despite being subject to a postponement order, an offender may at any time apply to the Board requesting consideration for parole on the grounds that there has been a significant change in his or her circumstances.

(5) The Board may not make a postponement order in relation to an offender unless it has first-

(1) The Board may, after a hearing at which it has considered whether to release an offender on parole, direct that the offender be released on parole.

(2) The Board may give a direction under subsection (1) only if it is satisfied that the offender, if released on parole, will not pose an undue risk to the safety of the community within the term of the sentence, having regard to-

(3) If the Board directs the release of an offender on parole, it must specify the date on which the offender is to be released, which must be a date that is-

(4) Despite subsection (3)(b) , the Board may, in exceptional circum-stances, specify a date for release that is a Thursday or a Friday.

(5) The Board may revoke or amend any direction under this section at any time before the offender is released on parole, but, if it does so, the Board must hold another parole hearing as soon as practicable.

(1) The Board must specify, in respect of every offender who is released on parole,-

(2) If an offender who is released on parole is subject to a determinate sentence, the Board must impose the standard release conditions for a period of at least 6 months, but it may impose them for any period up to a maximum of 6 months beyond the offender's statutory release date.

(3) If an offender who is released on parole is subject to an indeterminate sentence, the Board must impose the standard release conditions on the offender for the rest of the offender's life.

(4) If the Board imposes special conditions on an offender who is released on parole, the special conditions may apply for as long as, but no longer than, the standard release conditions apply to the offender.

The release conditions of an offender who is on parole are suspended during any period that the offender spends in custody under a court order or an interim recall order.

(1) An offender who has been released on parole ceases to be on parole when any 1 of the following occurs:

(2) All release conditions imposed by the Board are cancelled when an offender ceases to be on parole.

(1) An offender who is subject to a short-term sentence and who has leave to apply for home detention (under section 86 or section 21D of the Criminal Justice Act 1985) may apply to the Board for home detention at any time.

(2) An offender who is subject to a long-term determinate sentence may apply to the Board for home detention at any time after the date that is 5 months before the offender's parole eligibility date.

(3) An application for home detention must be for release in respect of an area where the chief executive is operating a home detention scheme.

(4) The Board must consider every application for home detention as soon as practicable.

(5) For the purposes of considering an application by an offender referred to in subsection (1) , every reference in this subpart to a victim means a victim as defined in section 2 of the Victims of Offences Act 1987.

(1) On receiving an application under section 188 for home detention, the Board must request a report from a probation officer on the offender's suitability for home detention, and the report

(a) generally, the likelihood of the offender committing further offences while on home detention; and

(b) the nature of the offence or offences for which the offender is currently serving a sentence of imprisonment; and

(c) the welfare of the offender and the likelihood that his or her rehabilitation and reintegration will be assisted by home detention; and

(d) the safety and welfare of the occupants of the residence where the offender is to be detained; and

(e) any submissions made by the victims of the offender; and

(f) the report of a probation officer referred to in subsection (1) .

(1) The Board may direct an offender who has applied for home detention to continue serving his or her sentence on home detention.

(2) The Board may give a direction under subsection (1) if it is satisfied that-

(a) the offender will not pose an undue risk to the safety of the community if he or she is detained on home detention rather than in prison; and

(b) the offender is suitable for home detention; and

(c) the occupants of the approved residence in which the offender will be detained understand the conditions of the offender's detention and consent to the offender's detention in that residence in accordance with those conditions; and

(d) the offender has been made aware of and understands the conditions that will apply during home detention, and he or she agrees to comply with them.

(3) The Board may direct that an offender who is subject to a long-term sentence may commence home detention at any time after the date that is 3 months before the offender's parole eligibility date.

(4) The Board may direct an offender to be detained on home detention only in an area in which a home detention scheme is operated by the chief executive.

(5) If the Board declines to direct an offender to continue serving his or her sentence on home detention, it may (on application or of its own motion) from time to time reconsider its original decision on the offender's application.

(6) The Board may revoke a direction under this section at any time before the offender is released from a penal institution to commence home detention but, if it does so, the Board must hold another hearing as soon as practicable.

(1) An offender who is directed to be detained on home detention is subject to the following standard detention conditions:

(a) the offender is under the supervision of a probation officer and must co-operate with, and comply with any lawful direction given by, that probation officer:

(b) the offender must not at any time leave the approved residence where he or she is detained on home detention, except-

(i) to seek or engage in employment approved by a probation officer; or

(ii) to seek urgent medical or dental treatment; or

(iii) to avoid or minimise a serious risk of death or injury to the offender or any other person; or

(iv) to attend training or other rehabilitative or reintegrative activities or programmes approved by a probation officer; or

(v) for any other purpose that a probation officer may from time to time approve:

(c) the offender must keep in his or her possession the licence issued under section 208 and, if requested to do so by a police officer or a probation officer, produce the licence for inspection:

(d) the offender must comply with any other special conditions imposed by the Board.

(2) Before directing an offender to continue serving his or her sentence on home detention, the Board must consider requiring the offender to undertake a programme as a special condition.

(3) The Board may impose any special conditions on the offender in addition to the standard detention conditions.

(4) An offender on home detention- (a) is not in custody while on home detention; and (b) is liable to recall until the offender's statutory release date.

(5) An offender on home detention may at any time apply to the Board for a direction returning the offender to a penal institution.

192 Home detention does not affect entitlements under Social Security Act 1964

The fact that a person is on home detention does not, of itself, affect any entitlement the person may have under the Social Security Act 1964.

The detention conditions of an offender who is on home detention are suspended during any period that the offender spends in custody under a court order or interim recall order.

(1) An offender ceases to be on home detention when any 1 of the following occurs:

(a) the offender reaches his or her statutory release date, in which case section 176(1) applies; or

(b) in the case of an offender who is subject to a long-term sentence, the offender is released on parole, in which case sections 184 and 185 apply; or

(d) the sentence to which the home detention relates is quashed or otherwise set aside; or

(e) the offender is released on compassionate release; or

(f) the offender is returned to a penal institution following an application under section 191(5) .

(2) All detention conditions are cancelled when an offender ceases to be on home detention.

Part 3: Parole and other release from imprisonment