Criminal Justice Reform Bill Government Bill As reported from the Justice and Electoral Committee Commentary Recommendation The Justice and Electoral Committee has examined the Criminal Justice Reform Bill and recommends by majority that it be passed with the amendments shown. Introduction The Criminal Justice Reform Bill introduces a range of measures to reform the criminal justice system. Part 1 of the bill proposes the establishment of a Sentencing Council, which would be responsible for issuing sentencing and parole guidelines. Part 2 of the bill proposes amendments to Acts relating to criminal justice, including the Bail Act 2000, the Sentencing Act 2002, the Parole Act 2002, and the Prisoners' and Victims' Claims Act 2005, and includes provisions for the introduction of an explicit hierarchy of sentences and orders and three new non-custodial sentences. We have considered the proposed amendments to this bill set out in Supplementary Order Paper 99, in the name of the Hon Mark Burton. We have incorporated those portions of the supplementary order paper that we support into our recommendations on this bill. This commentary focuses on the main amendments we recommend to the bill and outlines the main issues we considered. It does not cover minor or technical amendments. Sentencing Council Part 1 of the bill proposes the establishment of a Sentencing Council, with administrative provisions contained in Schedule 1. Part 2 of the bill includes consequential amendments to the Sentencing Act 2002 as a result of the establishment of the proposed Sentencing Council. The key purposes of the Sentencing Council would include producing guidelines for sentencing and parole; informing members of Parliament and policy makers about sentencing and parole practice and reform; and informing and educating the public about sentencing and parole policies and decision-making. We recommend a number of minor amendments for clarity to parts of the bill relating to the Sentencing Council (for example, an amendment to clause 9(a)(iv) to make it clear that the Sentencing Council is not itself responsible for managing penal resources) and a number of minor amendments to terminology (including the replacement of the term "prison muster" with "prison population"). The major amendments we recommend to parts of the bill relating to the Sentencing Council are set out below. Membership of Council and appointment of members Clause 11 establishes the membership of the Council. The Council would consist of five judicial members (who would be appointed by the judiciary) and five non-judicial members, who would be appointed by the Governor-General on the recommendation of the House of Representatives. As introduced, the bill proposes that the chairperson of the Council be one of the non-judicial members. We recommend that clause 11(2) be amended to provide for the Chief Justice to appoint one of the judicial members as the Council's chairperson; and that clause 11(3) be amended to provide for the appointment of a non-judicial deputy chairperson. We consider that the appointment of a judicial chairperson would encourage judicial confidence in the Council, and would also be more likely to help the Council to achieve one of its core purposes, consistency in sentencing. We recommend the addition of clause 11(3A) to provide discretion for the chairperson to delegate their functions to the deputy chairperson on a continuing basis. Under the bill as introduced, delegation would be allowed only if the chairperson were absent or unable to act. We consider that allowing a wider discretion for the chairperson to delegate functions would help to ensure that the Council could function under most circumstances. We recommend that clause 1 of Schedule 1 of the bill, which proposes the establishment of criteria governing the recommendation for appointment of the non-judicial members of the Council by the House of Representatives, be amended to streamline the criteria that the House may consider in regard to a proposed appointment, and to remove the mandatory aspect of the House's consideration of the criteria. We consider the clause as introduced is too prescriptive and places undesirable constraints on the House and its ability to regulate its own procedures. We note that a number of the matters included in the clause as introduced could be expected to be addressed in the parliamentary debate on a proposed appointment. We recommend that clause 2 of Schedule 1 of the bill be deleted. This clause sets out the reasons that a member might be disqualified from membership of the Sentencing Council. We consider that this clause is unnecessary as the criteria for non-judicial appointments are established elsewhere, and other members will be members of the judiciary. Parliamentary scrutiny of guidelines We recommend that clauses 19 to 23 of the bill, which provide for parliamentary scrutiny of guidelines issued by the Sentencing Council, be replaced by new clauses 19 to 22. As introduced, the clauses provide for a specific process by which the House may disallow a group of guidelines. We note that parliamentary procedure is a matter for the House itself to determine, and that rules regarding parliamentary procedure are matters for the House itself to control. We consider that attempting to regulate parliamentary procedure in legislation is inappropriate. We recommend the replacement of clauses 19 to 23 to prevent this from happening. We are confident that the Standing Orders, and current House practices and conventions, would provide sufficient guidance to the House on dealing with these guidelines. We suggest that the Standing Orders Committee may wish to consider reviewing the Standing Orders to ensure that a consistent approach is taken to negative resolution procedures. In particular, we encourage the committee to consider whether it would be appropriate to provide for instruments that are subject to negative resolution provisions to be referred to the appropriate subject select committee for consideration when presented to the House. In addition, we recommend replacing the expression "disallow"---which already has a specific meaning in legislation---with the expression "disapply" throughout "(disallow" is taken to refer to the revocation of legislation or an instrument that is already in force. "Disapply" can be taken to refer to parliamentary action designed to prevent a regulation or instrument from entering into force in the first place). The bill provides specific periods during which the House may disapply guidelines "(disapplication period"). As introduced, the bill lacked certainty as to the effect of the dissolution of Parliament on a disapplication period. We recommend that the new clauses inserted make it clear that, in the event of a dissolution of Parliament during a disapplication period, the entire disapplication process must begin again in the new Parliament. We consider that it is vital that the entire disapplication period take place during the term of a single Parliament, to ensure that the House has enough time to consider fully the guidelines and their potential impact. Requests for consideration of issues Clause 26 of the bill provides that specific individuals may request that the Sentencing Council consider particular issues relating to sentencing guidelines. We recommend that clause 26 be amended so that both the Solicitor-General and the President of the New Zealand Law Society can make requests of the Council in relation to sentencing and parole guidelines. We consider that this will aid the function of the Council without impinging on its independence. Amendments to the Sentencing Act 2002 Combination of sentences We recommend that clause 39, which inserts proposed new sections 19 and 20 into the Sentencing Act, be amended to reflect the existing law on combinations of sentences. The new sections, as introduced, do not reflect the existing law regarding offenders who are already serving a sentence when being sentenced. We consider that the current law should be maintained and that the clause should be amended for clarity and practicability. Special conditions We recommend clarifying that if the court imposes a special condition that an offender take prescription medication, the offender's withdrawing consent to take that medication may be grounds for variation or cancellation of a sentence of supervision or intensive supervision (clauses 49 and 50). We considered in detail the implications of a court's ability to impose special conditions, which may include medical intervention (including psychiatric or medical treatment). Our main concern was that the bill, as introduced, might not make it sufficiently clear that a condition involving medical intervention requires the offender's consent to such treatment, which may be withdrawn at any time. We were concerned that this lack of clarity might impact on the right of an individual to refuse to undergo medical treatment. However, we are satisfied that the proposed wording, which is the same as that currently used regarding the sentence of supervision and the current home detention regime, preserves the right of an offender to withdraw consent for such treatment, and balances this with the responsibility to ensure public safety. Epidemic management notice We have made several recommendations for amendments to the bill to provide flexibility in the management of non-custodial sentences when an epidemic management notice is in force. We recommend that the bill be amended to provide that, when an epidemic management notice is in force, a probation officer may vary or suspend standard conditions of a sentence of supervision or intensive supervision; vary a curfew period or vary or suspend conditions of a sentence of community detention; vary special conditions and post-detention conditions of a sentence of home detention; and vary or suspend standard conditions of a sentence of home detention. We recommend that new clause 57A be inserted in the bill to amend section 69A of the Sentencing Act to clarify that when an epidemic management notice is in force, a probation officer can extend the total period during which a sentence of community work must be served by up to 12 months. The bill, as introduced, requires an offender sentenced to community work of more than 100 hours to serve at least 100 hours in every six-month period. We consider that it should be made clear it is only the total period of the sentence that can be extended up to 12 months. Community work A sentence of home detention may include special conditions that conflict with a sentence of community work. We recommend that clause 54 be amended to enable the court to defer the commencement of a sentence of community work imposed in combination with a sentence of intensive supervision or home detention if it considers it necessary to enable the offender to comply with any conditions of the sentence of intensive supervision or home detention. When hours of community work not counted Proposed new section 66D of the Sentencing Act, inserted by clause 57, provides that if an offender fails to carry out any work under a sentence of community work satisfactorily, the probation officer may refuse to treat up to ten percent of the hours worked as part of the work undertaken under the sentence. It was unclear whether this referred to up to ten percent of the total hours of work undertaken under the sentence, or ten percent of the hours of work performed unsatisfactorily. We recommend amendments to clarify that the number of hours that a probation officer may refuse to treat as work undertaken must not exceed ten percent of the total number of hours under the sentence. Provisions for community detention We recommend that clause 58 be amended so that proposed new section 69C of the Sentencing Act provides that community detention can be imposed for any one or more of the purposes in section 7(1)(a), (b), (e), or (f) of the Act. This would allow community detention to be used not only to reduce the likelihood of reoffending, but also as a punitive sentence, particularly in the context of default on fines or non-compliance with lesser sentences. We consider that this amendment would provide a useful addition to the range of punitive sentences available, between community work and home detention. We recommend that clause 58 be amended by adding a provision that the non-custodial sentence of community detention would not of itself affect any entitlements under the Social Security Act 1964. Proposed new section 80ZE of the Sentencing Act makes this clear regarding the new sentence of home detention, and we consider it necessary that a similar provision be added for community detention. Curfew We recommend that clause 58 be amended so that proposed new section 69E of the Sentencing Act includes an exception to the requirement that offenders must report in person to a probation officer within 24 hours of a community detention sentence being imposed. If such a sentence were imposed the day before a weekend or public holiday, the offender would have to report by the end of the following working day. We consider that this is more practical, as it might be difficult for an offender to report to a probation officer if the sentence is imposed immediately before a weekend or public holiday. We recommend that clause 58 be amended to clarify new section 69I of the Sentencing Act to the effect that the court may vary the curfew address on application by the offender or a probation officer. This amendment should provide flexibility and provide a mechanism to allow an offender serving a sentence of community detention to change residence if necessary. Home detention Under the bill, home detention would be introduced as a new non-custodial sentence. Currently home detention is available only to offenders who have been sentenced to imprisonment, and means that a portion of their sentence is undertaken in a monitored community environment. The bill provides that home detention as a separate sentence would no longer be available to those sentenced to imprisonment (except to those granted home detention over a transitional period established by the bill, or with applications yet to be dealt with). We note that, whilst the bill would change the status of home detention, the way it is currently administered would, in essence, remain unchanged. We recommend amendments to sections 39A and 65A of the Bail Act 2000 (clauses 31 and 32 of the bill) to require an offender whose sentence has been deferred under section 80V of the Sentencing Act to advise a probation officer, as soon as possible, of changes affecting the availability or suitability of the home detention residence during the deferment period. The bill as introduced does not specifically provide for changes in circumstances that affect the suitability of a home detention residence during the deferment period. We recommend that clause 65 be amended so that proposed new section 80F of the Sentencing Act makes it clear that the variation and cancellation procedure can be used during any period in which the start of the sentence is deferred. We consider that the court should be provided with the authority to cancel or vary a sentence of home detention, even before its commencement. We recommend that clause 65 be amended so that proposed new section 80F of the Sentencing Act provides that a court may vary the home detention residence. This would provide consistency with our proposed amendment to new section 69I, which clarifies the court's ability to vary the curfew address for a sentence of community detention. We recommend requiring that before a court can sentence an offender to home detention the court must be satisfied that the relevant occupants of a home detention residence have been informed of their right to withdraw consent to an offender serving a sentence at the residence (proposed new section 80A of the Sentencing Act, as inserted by clause 65). This is current practice, but is not codified in law. We consider it important that relevant occupants should be aware of their right to withdraw consent to an offender serving a sentence of home detention at that residence. We also recommend that proposed new section 80A of the Sentencing Act be amended so that the court is required to specify the home detention residence. This will provide consistency with proposed new section 69A(3), which requires the court to specify the community detention address. We recommend that clause 65 be amended so that proposed new section 80X of the Sentencing Act requires an offender who has been temporarily surrendered to New Zealand for trial or sentence under the Extradition Act 1999 to advise, as soon as possible, of any change in circumstances affecting the availability or suitability of their home detention residence before the offender commences the sentence on return to New Zealand. We consider that it is practical for an offender who is sentenced to home detention to notify any change in circumstances as soon as possible, rather than waiting until they return to New Zealand. We recommend that clause 140 be amended to provide that the current provisions for home detention continue to apply to offenders who have been granted leave to apply for home detention under section 97 of the Sentencing Act, but have not applied before the commencement of the clause. This amendment is transitional and not intended to be preserved. However, we consider that this bill constitutes a considerable change to the law, and that some leeway should be granted regarding home detention applications. Interpretation We recommend that clause 34 be amended so that the definition of "probation area" refers to sentences of home detention. Section 4(1) of the Sentencing Act defines "probation area" in regard to "release conditions, community-based sentences, or orders". Since home detention is not a "community-based sentence" it is not captured by the current definition. However we consider the "probation area" definition should be extended to cover home detention. Special conditions We recommend that clause 65 be amended so that proposed new section 80D of the Sentencing Act prohibits the court from imposing special conditions requiring an offender to pay any fine or reparation, or perform any service that he or she could have been required to if sentenced to community work. This will reflect the current law regarding supervision and corresponding provisions regarding intensive supervision. We consider that it is inappropriate for these matters to be the subject of special conditions, as the offender is already required to pay a fine or reparation, and non-payment procedures are covered by the Summary Proceedings Act 1957. The court is also free to impose a sentence of community work should it be considered appropriate. Substitution of home detention for imprisonment We recommend that clause 65 be amended so that proposed new section 80I of the Sentencing Act provides that it is always the court of first instance that considers any application by the offender for cancellation of a sentence of imprisonment and substitution of a sentence of home detention. The clause, as drafted, assumes that an offender is given leave by the sentencing court. However, it is possible that a sentence of imprisonment with leave to apply might be imposed on appeal by a higher court. We consider that the court that initially sentenced the offender should consider any application by the offender, and not the appeal court. We recommend that clause 65 be amended so that the Sentencing Act provides that an application for cancellation of a sentence of imprisonment and the substitution of a sentence of home detention must be accompanied by an updated pre-sentence report (proposed new section 80KA), and that a copy of the offender's application must be served on the chief executive of the Department of Corrections (proposed new section 80K). We consider that the court will require an updated pre-sentence report in these circumstances and this is the appropriate mechanism to ensure that it is provided. We considered amending the bill to allow the Criminal Records (Clean Slate) Act 2004 to apply to offenders who receive leave to apply for home detention when sentenced to imprisonment. The Act does not apply to an offender who has been sentenced to a term of imprisonment. However, it would apply to sentences of home detention. At present, the bill allows an offender to be sentenced to home detention only if a suitable residence can be found. Where a suitable residence is not available, the offender may instead be sentenced to a term of imprisonment, and at the same time may also be granted leave to apply for home detention if a suitable residence is found during the term of the sentence. Under the bill, an offender who is successful in such an application has his or her sentence of imprisonment cancelled rather than quashed, and therefore the Act would still not be applicable.1 1 A cancelled sentence simply ceases to run on the day it is cancelled, whereas a quashed sentence is deemed to have never existed. We considered in detail whether this was fair, and whether---if the judge would have sentenced the offender to home detention if a suitable residence had been available---the Act should be able to be applied once the sentence of imprisonment was cancelled. However, we are comfortable that the Act contains alternatives to sentences of imprisonment in lieu of home detention and that the judiciary will make use of these alternatives appropriately. Most of us are therefore satisfied that the bill does not need amending to address this matter. The Green Party is of the view that offenders who receive leave to apply for home detention when sentenced to imprisonment and subsequently have that leave granted should not have such a sentence considered to be a custodial sentence for the purposes of the Criminal Records (Clean Slate) Act. Judicial monitoring We recommend that clause 65 be amended so that new section 80ZF of the Sentencing Act provides that another judge can undertake judicial monitoring of an offender if the sentencing judge is not available. We consider that this amendment would facilitate the process of judicial monitoring. In addition, we recommend that the clause be amended so that the provision of subsequent judicial monitoring reports every three months is no longer a default position, and is instead reliant on the request of the judge. This should enable judges to manage reports actively rather than relying on the provision of reports by default. We recommend that clause 65 be amended so that proposed new section 80ZH of the Sentencing Act no longer requires an order of attendance for judicial monitoring to specify the reason for the attendance of the offender. We consider that the fact of an order of attendance implies sufficiently that the judge considers it desirable for the administration of the sentence, or for the rehabilitation or re-integration of the offender. Other amendments to sentences of home detention We recommend that clause 65 be amended by deleting proposed new sections 80ZB and 80ZD(1) of the Sentencing Act. We consider that the proposed 80ZB is unnecessary, and that the proposal contained in 80ZD(1) (relating to an offender keeping a copy of an order for home detention in his or her possession) is already provided for in proposed new subsection 80C(2)(c). We recommend that clause 65 be amended by inserting a new provision (new section 80ZEA) to clarify the application of the Injury Prevention, Rehabilitation, and Compensation Act 2001 to offenders serving home detention sentences. Any personal injury arising out of the performance of any service or work or attending any course or programme for the purposes of a sentence of home detention would be deemed work-related for the purposes of section 97 of the Injury Prevention, Rehabilitation, and Compensation Act, and the Crown would be liable for any compensation payable. This is the current situation for existing community-based sentences. We consider that in effect the Crown is responsible for the work or course of an offender's sentence, and should therefore be required to pay appropriate compensation for any resulting injury. We recommend that clause 65 be amended by inserting a new provision (new section 80ZEB) similar to sections 78, 79, and 80 of the Sentencing Act. This provides that when an offender serving a sentence of home detention is subsequently sentenced to imprisonment, the home detention sentence is suspended, to be either resumed if the sentence of imprisonment is quashed, or cancelled at the completion of the sentence of imprisonment. We consider that the two sentences are not compatible, and the lesser sentence of home detention should be suspended when an offender is sentenced to imprisonment, to be resumed or cancelled depending on the circumstances. Electronic monitoring equipment We recommend that clause 58 be amended so that proposed new section 69F of the Sentencing Act requires the destruction of information obtained by electronic monitoring equipment outside an offender's curfew period with the exception of information required to verify that the electronic monitoring equipment is operating effectively and accurately. We consider that, on the whole, only information obtained during the curfew period should be used, and any information gathered on an offender outside this period is to be regarded as extraneous and destroyed. We are mindful that the practicalities of electronic monitoring may require the Department of Corrections to gather limited information outside the curfew period. We consider that, in the interest of workability, this should be permitted. We recommend amendments to make it an offence to refuse entry to a probation officer or a person accompanying or authorised by a probation officer to service or inspect the electronic equipment used in monitoring an offender on community detention (proposed new section 69H, clause 58) or home detention (proposed new section 80S, clause 65). We also recommend amendments to clarify that a person accompanying or authorised by a probation officer must provide proof of authorisation before entry. We recommend that clause 58 be amended to provide that if the last day of an offender's sentence of community detention falls on a non-release day, such as a Saturday or Sunday, the offender ceases to be subject to the sentence on the nearest preceding release day. This would have the effect that the electronic monitoring equipment would be removed on the nearest preceding release day. Warrant of commitment We recommend that a new clause be inserted in the bill to repeal subsections 91(4) and (5) of the Sentencing Act (clause 68A). These subsections respectively require a warrant of commitment to include a statement on whether section 97 applies to the offender, and whether the court has granted leave under that section. As section 97 of the Act is being repealed by the bill, these two subsections are no longer necessary. Parole Act 2002 We recommend inserting clauses 83A, 83B, 90A, 110A, 114A, 115A, 139A, and 139B in the bill as laid out by Supplementary Order Paper 99. Confidentiality orders Most of us recommend that clause 83A be inserted in the bill, amending section 13 of the Parole Act 2002. This provision would allow information subject to a confidentiality order, made under new section 13AB as proposed by clause 83B, to be withheld from an offender. This would allow the Commissioner of Police or the chief executive of the Department of Corrections to submit confidential information to the Parole Board in exceptional circumstances. We consider that this would provide the Parole Board with potentially useful information relevant to its consideration. However, such confidentiality orders should be made only in exceptional circumstances. Most of us recommend that new clause 83B be inserted in the bill. This clause inserts new sections 13AA to 13AE into the Parole Act, and establishes the statutory process of making, the effect of, and the variation or rescission of, confidentiality orders. We consider that the statutory right to apply, by affidavit, for a confidentiality order should be restricted to the Commissioner of Police and the chief executive of the Department of Corrections, and that it should not be able to be delegated. We consider it important that even if an order is made, it should remain the prerogative of the chairperson of the Parole Board or a panel convenor to decide whether or not to give weight to the information subject to the order, while at all times maintaining confidentiality. If the chairperson or panel convenor refused to make a confidentiality order, the information could not be disclosed and all the relevant documents would have to be returned to the applicant. Most of us recommend that a confidentiality order should be made only with regard to information that is relevant to a current matter concerning an offender. This would limit the effect of the order to matters currently being considered by the Parole Board. Most of us also recommend changes to allow the chairperson or a panel convenor, on application, to vary or rescind the order if satisfied that this is necessary because of a change in circumstances. Most of us consider that this would provide more flexibility without compromising confidentiality. Most of us recommend that clause 115A be inserted in the bill to amend section 67(2) of the Parole Act. This would prohibit an offender from applying for the review of any decision on whether to make an order or to vary or rescind an order. Most of us consider that this is necessary to ensure the preservation of confidentiality of information subject to orders. These amendments would require the addition of provisions maintaining confidentiality in court proceedings and an exemption from sections 13 and 65 of the Parole Act, the Official Information Act 1982, and the Privacy Act 1993 (proposed new section 13AC, clause 83B). Most of us are satisfied that the proposed amendments would enable the Parole Board, in exceptional circumstances, to receive confidential information on an offender without disclosing it to the offender or his or her counsel. Most of us consider that these amendments would provide a practical balance between ensuring that the Parole Board can receive information relevant to public safety and the offender's rights, and ensuring appropriate confidentiality and disclosure. The Green Party is of the view that these clauses are a basic affront to the principles of natural justice. They are inappropriately modelled on deeply flawed anti-terrorism legislation and we are fundamentally opposed to them. Entitlement to release on parole We recommend inserting clause 90A regarding the release of an offender on parole. This would amend section 28 of the Parole Act by adding a provision stating that the Parole Board, during its consideration of whether to release an offender on parole, must bear in mind that the offender has no automatic entitlement to be released. We consider that this provision should make it clear that release on parole is a privilege rather than a right. Police advised of offenders' release from prison We recommend amending clause 109 regarding the requirement to advise the Police of an offender's release from prison. This would substitute section 54 of the Parole Act to ensure that the Police receive advance notification of release, and that they could be advised as soon as the Parole Board had directed the release of a prisoner or set release conditions. We consider that if the Police receive timely notification of the pending release of an offender, they will benefit from having more time to decide whether any further steps in relation to the release of the offender are warranted. Recall to prison from parole We recommend amending clauses 112 and 113 regarding the recall of an offender to prison from parole. This would amend sections 60 and 61 of the Parole Act and authorise the Commissioner of Police to apply to the Parole Board to have an offender recalled to prison if the offender posed an undue risk to public safety; and it would make it clear that an offender is liable to be recalled to prison if he or she commits an offence punishable by imprisonment, regardless of whether it results in a conviction. We consider that these amendments are desirable as often the Police are privy to information that suggests an offender on parole could be an undue risk to public safety. This amendment would enable the Police to apply directly to the Parole Board, which could then decide whether or not to recall an offender. If an offender commits an offence punishable by imprisonment while on parole, it is up to the Parole Board to decide whether or not to recall the offender. We consider that this amendment clarifies the original intention of section 61 of the Parole Act, which has been brought into doubt by a recent judicial interpretation. Extended supervision orders We recommend that clause 131A be inserted in the bill to provide that the court may impose interim special conditions on an extended supervision order until the Parole Board decides whether to impose special conditions. Currently only the Parole Board can impose special conditions on an extended supervision order. We consider it problematic that the Board may on occasion not be able to meet before a prisoner's statutory release date. Enabling the court to impose interim special conditions would ensure that a prisoner could not be released under the standard conditions of an extended supervision order, when more restrictive conditions are necessary. We recommend that clause 132 be amended to clarify that a person subject to an extended supervision order may be required not to have any form of contact with children, their victim, or other specified persons. We are concerned that the term "associate" as drafted by the bill will not encompass all forms of contact and recommend that this be expressed in greater detail. Parole Board to summon witnesses We recommend inserting clause 139B, introducing new sections 118A to 118D empowering the Parole Board to summon witnesses. New section 118A would authorise the Parole Board, on its own initiative, to summon any person to either attend and give evidence to the Board or provide any specified items or information. We are mindful that this process is not intended to act in the same way as a judicial subpoena, but rather to assist the Board to conduct its deliberations in the manner of an inquiry (as indicated in section 49(1) of the Parole Act). We also consider that a witness should be provided with a travelling allowance and expenses for attending a hearing of the Board. New sections 118B to 118D provide respectively for the service of a summons, the protection of the witness, and offences. We consider it necessary that a witness be provided with the same privileges and immunities as a witness in a court of law. In addition, we consider that the bill should provide a list of offences applicable to a person who fails to comply with a summons. We consider it important that the Parole Board may summon witnesses to contribute to its assessment of risk in ordinary parole cases. Currently, the Parole Act does not specifically provide for the Board to summon witnesses and its authority in this regard is unclear. The proposed amendments should clarify the Parole Board's authority and facilitate its access to potentially useful information. Amendments to Prisoners' and Victims' Claims Act 2005 Most of us recommend that subpart 4 of Part 2 of the bill be deleted. The subpart, as introduced, proposes to amend the expiry date of section 16 of the Act, which relates to the application for compensation sought by claims by prisoners; and section 17(1) of the Act, which relates to the process for compensation payments to be paid to the Secretary for Justice and subsequent processes. Subpart 4 seeks to extend the expiry date of both provisions from 30 June and 1 July 2007 to 30 June and 1 July 2010 respectively. Most of us consider that the expiry dates for both provisions should not be extended. New Zealand Labour members are disappointed that agreement was not reached with New Zealand National and Green Party members to retain sections in the Prisoners' and Victims' Claims Act that apply guidelines to claims by prisoners for compensation and provide a claims process for victims when compensation is awarded. We believe the applicable sections should have been extended until 2010. New Zealand National minority view New Zealand National opposes this bill. It tried, and failed, to have the bill split so that Part 1 (dealing with the establishment of the Sentencing Council) could be dealt with separately from Part 2. Because the bill is not split, National is compelled to produce a minority report for the entire bill. National members have carefully considered the issues surrounding establishment of the proposed Sentencing Council. While they think there is justification for some kind of sentencing guidelines panel to provide guidance to judges on sentencing matters, and thereby improving consistency in sentencing across the country, National members are not persuaded that the model proposed in this legislation is appropriate. They consider it compromises judicial independence. Although an amendment to the bill has been proposed, which will address one concern we had about the chairperson of the proposed Council, we remain unconvinced that this body, as proposed in the legislation, is the appropriate model for a sentencing guidelines body. National members are also concerned about proposed amendments to the Prisoners' and Victims' Claims Act. We oppose moves to extend the Act beyond 30 June 2007. Appendix Committee process The Criminal Justice Reform Bill was referred to the committee on 5 December 2006. The closing date for submissions was 16 March 2007. We received and considered 63 submissions on the bill and Supplementary Order Paper 99 from interested groups and individuals. We heard 18 submissions, including from the the Rt Hon Justice Peter Blanchard (Acting Chief Justice), the Hon Justice William Young (President of the Court of Appeal), the Hon Justice Randerson (Chief High Court Judge), and the Hon Judge Russell Johnson (Chief District Court Judge). We received advice from the Ministry of Justice, the Law Commission, and the Department of Corrections. Committee membership Lynne Pillay (Chairperson) Christopher Finlayson (Deputy Chairperson) Chris Auchinvole (from 6 December 2006) Charles Chauvel (from 21 February 2007) Russell Fairbrother (until 21 February 2007) Hone Harawira (from 13 December 2006) (non-voting member) Ann Hartley Nandor Tanczos Nicky Wagner Dr Richard Worth (until 6 December 2006) Hon Mark Burton Criminal Justice Reform Bill Government Bill Contents 1 Title 2 Commencement Part 1 Sentencing Council 3 Commencement 4 Interpretation 5 Part binds the Crown Establishment of Council 6 Sentencing Council established 7 Status of Council 8 Role of Council 9 Purposes of Council 10 Functions of Council Membership of Council 11 Membership of Council 12 Administrative provisions relating to Sentencing Council 13 Other enactments amended Public notification of draft guidelines 14 Public notification of draft guidelines 15 Statement to accompany draft guideline or group of guidelines 16 Consultation 17 Council finalises guidelines and presents to Minister Parliamentary scrutiny of guidelines 18 Presenting guidelines 19 Inaugural guidelines may be disapplied 20 Guideline may be disapplied 21 Periods of sitting days 22 Guidelines come into force if not disapplied 24 Council must reconsider guidelines if guidelines disapplied Publication of guidelines 25 Council must publish guidelines Requests for consideration of issues, and giving of advice 26 Consideration of issues relating to sentencing or parole guidelines 27 Council may advise Minister Part 2 Amendments to Acts relating to Criminal Justice Subpart 1---Amendments to Bail Act 2000 28 Principal Act amended 29 New section 8 substituted 8 Consideration of just cause for continued detention 30 Bail on adjournment 31 Bail on deferment of sentence 32 Bail on deferment of sentence Subpart 2---Amendments to Sentencing Act 2002 33 Principal Act amended 34 Interpretation 35 New section 6A inserted 6A Application of sentencing guidelines 36 Principles of sentencing or otherwise dealing with offenders 37 New heading and section 10A inserted Hierarchy of sentences and orders 10A Hierarchy of sentences and orders 37A Heading amended 37B Discharge or order to come up for sentence if called on 38 New sections 15A and 15B inserted 15A Sentence of home detention 15B Limitation on sentence of home detention for person under 17 years 39 New sections 19 and 20 substituted 19 Permitted combinations of sentences 20 Guidance on use of combinations of sentences 40 New heading and section 21A inserted Sentencing guidelines 21A Court must adhere to sentencing guidelines 41 Pre-sentence reports 42 New section 26A inserted 26A Additional requirements when considering sentence of community detention or home detention 43 General requirement to give reasons 44 Power to impose fine instead of imprisonment or community-based sentence 45 Community-based sentences 44 Community-based sentences 46 Sentence of supervision 47 Standard conditions of supervision 48 Programmes 49 Other special conditions 49A Variation or cancellation of sentence of supervision 49B Application of section 54 during epidemic 50 New heading and sections 54B to 54L inserted Intensive supervision 54B Sentence of intensive supervision 54C Guidance on use of sentence of intensive supervision 54D Sentences of intensive supervision in respect of 2 or more offences must be served concurrently 54E Conditions of sentence of intensive supervision 54F Standard conditions of intensive supervision 54G Special conditions related to programmes 54H Programmes 54I Other special conditions 54J Offender to be under supervision of probation officer 54K Variation or cancellation of sentence of intensive supervision 54L Application of section 54K during epidemic 51 Sentence of community work 52 Guidance on use of sentence of community work 53 Concurrent and cumulative sentences of community work 54 New section 57A inserted 57A Court may defer commencement date of sentence of community work 55 Length of sentence of community work 58 Length of sentence of community work 56 Authorised work for person sentenced to community work 57 New sections 66A to 66D inserted 66A Court may authorise hours of work to be converted into training 66B Some hours of work may be converted to training 66C Consequences of failing without excuse to complete training 66D When hours of community work not counted 57A Extension during epidemic of period within which community work must be done 58 New heading and sections 69B to 69M inserted Community detention 69B Sentence of community detention 69C Guidance on use of sentence of community detention 69D Concurrent and cumulative sentences of community detention 69E Conditions of community detention during sentence term 69F Electronic monitoring 69G Offence to breach conditions of community detention 69H Offence to refuse entry to community detention curfew address 69I Variation or cancellation of sentence of community detention 69J Application of section 69I during epidemic 69K Alternative curfew address pending determination of application under section 69I 69L When sentence ends on non-release day 69M Community detention does not affect entitlements under Social Security Act 1964 59 New section 70A inserted 70A Offence to breach conditions of intensive supervision 60 Jurisdiction and procedure 61 Order must be drawn up and copy given to offender, etc 62 Commencement of community-based sentences 62 A New sections 75A and 75B inserted 75A Commencement of cumulative sentences of community work 75B Commencement of cumulative sentences of community detention 63 Effect of subsequent sentence of imprisonment 64 Period of suspension not counted towards sentence 65 New subparts 2A and 2B inserted Subpart 2A---Home detention 80A Sentence of home detention 80B Concurrent and cumulative sentences of home detention 80C Detention conditions applying to offender sentenced to home detention 80D Special conditions of sentence of home detention 80E Electronic monitoring 80F Application for variation or cancellation of sentence of home detention 80G Matters relating to orders under section 80F 80H Alternative residence pending determination of application under section 80F 80I Leave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases 80J Appeal against order granting leave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention 80K Application for cancellation of sentence of imprisonment and substitution of sentence of home detention 80KA Updated pre-sentence report 80L Appeals in respect of substituted sentences 80M Imposition of post-detention conditions on offender 80N Standard post-detention conditions 80O Special post-detention conditions 80P Review of post-detention conditions if conditions incompatible 80Q Variation or discharge of post-detention conditions 80R Offence to breach detention conditions 80S Offence to refuse entry to home detention residence 80T Offence to breach post-detention conditions 80U Arrest without warrant for breach of detention or post-detention conditions 80V Court may defer start date of sentence of home detention 80W Commencement of sentence of home detention 80X Commencement of sentence of home detention after temporary surrender under Extradition Act 1999 80Y When home detention ends 80Z When detention conditions suspended 80ZA Time ceases to run in certain circumstances 80ZC Order must be drawn up 80ZD Offender must keep copy of order in his or her possession, etc 80ZE Home detention does not affect entitlements under Social Security Act 1964 80ZEA Application of Injury Prevention, Rehabilitation, and Compensation Act 2001 to persons serving home detention sentence 80ZEB Effect of subsequent sentence of imprisonment 80ZEC Application of section 80F during epidemic 80ZED Application of section 80Q during epidemic Subpart 2B---Judicial monitoring 80ZF Progress reports 80ZG Consideration of progress reports 80ZH Procedure 80ZI Procedure if possible grounds for variation or cancellation of sentence exist 66 New section 81A inserted 81A Manner of expression of sentence of imprisonment 67 Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment 68 Offender must be notified that sentence of preventive detention will be considered, and reports must be obtained 68A Warrant of commitment for sentence of imprisonment 69 Imposition of conditions on release of offender sentenced to imprisonment for short term 70 Heading and sections 97 to 99 repealed 71 Court may defer start date of sentence of imprisonment 72 Non-association order 73 Cumulative orders and sentences 74 Effect of subsequent sentences on non-association order Transitional provisions 75 Transitional arrangements for intensive supervision 76 Transitional arrangements for community detention 77 Transitional arrangements for home detention 78 Amendments to other enactments Subpart 3---Amendments to Parole Act 2002 79 Principal Act amended 80 Interpretation 81 Overview of release 82 Guiding principles 83 Part applies to all offenders 83A General rules about information to be given to offenders 83B New sections 13AA to 13AE inserted 13AA Application for confidentiality order 13AB Making of confidentiality order 13AC Effect of confidentiality order 13AD If confidentiality order not made 13AE Variation or rescission of confidentiality order 84 Standard release conditions 85 Special conditions 86 Electronic monitoring 87 Release at statutory release date 88 Conditions applying to release at statutory release date 89 New section 23 substituted 23 No consideration for parole of offenders on compassionate release 90 Early referral and consideration for parole 90A Direction for release on parole 91 New section 29 substituted 29 Release conditions applying to parole 92 New sections 29A and 29B inserted 29A Release conditions for person to whom extended supervision order applies 29B Board may monitor compliance with conditions 93 New heading and sections 33 to 35 substituted 33 Residential restrictions 34 Prior report on suitability of residential restrictions 35 Residential restrictions only to be imposed if residence suitable and occupants consent 94 New section 38 substituted 38 Residential restrictions do not affect entitlements under Social Security Act 1964 95 Application of procedures set out in sections 43 to 50 96 Start of process 97 Information for victims 98 Decision on type of hearing 99 Review of decision on type of hearing 100 New section 47 substituted 47 Interviews of offender before hearings 101 New sections 48A and 48B inserted 48A Victims may be invited to make oral submissions 48B Review of decision not to invite victim to make oral submissions 102 Attended hearing 103 Decisions must be notified 104 Submissions from, and interviews with, certain victims 105 Decisions to be notified to certain victims 106 Date of release 107 Release of offenders released at statutory release date 108 Licence issued on release 109 New section 54 substituted 54 Police must be advised 110 Application for variation or discharge of conditions 110AA Application of section 56 during epidemic 110A Procedure for determining applications 111 Board determines application for variation or discharge 112 Making recall application 113 Grounds for recall 114 Making interim recall order 114A Procedure for determining recall applications 115 Board may make final recall order 115A Review of decisions 116 Powers of court on appeal 117 Offence to breach conditions 118 New section 72 substituted 72 Offence to refuse entry to residence specified under residential restrictions 119 Arrest without warrant 120 Non-parole periods 121 New section 86 substituted 86 Release date of sentence 122 Meaning of pre-sentence detention 123 Time ceases to run in certain circumstances 124 Application of this Part to offenders subject to pre-cd sentences 125 Variation and cancellation of final release dates 126 Overview of Part 127 Meaning of relevant offence 128 Meaning of eligible offender 129 Chief executive may apply for extended supervision order 130 Procedure following application for extended supervision order 131 Hearings relating to extended supervision orders 131A New section 107IA inserted 107IA Court may impose special conditions on interim basis 132 New sections 107J and 107JA substituted 107J Conditions of extended supervision order 107JA Standard extended supervision conditions 133 Board may impose special conditions 134 Commencement and expiry of extended supervision order 135 Suspension of conditions of extended supervision order 136 Functions of Board 137 New sections 109A and 109B inserted 109A Board must follow parole guidelines 109B Application of parole guidelines 138 Panel conveners 139 Decisions of Board 139A Information before Board 139B New heading and sections 118A to 118D inserted Summoning witnesses 118A Power to summon witnesses 118B Service of summons 118C Protection of witnesses 118D Offences 140 Transitional provisions relating to home detention 141 Transitional provisions relating to hearings 142 Transitional provision relating to extended supervision order Schedule 1 Provisions relating to Sentencing Council Schedule 2 Amendments to other enactments Schedule 3 Amendments to other enactments The Parliament of New Zealand enacts as follows: 1 Title This Act is the Criminal Justice Reform Act 2006. 2 Commencement (1) Part 1 comes into force in accordance with section 3. (2) Part 2 comes into force on a date to be appointed by the Governor-General by Order in Council, and 1 or more orders may be made bringing different provisions into force on different dates. (3) The rest of this Act comes into force on the day after the date on which it receives the Royal assent. Part 1 Sentencing Council 3 Commencement This Part comes into force on a date to be appointed by the Governor-General by Order in Council, and 1 or more orders may be made bringing different provisions into force on different dates. 4 Interpretation In this Part, unless the context otherwise requires,--- Council means the Sentencing Council established by section 6 fees framework has the same meaning as in section 10(1) of the Crown Entities Act 2004 group of guidelines means a group of sentencing guidelines or a group of parole guidelines, or both, that are publicly notified together under section 14 or that are presented, or are intended to be presented, to the House of Representatives under section 18 on the same date; and, unless otherwise specified, includes the inaugural guidelines group of parole guidelines means any 1 or more parole guidelines that are publicly notified together under section 14 or that are presented, or are intended to be presented, to the House of Representatives under section 18 on the same date group of sentencing guidelines means any 1 or more sentencing guidelines that are publicly notified together under section 14 or that are presented, or are intended to be presented, to the House of Representatives under section 18 on the same date inaugural guidelines means the group of sentencing guidelines or group of parole guidelines, or both, that are the first group, or groups, of guidelines to be laid before the House of Representatives after this Part comes into force Minister means the Minister of Justice Parole Board means the New Zealand Parole Board established under section 108 of the Parole Act 2002 working day has the meaning set out in section 2(1) of the Public Finance Act 1989. 5 Part binds the Crown This Part binds the Crown. Establishment of Council 6 Sentencing Council established The Sentencing Council is established as an independent statutory body. 7 Status of Council (1) The Council--- (a) is a body corporate; and (b) is accordingly a legal entity separate from its members, employees, and the Crown; and (c) continues in existence until it is dissolved by an Act. (2) The Council may do anything that a natural person of full age and capacity may do for the purposes of performing its functions or powers under this Part. (3) The Council may do anything authorised by this Part, subject to this Part or any other Act or any rule of law. 8 Role of Council (1) The members of the Council are its governing body, with the authority, in the name of the Council, to exercise its powers and perform its functions. (2) All decisions relating to the operation of the Council must be made by, or under the authority of, its governing body in accordance with this Part. 9 Purposes of Council The purposes of the Council are,--- (a) by producing guidelines about sentencing and parole, to--- (i) promote consistency in sentencing practice between different courts and Judges: (ii) ensure transparency in sentencing policy: (iii) promote consistency and transparency in Parole Board practice: Struck out (unanimous) ======================================================================= (iv) facilitate effective management of penal resources by the Government: ======================================================================= New (unanimous) ----------------------------------------------------------------------- (iv) facilitate the provision of reliable information to enable penal resources to be effectively managed: ----------------------------------------------------------------------- (b) to enable the development of sentencing and parole policy to be based on a broad range of experience and expertise: (c) to inform members of Parliament and policymakers about sentencing and parole practice and reform options: (d) to inform and educate the public about sentencing and parole policies and decision making, with a view to promoting public confidence in the criminal justice system. 10 Functions of Council (1) The functions of the Council are--- (a) to produce guidelines that are consistent with the Sentencing Act 2002 relating to--- (i) sentencing principles: (ii) sentencing levels: (iii) particular types of sentences: (iv) other matters relating to sentencing practice: (v) grounds for departure from the sentencing guidelines: (b) to produce guidelines that are consistent with the Parole Act 2002 about the granting of parole: Struck out (unanimous) ======================================================================= (c) to assess and take account of the cost-effectiveness of the guidelines: ======================================================================= New (unanimous) ----------------------------------------------------------------------- (c) to assess and take account of the overall costs and benefits of the guidelines: ----------------------------------------------------------------------- (d) to provide, in relation to both draft and final guidelines, a statement of the guidelines' [likely] effect on the prison {muster} [population]: (e) to give advice on, and consider issues about, sentencing and parole as set out in this Part: (f) to collate information on sentencing practice, and on adherence to and departures from the sentencing guidelines, and provide this information to the judiciary: (g) to collate information on parole decisions, and on adherence to and departures from the parole guidelines, and provide this information to the Parole Board: (h) to provide information to the public about sentencing and parole: (i) any functions that are incidental and related to, or consequential on, its functions set out in paragraphs (a) to (h). (2) Except as expressly provided in this Part or any other Act, the Council must carry out its functions and powers independently. Membership of Council 11 Membership of Council (1) The Council consists of--- (a) 1 Judge of the Court of Appeal appointed by the President of the Court of Appeal in consultation with the Chief Justice: (b) 1 Judge of the High Court appointed by the Chief High Court Judge in consultation with the Chief Justice: (c) 2 District Court Judges appointed by the Chief District Court Judge in consultation with the Chief Justice: (d) the chairperson of the Parole Board: (e) 5 members who are not Judges, appointed by the Governor-General on the recommendation of the House of Representatives. Struck out (unanimous) ======================================================================= (2) The Governor-General must, on the recommendation of the House of Representatives, appoint 1 of the members appointed under subsection (1)(e) as the chairperson of the Council. ======================================================================= New (unanimous) ----------------------------------------------------------------------- (2) The Chief Justice must appoint one of the Judges appointed under subsection (1)(a), (b), or (c) as the chairperson of the Council. ----------------------------------------------------------------------- Struck out (unanimous) ======================================================================= (3) The Chief Justice must, for the purpose of ensuring that the functions of the chairperson are performed or exercised during any period when the chairperson is absent or incapacitated, appoint one of the Judges appointed under subsection (1)(a), (b), or (c) as deputy chairperson. ======================================================================= New (unanimous) ----------------------------------------------------------------------- (3) The Governor-General must, on the recommendation of the House of Representatives, appoint one of the members appointed under subsection (1)(e) as the deputy chairperson of the Council. (3A) The Chairperson may delegate any of his or her functions, either generally or specifically, to the deputy chairperson. ----------------------------------------------------------------------- (4) Appointments under subsections (1), (2), and (3) must be made by written notice by the appointing authority to the person appointed (with a copy sent to the Council and the Minister). (5) The notice must--- (a) state the date on which the appointment takes effect, which must not be earlier than the date on which the notice is received; and (b) state the term of the appointment; and (c) be published by the Minister in the Gazette as soon as practicable after being given. 12 Administrative provisions relating to Sentencing Council The provisions set out in Schedule 1 apply to the Sentencing Council. 13 Other enactments amended The Acts set out in Schedule 2 are amended in the manner set out in that schedule. Public notification of draft guidelines 14 Public notification of draft guidelines (1) The Council must publicly notify each draft [guideline or] group of guidelines by--- (a) publishing{,} [a notice complying with subsection (2)] in 1 or more daily newspapers circulating in the cities of Whangarei, Auckland, Hamilton, Rotorua, Napier, New Plymouth, Palmerston North, Wellington, Nelson, Christchurch, Dunedin, Invercargill, and any other place the chairperson may direct; and (b) publishing a notice complying with subsection (2) on the Internet in a form that is publicly accessible at all reasonable times; and (c) giving any further notice that the Council considers appropriate, having regard to the persons likely to have an interest in the draft guidelines. (2) A notice published or given under subsection (1), in respect of a draft [guideline or] group of guidelines, must--- (a) except as provided in subsection (3), contain the title, or other short description of the subject matter, of [the guideline or] each guideline in the group[, as the case may be]; and (b) state that submissions on the draft [guideline or] guidelines may be made in writing by any person or in any other way the Council may direct; and (c) specify how a copy of the draft [guideline or] group of guidelines may be obtained, which may include, but must not be limited to, obtaining the draft guidelines from an Internet website; and (d) specify the closing date for the receipt by the Council of submissions on the draft [guideline or] group of guidelines, which may be a date no earlier than 6 weeks after the date on which the notice is first published in a daily newspaper under subsection (1)(a); and (e) specify the address of the place to which submissions on the draft [guideline or] group of guidelines may be delivered or sent. (3) If the notice published or given under subsection (1) is for the inaugural guidelines, the notice is not required to contain the matters described in subsection (2)(a). 15 Statement to accompany draft [guideline or] group of guidelines A draft [guideline or] group of guidelines that is available for inspection must be accompanied by a statement of the guidelines' [likely] effect on the prison {muster} [population]. 16 Consultation The Council may consult on the draft [guideline or] group of guidelines as it sees fit, with any person or body, by any appropriate means. 17 Council finalises guidelines and presents to Minister The Council may, at any time after the time for submissions has expired, finalise the guidelines and present them to the Minister, together with {the} [a] statement of the guidelines' [likely] effect on the prison {muster referred to in section 15} [population]. Parliamentary scrutiny of guidelines 18 Presenting guidelines The Minister must present each [guideline or] group of guidelines, together with the statement of the guidelines' [likely] effect on the prison {muster} [population] referred to in section {15} [17], to the House of Representatives not later than the 16th sitting day of the House of Representatives after the day on which the guidelines are provided to the Minister by the Council. Struck out (unanimous) ======================================================================= 19 Disallowance of guidelines (1) A member of Parliament may give a notice of motion to disallow a group of guidelines. (2) A group of guidelines may be disallowed as a whole only and not individually. ======================================================================= Struck out (unanimous) ======================================================================= 20 When guidelines disallowed (1) The inaugural guidelines are disallowed if a notice of motion to disallow those guidelines is called on, moved, and agreed to within 30 sitting days after the date on which the group of guidelines was presented to the House of Representatives. (2) A group of guidelines (not being the inaugural guidelines) is disallowed if a notice of motion to disallow those guidelines is called on, moved, and agreed to within 15 sitting days after the date on which the group of guidelines was presented to the House of Representatives. ======================================================================= Struck out (unanimous) ======================================================================= 21 Guidelines come into force if not disallowed A group of guidelines comes into force on the date that is 20 working days after the last date on which the guidelines could have been disallowed under section 20, unless the guidelines are disallowed under that section. ======================================================================= Struck out (unanimous) ======================================================================= 22 Lapse of notice of motion to disallow guidelines (1) A notice of motion to disallow a group of guidelines lapses if--- (a) the notice is not called upon; or (b) the notice is called upon and moved but is not agreed to; or (c) the member of Parliament who gave the notice withdraws it. (2) The notice of motion lapses if Parliament is dissolved or expires after the date on which the notice was given and before the date that is,--- (a) in the case of a notice of motion to disallow the inaugural guidelines, 30 sitting days after the date on which the guidelines were presented to the House of Representatives; and (b) in the case of a notice of motion to disallow a group of guidelines (not being the inaugural guidelines), 15 sitting days after the date on which the guidelines were presented to the House of Representatives. ======================================================================= Struck out (unanimous) ======================================================================= 23 Notice of resolution to disallow guidelines (1) If a resolution disallowing a group of guidelines is passed by the House of Representatives, the Clerk of the House of Representatives must forward notice of the disallowance to the chairperson of the Council. (2) The notice must show the date on which the resolution was agreed to and be accompanied by the text of the resolution. (3) The notice is conclusive evidence of the date on which the resolution was agreed to. ======================================================================= New (unanimous) ----------------------------------------------------------------------- 19 Inaugural guidelines may be disapplied The inaugural guidelines may be disapplied as a whole by resolution of the House of Representatives passed within 30 sitting days after those guidelines were presented to the House. ----------------------------------------------------------------------- New (unanimous) ----------------------------------------------------------------------- 20 Guideline may be disapplied Any guideline (not being an inaugural guideline) may be disapplied by resolution of the House of Representatives passed within 15 sitting days after that guideline was presented to the House. ----------------------------------------------------------------------- New (unanimous) ----------------------------------------------------------------------- 21 Periods of sitting days The periods of sitting days within which the inaugural guidelines or a guideline may be disapplied under section 19 or section 20 must elapse within the term of a single Parliament. ----------------------------------------------------------------------- New (unanimous) ----------------------------------------------------------------------- 22 Guidelines come into force if not disapplied Every guideline comes into force on the date that is 20 working days after the last date on which the guideline could have been disapplied under section 19 or section 20 unless that guideline is disapplied under one of those sections. ----------------------------------------------------------------------- 24 Council must reconsider guidelines if guidelines {disallowed} [disapplied] (1) If a [guideline or] group of guidelines is {disallowed} [disapplied] under {section 20} [section 19 or 20], the Council must--- (a) reconsider {and vary} the [guideline or] group of guidelines; and (b) [if the Council considers it appropriate,] provide {the} [a] varied [guideline or] group of guidelines [to the Minister], together with {the} [a] statement of the guidelines' [likely] effect on the prison {muster referred to in section 15, to the Minister} [population]. (2) Sections 18 to {23} [22] and subsection (1) of this section apply to the varied guidelines provided to the Minister under subsection (1). (3) If the inaugural guidelines are {disallowed} [disapplied], the varied group of guidelines provided to the Minister under subsection (1) is treated as being the inaugural guidelines for the purposes of sections 18 to {23} [22] and subsections (1) and (2) of this section. Publication of guidelines 25 Council must publish guidelines (1) The Council must comply with subsection (2) if--- (a) the last date on which a [guideline or] group of guidelines could have been {disallowed} [disapplied] under {section 20} [section 19 or 20] has passed; and (b) the [guideline or] guidelines were not {disallowed} [disapplied]. (2) The Council must, as soon as practicable after the date referred to in subsection (1)(a) and before the guidelines come into force under section {21} [22],--- (a) arrange for the publication in the Gazette of a notice showing the titles of the guidelines, the date on which the guidelines were produced by the Council, the date on which they will come into force, and where copies of the guidelines are available for inspection and purchase; and (b) make copies of the guidelines available on the Internet in an electronic form that is publicly accessible at all reasonable times for inspection and downloading free of charge; and (c) make copies of the guidelines available for purchase at a reasonable price. Requests for consideration of issues, and giving of advice 26 Consideration of issues relating to sentencing or parole guidelines (1) A request may be made by the following persons to the Council to consider any issue relating to guidelines: (a) in the case of sentencing guidelines, by the Minister, the Chief Justice, the President of the Court of Appeal, the Chief High Court Judge, {or} the Chief District Court Judge[, the Solicitor-General, or the President of the New Zealand Law Society]: (b) in the case of parole guidelines, by the Minister[,] {or} the chairperson of the Parole Board[, the Solicitor-General, or the President of the New Zealand Law Society]. (2) A request must set out the reasons for the request. (3) If a request is made, the Council must, when revising or drafting sentencing guidelines or parole guidelines, {have regard to} [consider] the issue and the reasons given. 27 Council may advise Minister {on own initiative} (1) The Minister may request the Council to provide advice to the Minister on any sentencing or parole issue that relates to the development and use of sentencing guidelines or parole guidelines. (2) The Council may, on its own initiative, provide advice to the Minister on any sentencing or parole issue that relates to the development and use of sentencing guidelines or parole guidelines. Part 2 Amendments to Acts relating to Criminal Justice Subpart 1---Amendments to Bail Act 2000 28 Principal Act amended This subpart amends the Bail Act 2000. 29 New section 8 substituted Section 8 is repealed and the following section substituted: "8 Consideration of just cause for continued detention "(1) In considering whether there is just cause for continued detention, the court must take into account--- "(a) whether there is a real and significant risk that--- "(i) the defendant may fail to appear in court on the date to which the defendant has been remanded; or "(ii) the defendant may interfere with witnesses or evidence; or "(iii) the defendant may offend while on bail; and "(b) any matter that would make it unjust to detain the defendant. "(2) In considering whether there is just cause for continued detention under subsection (1), the court may take into account the following: "(a) the nature of the offence with which the defendant is charged, and whether it is a grave or less serious one of its kind: "(b) the strength of the evidence and the probability of conviction or otherwise: "(c) the seriousness of the punishment to which the defendant is liable, and the severity of the punishment that is likely to be imposed: "(d) the character and past conduct or behaviour, in particular proven criminal behaviour, of the defendant: "(e) whether the defendant has a history of offending while on bail, or breaching court orders, including orders imposing bail conditions: "(f) the likely length of time before the matter comes to hearing or trial: "(g) the possibility of prejudice to the defence in the preparation of the defence if the defendant is remanded in custody: "(h) any other special matter that is relevant in the particular circumstances. "(3) For the avoidance of doubt, in considering whether there is just cause for continued detention under this section, a breach of bail conditions may only be taken into account under subsection (2)(e) in so far as it is relevant to whether there is a real and significant risk that the defendant may do any of the things set out in subsection (1)(a). "(4) When considering an application for bail, the court must take into account any views of a victim of an offence of a kind referred to in section 29 of the Victims' Rights Act 2002, or of a parent or legal guardian of a victim of that kind, conveyed in accordance with section 30 of that Act. "(5) In deciding, in relation to a defendant charged with an offence against section 49(1)(a) or (b) of the Domestic Violence Act 1995, whether or not to grant bail to the defendant or allow the defendant to go at large, the court's paramount consideration is the need to protect the victim of the alleged offence." 30 Bail on adjournment Section 28 is amended by repealing subsection (2) and substituting the following subsection: "(2) A Registrar may exercise the power conferred by subsection (1) to grant bail if--- "(a) the informant does not oppose bail and the offence with which the defendant has been charged--- "(i) is not punishable by imprisonment; or "(ii) is punishable by a term of imprisonment of not more than 10 years; or "(b) the prosecution agrees." 31 Bail on deferment of sentence (1) Section 39A(1) is amended by inserting "section 80V or" after "deferred under". (2) Section 39A(3) is amended by repealing paragraphs (a) and (b) and substituting the following paragraphs: Struck out (unanimous) ======================================================================= "(a) if the sentence is deferred under section 80V of the Sentencing Act 2002, go to and remain at the residence where the sentence is to be served at the expiry of the period of deferral specified by the court, unless absent in accordance with section 80C(3)(a) or (b) of that Act. ======================================================================= New (unanimous) ----------------------------------------------------------------------- "(a) if the sentence is deferred under section 80V of the Sentencing Act 2002,--- "(i) go to and remain at the home detention residence (as defined in section 4 of that Act) at the expiry of the period of deferral specified by the court, unless absent in accordance with section 80C(3)(a) or (b) of that Act; and "(ii) advise a probation officer as soon as possible of any change in circumstances affecting the availability or suitability of the home detention residence; or ----------------------------------------------------------------------- "(b) if the sentence is deferred under section 100 of the Sentencing Act 2002, surrender himself or herself to the prison manager of the prison concerned at the expiry of the period of deferral specified by the court." 32 Bail on deferment of sentence (1) Section 65A(1) is amended by inserting "section 80V or" after "deferred under". (2) Section 65A(3) is amended by repealing paragraphs (a) and (b) and substituting the following paragraphs:" Struck out (unanimous) ======================================================================= "(a) if the sentence is deferred under section 80V of the Sentencing Act 2002, go to and remain at the residence where the sentence is to be served at the expiry of the period of deferral specified by the court, unless absent in accordance with section 80C(3)(a) or (b) of that Act ======================================================================= New (unanimous) ----------------------------------------------------------------------- "(a) if the sentence is deferred under section 80V of the Sentencing Act 2002,--- "(i) go to and remain at the home detention residence (as defined in section 4 of that Act) at the expiry of the period of deferral specified by the court, unless absent in accordance with section 80C(3)(a) or (b) of that Act; and "(ii) advise a probation officer as soon as possible of any change in circumstances affecting the availability or suitability of the home detention residence; or ----------------------------------------------------------------------- "(b) if the sentence is deferred under section 100 of the Sentencing Act 2002, surrender himself or herself to the prison manager of the prison concerned at the expiry of the period of deferral specified by the court." Subpart 2---Amendments to Sentencing Act 2002 33 Principal Act amended This subpart amends the Sentencing Act 2002. 34 Interpretation (1) Section 4(1) is amended by repealing the definition of home detention. New (unanimous) ----------------------------------------------------------------------- (1A) Section 4(1) is amended by repealing the definition of probation area and substituting the following definition: "probation area means an area designated by the chief executive of the Department of Corrections for the administration of release conditions, community-based sentences, sentences of home detention, or orders". ----------------------------------------------------------------------- (2) Section 4(1) is amended by inserting the following definitions in their appropriate alphabetical order: "curfew address means the address, specified by a court, where an offender must remain during the curfew period "curfew period means the periods, specified by a court, during which an offender sentenced to community detention must remain at the curfew address "detention conditions means the standard conditions of a sentence of home detention set out in section 80C and any special conditions imposed by the court on an offender under section 80D "detention end date means the date on which an offender who is subject to a sentence of home detention ceases to be subject to detention conditions "home detention residence means the residence, specified by a court, where an offender sentenced to home detention serves that sentence "non-release day means a Saturday, a Sunday, Christmas Day, Boxing Day, New Year's Day, the second day of January, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign's Birthday, Labour Day, and, in respect of a particular place where an offender is serving a sentence of [community detention or] home detention, the anniversary day of the region in which that place is situated "post-detention conditions means any standard post-detention conditions and special post-detention conditions imposed under section 80M on an offender sentenced to home detention "sentence term, in relation to a sentence of community detention, is the period that the sentence of community detention is in force "sentencing guidelines means sentencing guidelines produced by the Sentencing Council under Part 1 of the Criminal Justice Reform Act 2006 "short-term sentence has the same meaning as in section 4(1) of the Parole Act 2002". New (unanimous) ----------------------------------------------------------------------- (3) Section 4(2) is amended by inserting the following paragraph after paragraph (a): "(ab) an offender is subject to a sentence of home detention from the date the sentence commences in accordance with section 80W or 80X until the sentence ends in accordance with section 80Y:". ----------------------------------------------------------------------- 35 New section 6A inserted The following section is inserted after section 6: "6A Application of sentencing guidelines "(1) A sentencing guideline applies to the sentencing of an offender in a District Court, the High Court, Court of Appeal, or Supreme Court for an offence on or after the date on which the guideline comes into force, whether or not the guideline was in force when the offence was committed. "(2) For the purposes of this section, District Court does not include a Youth Court." 36 Principles of sentencing or otherwise dealing with offenders (1) Section 8(c) and (d) are repealed. (2) Section 8(g) is amended by inserting ", in accordance with the sentencing hierarchy set out in section 10A" after "in the circumstances". 37 New heading and section 10A inserted The following heading and section are inserted after section 10: "Hierarchy of sentences and orders "10A Hierarchy of sentences and orders "(1) The hierarchy of sentences and orders set out in subsection (2) reflects the relative level of supervision and monitoring of, and restrictions imposed on, an offender required under each sentence or order. "(2) The hierarchy of sentences and orders, from the least restrictive to the most restrictive, is as follows: "(a) discharge or order to come up for sentence if called on: "(b) sentences of a fine and reparation: "(c) community-based sentences of community work and supervision: "(d) community-based sentences of intensive supervision and community detention: "(e) sentence of home detention: "(f) sentence of imprisonment." New (unanimous) ----------------------------------------------------------------------- 37A Heading amended The heading above section 11 is amended by inserting "sentences of home detention," after "community-based sentences,". ----------------------------------------------------------------------- New (unanimous) ----------------------------------------------------------------------- 37B Discharge or order to come up for sentence if called on Section 11(2) is amended by inserting "a sentence of home detention," after "a sentence of imprisonment,". ----------------------------------------------------------------------- 38 New sections 15A and 15B inserted The following sections are inserted after section 15: "15A Sentence of home detention "(1) If a court is lawfully entitled under this or any other enactment to impose a sentence of home detention, it may impose a sentence of home detention only if--- "(a) the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and "(b) the court would otherwise sentence the offender to a short-term sentence of imprisonment. "(2) This section is subject to any provision in this or any other enactment that--- "(a) provides a presumption in favour of or against imposing a sentence of home detention in relation to a particular offence; or "(b) requires a court to impose a sentence of imprisonment in relation to a particular offence. "15B Limitation on sentence of home detention for person under 17 years "(1) No court may impose a sentence of home detention on an offender in respect of a particular offence, other than a purely indictable offence, if, at the time of the commission of the offence[,] the offender was under the age of 17 years. "(2) In subsection (1), purely indictable offence means any indictable offence within the meaning of section 2(1) of the Summary Proceedings Act 1957, other than an offence for which, under section 6 of that Act, proceedings may be taken in a summary way in accordance with that Act." 39 New sections 19 and 20 substituted (1) Sections 19 and 20 are repealed and the following sections substituted: "19 Permitted combinations of sentences "(1) No court may impose a combination of sentences [of different types] in respect of 1 or more offences{, or in respect of an offender already serving a particular sentence or sentences,} except as provided in this section. "(2) A sentence of reparation may be imposed with any sentence. "(3) A sentence of a fine may be imposed with any sentence, but may only be imposed with a sentence of imprisonment in respect of a particular offence if authorised by the enactment specifying the offence. "(4) A sentence of supervision may be combined with any sentence except intensive supervision, home detention, or imprisonment. "(5) A sentence of community work, subject to section 20(2), may be combined with any sentence except imprisonment. "(6) A sentence of community detention may be combined with any {other} sentence except home detention or imprisonment. "(7) A sentence of intensive supervision may be combined with any {other} sentence except supervision, home detention, or imprisonment. "(8) A sentence of home detention may be combined with a sentence of reparation, a fine, or community work. "(9) A sentence of imprisonment may be combined with a sentence of reparation or, subject to subsection (3), a fine. "20 Guidance on use of combinations of sentences "(1) A court may impose a particular combination of sentences only if satisfied that any of the sentences making up the combination, if imposed alone or in any less restrictive combination, would not be in accordance with--- "(a) the purpose or purposes for which sentence is imposed; or "(b) the application of the principles in section 8 to the particular case. "(2) A court may only combine a sentence of community work with a sentence of supervision or intensive supervision if satisfied that--- "(a) a sentence of community work is appropriate; but "(b) the offender requires the imposition of standard conditions or any of the special conditions available under a sentence of supervision or intensive supervision to address the causes of his or her offending." 40 New heading and section 21A inserted The following heading and section are inserted after section 21: "Sentencing guidelines "21A Court must adhere to sentencing guidelines When sentencing an offender, a court must impose a sentence that is consistent with any sentencing guidelines that are relevant in the offender's case, unless the court is satisfied that it would be contrary to the interests of justice to do so." 41 Pre-sentence reports (1) Section 26(2) is amended by repealing paragraph (e) and substituting the following paragraph: "(e) in the case of a proposed sentence of supervision, intensive supervision, or home detention, recommendations on the appropriate conditions of that sentence:". (2) Section 26(2)(f) is amended by inserting ", intensive supervision, or home detention" after "sentence of supervision". (3) Section 26(2)(g) is amended by inserting ", intensive supervision, or home detention" after "sentence of supervision". (4) Section 26(2) is amended by repealing paragraph (h) and substituting the following paragraph: "(h) in the case of a proposed sentence of community work,--- "(i) information regarding the availability of community work of a kind referred to in section 63 in the area in which the offender will reside; and "(ii) recommendations on whether the court should authorise, under section 66A, hours of work to be spent undertaking training on basic work and living skills." 42 New section 26A inserted The following section is inserted after section 26: "26A Additional requirements when considering sentence of community detention or home detention "(1) If the court has directed a probation officer to provide a pre-sentence report under section 26, the probation officer must prepare the pre-sentence report in accordance with subsection (2) if--- "(a) the court has indicated that it is considering a sentence of community detention or home detention; or "(b) the probation officer intends to recommend a sentence of community detention or home detention. "(2) A pre-sentence report to which subsection (1) applies may include any of the matters outlined in section 26(2), and must include--- "(a) information regarding the suitability of the proposed curfew address or home detention residence, including the safety and welfare of the occupants of the proposed curfew address or home detention residence; and "(b) in the case of a sentence of community detention, confirmation that the offender consents to the conditions of the sentence and the proposed curfew period; and "(c) in the case of a sentence of home detention, confirmation that the offender consents to the standard detention conditions and any special conditions recommended by the probation officer or that the court has indicated it is considering imposing. "(3) Before completing a report that covers the matters in subsection (2), the probation officer must--- "(a) ensure that every relevant occupant of the proposed curfew address or home detention residence, as the case may be, is aware of the nature of the offender's past and current offending; and "(b) tell every relevant occupant that the reason for giving that information is to enable the occupant to make an informed decision about whether to consent to the offender remaining at the curfew address during the curfew period[,] or [at the home detention residence] while serving the sentence of home detention {at the home detention residence}, as the case may be; and "(c) tell every relevant occupant that the information provided about the offender must not be used for any purpose other than that described in paragraph (b); and "(d) obtain the consent of every relevant occupant to the offender remaining at the curfew address during the curfew period[,] or [at the home detention residence] while serving the sentence of home detention {at the home detention residence}, as the case may be. "(4) In subsection (3), relevant occupant means,--- "(a) in relation to a residence that the probation officer is considering as a home detention residence,--- "(i) if the residence is a family residence, every person of or over the age of 16 who ordinarily lives there; and "(ii) in the case of any other residence, every person whom the probation officer identifies as being a relevant occupant for the purposes of subsection (3); or "(b) in relation to an address that the probation officer is considering as a curfew address,--- "(i) if the address is a residence, every person referred to in paragraph (a)(i) and (ii); and "(ii) in the case of any other place, the person or persons whom the probation officer identifies as being authorised to give consent for the purposes of subsection (3)." 43 General requirement to give reasons Section 31 is amended by inserting the following subsection after subsection (1): "(1A) If sentencing guidelines indicate that a sentence of a particular kind, or within a particular range, would normally be appropriate for the offence {and the sentence is of a different kind, or outside that range}, a court must give reasons for deciding on a sentence of a different kind or outside that range." 44 Power to impose fine instead of imprisonment or community-based sentence (1) The heading to section 39 is amended by inserting ", sentence of home detention," after "imprisonment". (2) Section 39 is amended by inserting the following subsection after subsection (2): "(2A) If an enactment provides that a court may sentence an offender to a sentence of home detention but does not provide for a fine, the court may sentence the offender to pay a fine instead of imposing a sentence of home detention." (3) Section 39(3) is amended by omitting "and (2)" and substituting ", (2), and (2A)". 45 Community-based sentences Section 44 is repealed and the following section substituted: "44 Community-based sentences "(1) In this Act, community-based sentence means the following--- "(a) a sentence of community work: "(b) a sentence of supervision: "(c) a sentence of intensive supervision: "(d) a sentence of community detention. "(2) In sentencing an offender to a community-based sentence, a court may have regard to the potential effect that a particular sentence may have in contributing to the development of an offender's work and living skills." 46 Sentence of supervision (1) Section 45(1) is amended by inserting the following paragraph after paragraph (a): "(ab) the offender is convicted of an offence and the enactment prescribing the offence expressly provides that a sentence of home detention may be imposed on conviction; or". (2) Section 45(2) is amended by omitting "2 years" and substituting "1 year". 47 Standard conditions of supervision Section 49 is amended by repealing subsection (2) and substituting the following subsection: "(2) The conditions in subsection (1)(c) to (f) do not apply to the extent that they are inconsistent with--- "(a) any special conditions imposed by the court; or "(b) in the case of an offender who is also subject to a sentence of community detention, any condition of that sentence." 48 Programmes Section 51 is amended by inserting "that is not residential in nature" after "the following". 49 Other special conditions (1) Section 52(2) is amended by inserting the following paragraph after paragraph (b): "(ba) conditions requiring the offender to undertake training in basic work and living skills:". (2) Section 52 is amended by inserting the following subsection after subsection (3): "(3A) No court may impose a condition under this section that the offender submit to electronic monitoring." New (unanimous) ----------------------------------------------------------------------- (3) Section 52(5) is amended by adding "; but the failure to take the medication may give rise to a ground for variation or cancellation of the sentence of supervision under section 54". ----------------------------------------------------------------------- New (unanimous) ----------------------------------------------------------------------- 49A Variation or cancellation of sentence of supervision Section 54(3) is amended by repealing paragraph (a) and substituting the following paragraph: "(a) remit, suspend, or vary any special conditions imposed by the court, or impose additional special conditions:". ----------------------------------------------------------------------- New (unanimous) ----------------------------------------------------------------------- 49B Application of section 54 during epidemic (1) Subsection 54A(1)(a) is amended by inserting "special" after "an order under section 54(3) varying the". (2) Section 54A(1)(b) is amended by inserting "special" after "any probation officer may himself or herself vary the". (3) Section 54A(1) is amended by adding the following paragraph: "(c) a probation officer may vary or suspend any standard conditions of a sentence of supervision." (4) Section 54A(2) is amended by omitting "subsection (1)" and substituting "subsection (1)(a) or (b)". (5) Section 54A is amended by adding the following subsection: "(3) Any variation or suspension of a standard condition under subsection (1)(c) has effect until the earlier of--- "(a) the revocation of the epidemic management notice; or "(b) the date a probation officer rescinds the variation or suspension." ----------------------------------------------------------------------- 50 New heading and sections 54{A} [B] to 54{J} [L] inserted The following heading and sections are inserted after section 54[A]: "Intensive supervision "54[B] Sentence of intensive supervision "(1) A court may sentence an offender to intensive supervision if--- "(a) the offender is convicted of an offence punishable by imprisonment; or "(b) the offender is convicted of an offence and the enactment prescribing the offence expressly provides that a sentence of home detention may be imposed on conviction; or "(c) the offender is convicted of an offence and the enactment prescribing the offence expressly provides that a community-based sentence may be imposed on conviction. "(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. "54[C] Guidance on use of sentence of intensive supervision A court may impose a sentence of intensive supervision only if it is satisfied that--- "(a) a sentence of intensive supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender; and "(b) the nature of the offender's rehabilitative or other needs requires the imposition of conditions--- "(i) for a period longer than 12 months; or "(ii) that are not available through the sentence of supervision. "54[D] Sentences of intensive supervision in respect of 2 or more offences must be served concurrently If a court imposes a sentence of intensive supervision in respect of each of 2 or more offences (whether on the same occasion or on different occasions), the sentences must be served concurrently. "54[E] Conditions of sentence of intensive supervision An offender who is sentenced to intensive supervision is subject to--- "(a) the standard conditions in section 54{E} [F]; and "(b) any special conditions imposed by the court under section 54{F} [G] or 54{H} [I]. "54[F] Standard conditions of intensive supervision "(1) If an offender is sentenced to intensive 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--- "(i) at least once in each week during the first 3 months of the sentence and at least once in each month during the remainder of the sentence; and "(ii) as and when required to do so by a probation officer: "(c) the offender must notify a probation officer of his or her residential address and the nature and place of his or her employment when asked to do so: "(d) the offender must not move to a new residential address in another probation area without the prior written consent of a probation officer: "(e) if consent is given under paragraph (d), 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: "(f) 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 (unless notification is impossible in the circumstances) and must advise the probation officer of the new address: "(g) the offender must not reside at any address at which a probation officer has directed the offender not to reside: "(h) 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: "(i) the offender must not associate with any specified person, or with persons of any specified class, with whom a probation officer has, in writing, directed the offender not to associate: "(j) the offender must take part in a rehabilitative and reintegrative needs assessment if and when directed to do so by a probation officer. "(2) The conditions in subsection (1)(d) to (g) do not apply if, and to the extent that, they are inconsistent with--- "(a) any special condition imposed by the court; or "(b) in the case of an offender who is also subject to a sentence of community detention, any condition of that sentence. "54[G] Special conditions related to programmes A court may impose any special condition or conditions related to a programme if the court is satisfied that--- "(a) there is a significant risk of further offending by the offender; and "(b) standard conditions alone would not adequately reduce that risk; and "(c) the offender requires a programme to reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender. "54[H] Programmes For the purposes of section 54{F} [G], programme means any of the following (whether residential or non-residential in nature): "(a) any psychiatric or other counselling or assessment: "(b) attendance at any medical, psychological, social, therapeutic, cultural, educational, employment-related, rehabilitative, or reintegrative programme: "(c) placement in the care of any appropriate person, persons, or agency approved by the chief executive of the Department of Corrections, such as, and without limitation,--- "(i) an iwi, hapu, or whanau: "(ii) a marae: "(iii) an ethnic or cultural group: "(iv) a religious group, such as a church or religious order: "(v) members or particular members of any of the above. "54[I] Other special conditions "(1) A court may impose any of the special conditions described in subsection (3) if the court is satisfied that--- "(a) there is a significant risk of further offending by the offender; and "(b) standard conditions alone would not adequately reduce that risk; and "(c) the imposition of special conditions would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender. "(2) A court may only impose a condition of the kind described in subsection (3)(d) (which relates to judicial monitoring) if it is also satisfied that, because of the special circumstances of the offender, this is necessary to assist the offender's compliance with the sentence. "(3) The conditions referred to in subsections (1) and (2) comprise--- "(a) any conditions that the court thinks fit relating to the offender's place of residence (which may include a condition that the offender not move residence), finances, or earnings: "(b) conditions requiring the offender to take prescription medication: "(c) conditions requiring the offender to undertake training in basic work and living skills: "(d) a condition requiring the offender to comply with the requirements of judicial monitoring under subpart 2{A} [B] as directed by a probation officer or the sentencing Judge: "(e) any other conditions that the court thinks fit to reduce the likelihood of further offending by the offender. "(4) No court may impose a condition under this section that--- "(a) the offender pay any fine, reparation, or other sum ordered to be paid on conviction; or "(b) 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; or "(c) the offender submit to electronic monitoring. "(5) No offender may be made subject to a special condition that requires the offender to take prescription medication unless the offender--- "(a) has been fully advised, by a person who is qualified to prescribe that medication, about the nature and likely or intended effect of the medication and any known risks; and "(b) consents to taking the prescription medication. "(6) An offender does not breach his or her conditions for the purposes of section 70A if he or she withdraws consent to taking prescription medication[, but the failure to take the medication may give rise to a ground for variation or cancellation of the sentence of intensive supervision under section 54K]. "54[J] Offender to be under supervision of probation officer An offender who is subject to a sentence of intensive supervision is 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. "54[K] Variation or cancellation of sentence of intensive supervision "(1) An offender who is subject to a sentence of intensive supervision, or a probation officer, may apply, in accordance with section 72, 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 any special conditions, or the imposition of additional special 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 72, for an order under subsection (3) of this section if an offender who is subject to a sentence of intensive supervision is convicted of an offence punishable by imprisonment. "(3) On an application under subsection (1) or (2), the court may, if it is satisfied that the grounds on which the application is based have been established, make an order to--- "(a) remit, suspend, or vary any special conditions imposed by the court, or impose additional special conditions: "(b) cancel the sentence: "(c) cancel the sentence and substitute any other sentence (including another sentence of intensive supervision) that could have been imposed on the offender at the time when the offender was convicted of the offence for which the sentence was imposed. "(4) If the court varies a special condition or imposes an additional special condition under subsection (3)(a), section 54{H} [I] applies. "(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, 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 special condition imposed by the court, a probation officer may suspend the special condition until the application has been heard and disposed of. New (unanimous) ----------------------------------------------------------------------- "54L Application of section 54K during epidemic "(1) While an epidemic management notice is in force,--- "(a) a probation officer who has applied in accordance with section 72 for an order under section 54K(3) varying the special conditions subject to which a sentence of intensive supervision was imposed by the court on an offender may himself or herself vary those conditions; and "(b) any probation officer may himself or herself vary the special conditions subject to which a sentence of intensive supervision was imposed by the court on an offender if the offender has applied in accordance with section 72 for an order under section 54K(3) varying those conditions; and "(c) a probation officer may vary or suspend any standard conditions of a sentence of intensive supervision. "(2) A variation under subsection (1)(a) or (b) has effect until the application concerned has been heard or disposed of. "(3) Any variation or suspension of a standard condition under subsection (1)(c) has effect until the earlier of--- "(a) the revocation of the epidemic management notice; or "(b) the date on which a probation officer rescinds the variation or suspension." ----------------------------------------------------------------------- 51 Sentence of community work Section 55(1) is amended by inserting the following paragraph after paragraph (a): "(ab) if the offender is convicted of an offence and the enactment prescribing the offence expressly provides that a sentence of home detention may be imposed on conviction; or". 52 Guidance on use of sentence of community work Section 56(1)(a) is amended by omitting "to make compensation to the community" and substituting "to be held accountable to the community by making compensation to it". 53 Concurrent and cumulative sentences of community work (1) Section 57 is amended by inserting the following subsection after subsection (2): "(2A) If a court directs that sentences of community work be served cumulatively (whether or not the sentences are imposed at the same time), the total term of the sentences must not be more than 400 hours." (2) Section 57 is amended by repealing subsection (3) and substituting the following subsection: Struck out (unanimous) ======================================================================= "(3) If a court imposes a sentence of community work and a sentence of supervision, intensive supervision, or community detention, or imposes one of them on an offender who is already subject to any other of those sentences, the sentences must be served concurrently. ======================================================================= New (unanimous) ----------------------------------------------------------------------- "(3) A sentence of community work must be served concurrently with any sentence of supervision, intensive supervision, community detention, or home detention, whether or not the sentences are imposed at the same time." ----------------------------------------------------------------------- 54 New section 57A inserted The following section is inserted after section 57: "57A Court may defer commencement date of sentence of community work If a court imposes both a sentence of community work and a sentence of [either] intensive supervision [or home detention], the court may defer the commencement of the sentence of community work for a specified period if[,] in its opinion, deferral is necessary to enable the offender to comply with {any conditions of the sentence of intensive supervision imposed under section 54E, 54F, or 54H.} [---] New (unanimous) ----------------------------------------------------------------------- "(a) in the case of a sentence of intensive supervision, any conditions imposed under section 54F, 54G, or 54I: "(b) in the case of a sentence of home detention, any conditions imposed under section 80C or 80D." ----------------------------------------------------------------------- 55 Length of sentence of community work Section 58 is repealed and the following section substituted: "58 Length of sentence of community work "(1) If the court imposes a sentence of community work of 100 hours or less, that sentence must be served within 6 months of the date that it commences under section 75. "(2) If the court imposes a sentence of community work of more than 100 hours, the offender must serve at least 100 hours in every 6-month period [from the date on which the sentence commences] until the number of hours imposed under the sentence has been served. New (unanimous) ----------------------------------------------------------------------- "(3) Any work done by an offender under a sentence of community work must be treated as having been done under that sentence and under any and each other concurrent sentence of community work that the offender was subject to at the time that the work was done." ----------------------------------------------------------------------- 56 Authorised work for person sentenced to community work Section 63(1) is amended by adding the following paragraph: "(d) at or for any local authority (within the meaning of the Local Government Act 2002)." 57 New sections 66A to 66D inserted The following sections are inserted after section 66: "66A Court may authorise hours of work to be converted into training "(1) This section applies to sentences of community work of at least 80 hours. "(2) A court may, when imposing a sentence of community work, or at any time on application by a probation officer, authorise a probation officer to direct that some of the hours of work ordered to be undertaken be instead spent in training in basic work and living skills. "(3) In determining whether to give an authorisation under this section, the court must take account of both--- "(a) the benefits of skill development to the offender for reducing the likelihood of his or her reoffending; and "(b) the need to hold the offender accountable to the community by making compensation to it. "66B Some hours of work may be converted to training "(1) If authorised by the Court under section 66A, a probation officer may, but is not obliged to, direct that a specified number of hours of work, not exceeding 20% of the total number of hours under the sentence, be instead spent in training in basic work and living skills. "(2) A probation officer may not give a direction under subsection (1) unless--- "(a) it is reasonably practicable for the offender to undertake training in basic work and living skills (having regard to the availability of that training in the place where the offender lives); and "(b) the offender consents to undertake that training. "(3) Any hours spent by the offender training in basic work and living skills under a direction given under subsection (1) must, for all legal purposes, be treated as hours of authorised community work undertaken by the offender under his or her sentence. "(4) Subsection (3) is subject to section 66C. "66C Consequences of failing without excuse to complete training If an offender fails, without reasonable excuse, to complete the number of hours training in basic work and living skills directed under section 66B,--- "(a) any hours spent by the offender undertaking that training are not to be treated as hours of authorised community work undertaken by the offender under his or her sentence: "(b) the offender must, in addition to the period spent in training, but subject to section 67, undertake community work for the total number of hours ordered under the sentence. "66D When hours of community work not counted Struck out (unanimous) ======================================================================= If, in the opinion of a probation officer, an offender fails to carry out that work to the satisfaction of the probation officer, the probation officer may refuse to treat up to 10% of the hours of work undertaken by the offender as hours of community work undertaken by the offender under his or her sentence. ======================================================================= New (unanimous) ----------------------------------------------------------------------- "(1) If an offender fails to carry out any work under a sentence of community work to the satisfaction of the probation officer, the probation officer may, subject to subsection (2), refuse to treat that work as work undertaken under the sentence. "(2) The number of hours that the probation officer may refuse to treat as work undertaken under the sentence must not exceed 10% of the total number of hours under the sentence." ----------------------------------------------------------------------- New (unanimous) ----------------------------------------------------------------------- 57A Extension during epidemic of period within which community work must be done Section 69A(1) is amended by inserting "total" after "not more than 12 months the". ----------------------------------------------------------------------- 58 New heading and sections 69{A} [B] to 69{I} [M] inserted The following heading and sections are inserted after section 69[A]: "Community detention "69[B] Sentence of community detention "(1) A court may sentence an offender to community detention if--- "(a) the offender is convicted of an offence punishable by imprisonment; or "(b) the offender is convicted of an offence and the enactment prescribing the offence expressly provides that a sentence of home detention may be imposed on conviction; or "(c) the offender is convicted of an offence and the enactment prescribing the offence expressly provides that a community-based sentence may be imposed on conviction. "(2) The sentence term may be for a period, being no more than 6 months, that the court thinks fit. "(3) The court must specify the curfew period and the curfew address when sentencing the offender to a sentence of community detention. "(4) Every curfew period specified under subsection (3) must not be for a period of less than 2 hours, and the total of every curfew period for any week must not be more than 84 hours. "(5) An offender is not in custody during the curfew period. "69[C] Guidance on use of sentence of community detention "(1) A court may impose a sentence of community detention if the court is satisfied--- "(a) that a sentence of community detention[---] "(i) would reduce the likelihood of further offending by restricting the offender's movements during specified periods, including, but not limited to, offending of a particular type or at a particular time{; and} [; or] New (unanimous) ----------------------------------------------------------------------- "(ii) would achieve 1 or more of the purposes set out in section 7(1)(a), (b), (e), or (f); and ----------------------------------------------------------------------- "(b) that an electronically monitored curfew is appropriate, taking into account the nature and the seriousness of the offence and the circumstances and the background of the offender. "(2) A court may sentence an offender to community detention if--- "(a) the court is satisfied that--- "(i) the proposed curfew address is suitable; and "(ii) the relevant occupants (as defined in section 26A(4)) of the proposed curfew address--- "(A) understand the conditions of the curfew that will apply to the offender; and "(B) consent to the offender remaining at the address in accordance with the curfew; and "(iii) the offender has been made aware of and understands all the conditions that will apply during the sentence and he or she agrees to comply with them; and "(b) the proposed curfew address is in an area in which a community detention scheme is operated by the chief executive of the Department of Corrections. "69[D] Concurrent and cumulative sentences of community detention "(1) If a court imposes a sentence of community detention on an offender who is already subject to a sentence of community detention, the sentences must be served concurrently unless the court directs that they are to be served cumulatively. "(2) If a court imposes cumulative sentences of community detention or imposes 1 or more sentences of community detention on an offender who is already serving a sentence of community detention, the total term of the sentences of community detention must not be more than 6 months. "(3) If a court imposes a sentence of community work and a sentence of community detention, or imposes one of them on an offender who is already subject to the other, the sentences must be served concurrently. "69[E] Conditions of community detention during sentence term "(1) An offender sentenced to community detention is subject to the following conditions during the sentence term: "(a) during the curfew period--- "(i) the offender must not, at any time, leave the curfew address except in the circumstances set out in subsection (2): "(ii) the offender is under the supervision of a probation officer and must co-operate with the probation officer and comply with any lawful direction given by that probation officer: "(b) 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 24 hours, after the sentence is imposed[, unless the 24 hours elapses on a weekend or a public holiday, in which case the offender must report on the next working day]: "(c) the offender must report to a probation officer as and when required to do so by the probation officer, and must notify the probation officer of his or her residential address, any change to that address, and the nature and place of his or her employment when asked to do so: "(d) the offender must keep in his or her possession the curfew order drawn up under section 74 and, if requested to do so by a member of the police or a probation officer, must produce the order for inspection: "(e) the offender must, when required to do so by a probation officer, submit to the electronic monitoring of compliance with the conditions of his or her sentence, which may require the offender to be connected to electronic monitoring equipment throughout the sentence term and not just throughout the curfew period. "(2) An offender may leave the curfew address during the curfew period only--- "(a) to seek urgent medical or dental treatment; or "(b) to avoid or minimise a serious risk of death or injury to the offender or any other person; or "(c) with the approval of a probation officer--- "(i) to seek or engage in employment; or "(ii) to attend training or other rehabilitative or reintegrative activities or programmes; or "(iii) to attend a restorative justice conference or other process relating to the offender's offending; or "(iv) to carry out any undertaking arising from any restorative justice process; or "(d) with the approval of a probation officer and subject to any conditions imposed by the probation officer, on humanitarian grounds. "(3) A probation officer may only give an approval under subsection (2)(c) if the offender is serving a {community-based} sentence of supervision or intensive supervision together with the sentence of community detention. "(4) A probation officer may approve an alternative curfew address under section 69{I} [K], pending determination of an application to vary the curfew address under section 69{H} [I]. "69[F] Electronic monitoring "(1) The purpose of an electronic monitoring condition imposed as a condition under section 69{D} [E](1)(e) is to deter the offender from breaching the condition that the offender remain at the curfew address during the curfew period and to monitor compliance with that condition. "(2) {For the purposes of the Privacy Act 1993,} Information about an offender that is obtained through electronic monitoring, may be used only for the purposes referred to in subsection (1) and for the following purposes: "(a) to verify compliance with the condition that the offender remain at the curfew address during the curfew period: "(b) to detect non-compliance with that condition: "(c) to provide evidence of non-compliance with that condition and the commission of offences during the curfew period: New (unanimous) ----------------------------------------------------------------------- "(d) to verify that the offender has not tampered or otherwise interfered with the ability of the electronic monitoring equipment to operate effectively and accurately. ----------------------------------------------------------------------- "(3) Information may be collected during the whole of the sentence term but may be used only if it was collected [for 1 or more of the purposes set out in this section and, except for information collected for the purposes in subsection (2)(d), was collected] during the curfew period {and for the purposes set out in this section}. New (unanimous) ----------------------------------------------------------------------- "(4) Any information obtained by electronic monitoring outside the curfew period must be destroyed as soon as practicable. ----------------------------------------------------------------------- "69[G] Offence to breach conditions of community detention An offender commits an offence, and is liable on summary conviction to imprisonment for a term not exceeding 6 months or to a fine not exceeding $1,500, who--- "(a) fails, without reasonable excuse, to comply with any condition of a sentence of community detention; or "(b) fails, without reasonable excuse, to report when required to do so under section 78 or 80. "69[H] Offence to refuse entry to community detention curfew address Struck out (unanimous) ======================================================================= "(1) This section applies to every person at a curfew address. ======================================================================= "(2) Every person commits an offence, and is liable on summary conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $5,000, who refuses or fails, without reasonable excuse, to allow a probation officer[,] who has identified himself or herself[,] {as such} to enter into {a} [the] curfew address{, if---} [if the offender is required to be at the address at the time that the probation officer seeks entry.] Struck out (unanimous) ======================================================================= "(a) the offender is required to be at the address at the time the probation officer seeks entry; or "(b) the probation officer seeks entry to service or inspect any equipment used in the electronic monitoring of the offender's compliance with the condition that the offender remain at the curfew address during the curfew period (whether or not the offender is required to be at the address at that time). ======================================================================= New (unanimous) ----------------------------------------------------------------------- "(3) Every person commits an offence, and is liable on summary conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $5,000, who refuses or fails, without reasonable excuse, to allow an authorised person to enter into the curfew address for the purpose of servicing or inspecting any equipment used in the electronic monitoring of the offender's compliance with the condition that the offender remain at the curfew address during the curfew period (whether or not the offender is required to be at the curfew address at the time). "(4) For the purposes of subsection (3), an authorised person is a person who--- "(a) is a probation officer and has identified himself or herself; or "(b) accompanies a person described in paragraph (a); or "(c) is authorised in writing by a probation officer and has produced that written authority to an occupant of the residence. ----------------------------------------------------------------------- "69[I] Variation or cancellation of sentence of community detention "(1) An offender who is subject to a sentence of community detention, or a probation officer, may apply, in accordance with section 72, for an order under subsection ({2} [3]) on the grounds that--- "(a) the offender is unable to comply, or has failed to comply, with any conditions of the sentence; or "(b) the curfew address is no longer available or suitable because of a change in circumstances; or "(c) having regard to any changes 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 suspension or variation of the curfew period; 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 for an order under subsection (3) if an offender, who is subject to a sentence of community detention, is convicted of an offence punishable by imprisonment. "(3) On an application under subsection (1) or (2), the court may, if it is satisfied that the grounds on which the application is based have been established, {make an order to}--- "(a) suspend or vary the curfew period; or New (unanimous) ----------------------------------------------------------------------- "(ab) vary the curfew address; or ----------------------------------------------------------------------- "(b) cancel the sentence; or "(c) cancel the sentence and substitute any other sentence (including another sentence of community detention) that could have been imposed on the offender at the time that the offender was convicted of the offence for which the sentence was imposed. "(4) When determining a substitute sentence to be imposed 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 or on any other date that the court may specify. "(6) If an application is made under this section for the suspension or variation of the curfew period, a probation officer may suspend the curfew period until the application has been heard and disposed of. New (unanimous) ----------------------------------------------------------------------- "69[J] Application of section 69I during epidemic "(1) While an epidemic management notice is in force,--- "(a) a probation officer who has applied in accordance with section 72 for an order under section 69I(3) varying the curfew period subject to which a sentence of community detention was imposed by the court on an offender may himself or herself vary the curfew period; and "(b) any probation officer may himself or herself vary the curfew period subject to which a sentence of community detention was imposed by the court on an offender if the offender has applied in accordance with section 72 for an order under section 69I(3) to vary the curfew period; and "(c) a probation officer may vary or suspend any conditions of a sentence of community detention. "(2) A variation under subsection (1)(a) or (b) has effect until the application concerned has been heard or disposed of. "(3) Any variation or suspension of a condition has effect until the earlier of---- "(a) the revocation of the epidemic management notice; or "(b) the date on which a probation officer rescinds the variation or suspension. ----------------------------------------------------------------------- "69[K] Alternative curfew address pending determination of application under section 69{H} [I] "(1) This section applies if a probation officer or an offender who is subject to a sentence of community detention intends to apply, or has applied, for a variation of conditions under section 69{H} [I] on the ground specified in section 69{H} [I](1)(b) (which relates to the offender's curfew address). "(2) A probation officer may approve an alternative curfew address at which the offender must remain during the curfew period pending the determination of an application. "(3) If a probation officer approves an alternative {residence} [curfew address] before an application under section 69{H} [I] has been made, the probation officer must make an application to the court under that section within 5 working days. "(4) Subsection (3) does not apply if an offender makes an application under section 69{H} [I] within the 5-day period specified in subsection (3). "(5) If, in the opinion of the probation officer, there is no suitable alternative {residence} [curfew address] available and the probation officer has not made an application under section 69{H} [I], the probation officer must make an application to the court under that section at the earliest opportunity. New (unanimous) ----------------------------------------------------------------------- "69L When sentence ends on non-release day If the last day of an offender's sentence of community detention falls on a non-release day, the offender ceases to be subject to the sentence on the nearest preceding day that is not a non-release day. "69M Community detention does not affect entitlements under Social Security Act 1964 The fact that a person is serving a sentence of community detention does not, of itself, affect any entitlement the person may have under the Social Security Act 1964." ----------------------------------------------------------------------- 59 New section 70A inserted The following section is inserted after section 70: "70A Offence to breach conditions of intensive supervision An offender commits an offence, and is liable on summary conviction to imprisonment for a term not exceeding 6 months or to a fine not exceeding $1,500, who--- "(a) fails, without reasonable excuse, to comply with any condition of a sentence of intensive supervision; or "(b) fails, without reasonable excuse, to report when required to do so under section 78 or 80." 60 Jurisdiction and procedure (1) Section 72(1) is amended by omitting "or section 68" and substituting ", 54{J} [K], 68, or 69{H} [I]". New (unanimous) ----------------------------------------------------------------------- (2) Section 72(3) is amended by omitting "or section 68" and substituting ", 54K, 68, or 69I". ----------------------------------------------------------------------- 61 Order must be drawn up and copy given to offender, etc Section 74 is amended by inserting the following subsection after subsection (3): "(3A) If the community-based sentence is a sentence of community detention, then, in addition to the information required to be included in the order under subsection (3), the order must also include--- "(a) the sentence term; and "(b) the curfew period; and "(c) the conditions that apply, including those that apply for the duration of the sentence term and those that only apply during the curfew period." 62 Commencement of community-based sentences New (unanimous) ----------------------------------------------------------------------- (1AA) Section 75(2)(a) is amended by omitting "the remainder of this section" and substituting "sections 75A and 75B". ----------------------------------------------------------------------- (1) Section 75 is amended by inserting the following subsection after subsection (2): "(2A) If the commencement date of a sentence of community work is deferred under section 57A, the sentence commences on the date specified in the order of the court." New (unanimous) ----------------------------------------------------------------------- (2) Section 75 is amended by repealing subsections (3) to (8). ----------------------------------------------------------------------- New (unanimous) ----------------------------------------------------------------------- 62A New sections 75A and 75B inserted The following sections are inserted after section 75: "75A Commencement of cumulative sentences of community work "(1) If a sentence of community work is imposed cumulatively on another sentence of community work imposed at the same time,--- "(a) at least 1 of the sentences must commence on the day that sentence is imposed; and "(b) the commencement date for the subsequent sentence is the date of the completion of the hours of community work under the first sentence of community work to be served. "(2) If a sentence of community work is imposed cumulatively on another sentence of community work to which the offender is already subject, the commencement date for the subsequent sentence is the date of the completion of the hours of community work under the first sentence of community work to be served. "(3) To avoid doubt, if a sentence of community work is imposed cumulatively on another sentence of community work, hours of work done under either of the sentences on the date referred to in subsections (1)(b) or (2) are not counted towards the hours of work required to be done under the other sentence. "(4) If a sentence of community work is imposed cumulatively on another sentence of community work (the first sentence), whether or not imposed at the same time, and the first sentence is subsequently quashed,--- "(a) the commencement date for the subsequent sentence is the date on which the subsequent sentence was imposed; and "(b) any hours of work completed under the quashed sentence must be treated as having been done under the subsequent sentence. "(5) If a sentence of community work is imposed cumulatively on another sentence of community work (the first sentence), whether or not imposed at the same time, and the first sentence is subsequently cancelled,--- "(a) the commencement date for the subsequent sentence is the date on which the first sentence was cancelled; and "(b) to avoid doubt, any hours of work completed under the cancelled sentence must not be treated as having been done under the subsequent sentence. "(6) A sentence of community work expires on the date that the offender completes the hours of work required under the sentence (taking into account any hours remitted under section 67), whether or not the period of time allowed under section 58 or any extended period granted under section 69 has expired. "75B Commencement of cumulative sentences of community detention "(1) If a sentence of community detention is imposed cumulatively on another sentence of community detention imposed at the same time,--- "(a) at least 1 of the sentences must commence on the day that sentence is imposed; and "(b) the commencement date for the subsequent sentence is the date of the completion of the term of community detention under the first sentence of community detention to be served. "(2) If a sentence of community detention is imposed cumulatively on another sentence of community detention to which the offender is already subject, the commencement date for the subsequent sentence is the date of the completion of the term of community detention under the first sentence of community detention to be served. "(3) To avoid doubt, if a sentence of community detention is imposed cumulatively on another sentence of community detention, any period during which the offender was subject to either of the sentences referred to in subsections (1)(b) or (2) is not counted towards the term of the other sentence. "(4) If a sentence of community detention is imposed cumulatively on another sentence of community detention (the first sentence), whether or not imposed at the same time, and the first sentence is subsequently quashed,--- "(a) the commencement date for the subsequent sentence is the date on which the subsequent sentence was imposed; and "(b) any period during which the offender was subject to the quashed sentence must be treated as having been served under the subsequent sentence. "(5) If a sentence of community detention is imposed cumulatively on another sentence of community detention (the first sentence), whether or not imposed at the same time, and the first sentence is subsequently cancelled,--- "(a) the commencement date for the subsequent sentence is the date on which the first sentence was cancelled; and "(b) to avoid doubt, any period during which the offender was subject to the cancelled sentence must not be treated as having been served under the subsequent sentence." ----------------------------------------------------------------------- 63 Effect of subsequent sentence of imprisonment Section 78(4) is amended by inserting "or 54H(3)(b)" after "section 52(2)(b)". 64 Period of suspension not counted towards sentence Section 79 is amended by adding the following subsections: "(3) No period during which a sentence of intensive supervision is suspended under section 78(2) or (7) is counted towards the period under section 54{A} [B](2). "(4) No period during which a sentence of community detention is suspended under section 78(2) or (7) is counted towards the period under section 69{A} [B](2)." 65 New subparts 2A and 2B inserted The following subparts are inserted after section 80: "Subpart 2A---Home detention "80A Sentence of home detention "(1) A court may sentence an offender to a sentence of home detention if--- "(a) the offender is convicted of an offence punishable by imprisonment; or "(b) the offender is convicted of an offence and the enactment prescribing the offence expressly provides that a sentence of home detention may be imposed on conviction. "(2) A court may sentence an offender to home detention under subsection (1) if--- "(a) the court is satisfied that--- "(i) the proposed home detention residence is suitable; and "(ii) the relevant occupants (as defined in section 26A(4)) of the proposed home detention residence--- "(A) understand the conditions of home detention that will apply to the offender; and "(B) consent to the offender serving the sentence in the residence in accordance with those conditions; and New (majority) ----------------------------------------------------------------------- "(C) have been informed that they may withdraw their consent to the offender serving the sentence in the residence at any time; and ----------------------------------------------------------------------- "(iii) 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; and "(b) the proposed home detention residence is in an area in which a home detention scheme is operated by the chief executive of the Department of Corrections. "(3) A sentence of home detention may be for such period as the court thinks fit, but must not be for less than 14 days or more than 12 months. New (majority) ----------------------------------------------------------------------- "(3A) The court must specify the home detention residence when sentencing the offender to a sentence of home detention. ----------------------------------------------------------------------- "(4) An offender sentenced to home detention is not in custody while serving the sentence. "(5) This section is subject to section 80B. "80B Concurrent and cumulative sentences of home detention "(1) If a court imposes a sentence of home detention on an offender who is already subject to a sentence of home detention, the sentences must be served concurrently unless the court directs that they are to be served cumulatively. "(2) If a court imposes cumulative sentences of home detention or imposes 1 or more sentences of home detention on an offender who is already serving a sentence of home detention, the total term of the sentences of home detention must not be more than 12 months. "(3) Before deciding to impose 2 or more sentences of home detention cumulatively or concurrently, the court must consider the guidance under sections 84 and 85 as if it applied to sentences of home detention. "(4) If a court imposes a sentence of community work and a sentence of home detention, or imposes one of them on an offender who is already subject to the other, the sentences must be served concurrently. "80C Detention conditions applying to offender sentenced to home detention "(1) An offender who is serving a sentence of home detention is subject to detention conditions comprising--- "(a) the standard conditions set out in subsection (2); and "(b) any special conditions that may be imposed by the court under section 80D. "(2) The standard conditions for a sentence of home detention are that--- "(a) the offender is under the supervision of a probation officer and must co-operate with the probation officer and comply with any lawful direction given by that probation officer; and "(b) the offender must not leave the home detention residence at any time except in the circumstances set out in subsections (3), (4), and (5); and "(c) the offender must keep in his or her possession the order drawn up under section 80ZC and, if requested to do so by a member of the police or a probation officer, must produce the order for inspection; and "(d) the offender must, when required by a probation officer, submit to the electronic monitoring of compliance with his or her detention conditions; and "(e) 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; and "(f) the offender must not associate with any specified person, or with persons of any specified class, with whom a probation officer has, in writing, directed the offender not to associate; and "(g) the offender must take part in a rehabilitative and reintegrative needs assessment if and when directed to do so by a probation officer. "(3) An offender may leave the home detention residence only--- "(a) to seek urgent medical or dental treatment; or "(b) to avoid or minimise a serious risk of death or injury to the offender or any other person; or "(c) with the approval of a probation officer--- "(i) to comply with any special condition; or "(ii) to seek or engage in employment; or "(iii) to attend training or other rehabilitative or reintegrative activities or programmes; or "(iv) to attend a restorative justice conference or other process relating to the offender's offending; or "(v) to carry out any undertaking arising from any restorative justice process; or "(vi) for any other purpose specifically approved by the probation officer. "(4) A probation officer may approve an alternative residence under section 80H pending determination of an application to vary the residence under section 80F. "(5) In addition to absences authorised under subsection (3), a probation officer may authorise an offender, who has served at least three quarters of a sentence of home detention of 6 months or more, to be absent from the home detention residence for up to 4 hours a day without a specified purpose for any or all days remaining to be served under the sentence. "(6) For the purposes of subsection (5), an offender who is subject to 2 or more sentences of home detention is eligible when he or she has served the longer of--- "(a) three quarters of the longest of any concurrent sentences of home detention imposed on the offender; or "(b) three quarters of the notional single sentence of home detention that is created when {1 or more} sentences of home detention {is} [are] ordered to be served [concurrently or] cumulatively {on another sentence of home detention}. "80D Special conditions of sentence of home detention "(1) In addition to the standard conditions that apply under section 80C, the court may, subject to subsections (2), (3), and (6), impose 1 or more special conditions described in subsection (4). "(2) A court may impose any of the special conditions described in subsection (4) if the court is satisfied that--- "(a) there is a significant risk of further offending by the offender; and "(b) standard conditions alone would not adequately reduce the risk; and "(c) the imposition of special conditions would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender. "(3) A court may only impose a condition of the kind described in subsection (4)(d) (which relates to judicial monitoring) if it is also satisfied that, because of the special circumstances of the offender, this is necessary to assist the offender's compliance with the sentence. "(4) The special conditions referred to in subsection (2) are--- "(a) any conditions that the court thinks fit relating to the offender's finances or earnings: "(b) conditions requiring the offender to take prescription medication: "(c) conditions relating to a programme: "(d) a condition requiring the offender to comply with the requirements of judicial monitoring under subpart 2{A} [B] as directed by a probation officer or the sentencing Judge: "(e) any other conditions that the court thinks fit to reduce the likelihood of further offending by the offender. "(5) For the purposes of subsection (4), programme has the same meaning as in section 54{G} [H]. New (majority) ----------------------------------------------------------------------- "(5A) No court may impose a condition under this section that--- "(a) the offender pay any fine, reparation, or other sum ordered to be paid on conviction; or "(b) 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. ----------------------------------------------------------------------- "(6) No offender may be made subject to a special condition that requires the offender to take prescription medication unless the offender--- "(a) has been fully advised, by a person who is qualified to prescribe that medication, about the nature and likely or intended effect of the medication and any known risks; and "(b) consents to taking the prescription medication. "(7) An offender does not breach his or her detention conditions for the purposes of section 80R if he or she withdraws consent to taking prescription medication; but the failure to take the medication may give rise to a ground for variation or cancellation of the sentence of home detention under section 80F. "80E Electronic monitoring "(1) The purpose of an electronic monitoring condition is to deter the offender from breaching conditions that relate to his or her whereabouts, and to monitor compliance with those conditions. "(2) {For the purposes of the Privacy Act 1993,} Information about an offender that is obtained through electronic monitoring may be used both for the purposes referred to in subsection (1) and for the following purposes: "(a) to verify compliance with any detention conditions: "(b) to detect non-compliance with any detention conditions and the commission of offences: "(c) to provide evidence of non-compliance with detention conditions and the commission of offences. "80F Application for variation or cancellation of sentence of home detention "(1) An offender who is subject to a sentence of home detention, or a probation officer, may apply for an order under subsection (4) on the grounds that--- "(a) the offender is unable to comply, or has failed to comply, with any detention conditions: "(b) any programme to which the offender is subject is no longer available or suitable for the offender: "(c) the home detention residence is no longer available or suitable because of a change in circumstances: "(d) having regard to any changes 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 any special conditions, or the imposition of additional special 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 for an order under subsection (4) if an offender, who is subject to a sentence of home detention, is convicted of an offence punishable by imprisonment. "(3) If an offender is subject to special detention conditions in relation to 2 or more sentences of home detention at the same time, a probation officer must apply for an order under subsection (4)(a) if he or she is satisfied that--- "(a) any of the special conditions are incompatible with each other; or "(b) in light of all the conditions to which the offender is subject under the sentences, it is unreasonable to expect the offender to comply with 1 or more of the special conditions. "(4) On an application under subsection (1), (2), or (3), the court may, if it is satisfied that the grounds on which the application is based have been established[,]--- "(a) remit, suspend, or vary any special conditions imposed by the court, or impose additional special conditions; or New (majority) ----------------------------------------------------------------------- "(ab) vary the home detention residence; or ----------------------------------------------------------------------- "(b) cancel the sentence; or "(c) cancel the sentence and substitute any other sentence (including another sentence of home detention) that could have been imposed on the offender at the time that the offender was convicted of the offence for which the sentence was imposed. New (majority) ----------------------------------------------------------------------- "(4A) An application under subsection (1), (2), or (3) may be made at any time before or after the sentence commences. ----------------------------------------------------------------------- "(5) Section 72 applies, with any necessary modifications, to an application under this section. "80G Matters relating to orders under section 80F "(1) If the court cancels a sentence of home detention under section 80F(4)(c), the court may at the same time cancel any sentence of community work that the offender is serving concurrently with the sentence of home detention. "(2) When determining a substitute sentence under section 80F(4)(c), the court must take into account the portion of the original sentence that remains unserved at the time of the order. "(3) If the court varies a special condition or imposes a new special condition under section 80F(4)(a), section 80D applies. "(4) If the court cancels the sentence, the sentence expires on the date that the order is made or on any other date that the court may specify. "(5) If an application is made under section 80F for the remission, suspension, or variation of any special condition of a sentence of home detention, a probation officer may suspend the condition until the application has been heard and disposed of. "80H Alternative residence pending determination of application under section 80F "(1) This section applies if a probation officer or an offender who is subject to a sentence of home detention intends to apply, or has applied, for a variation of conditions under section 80F on the ground in section 80F(1)(c) (which relates to the offender's home detention residence). "(2) A probation officer may approve an alternative residence in which the sentence of home detention must be served pending the determination of an application. "(3) If a probation officer approves an alternative residence before an application under section 80F has been made, the probation officer must make an application to the court under that section within 5 working days. "(4) Subsection (3) does not apply if an offender makes an application under section 80F within the 5-day period specified in subsection (3). "(5) If, in the opinion of the probation officer, there is no suitable alternative residence available and the probation officer has not made an application under section 80F, the probation officer must make an application to the court under that section at the earliest opportunity. "80I Leave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases "(1) This section applies if--- "(a) a court has sentenced an offender to a short-term sentence of imprisonment; and "(b) at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available. "(2) At the time of sentencing[,] the court must make an order granting the offender leave to apply to {that court} [the court of first instance] for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date. "80J Appeal against order granting leave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention "(1) This section applies for the purposes of filing and determining any appeal against an order granting leave, or a refusal of the court to grant leave, under section 80I. "(2) For the purposes of Part 4 of the Summary Proceedings Act 1957 and Part 13 of the Crimes Act 1961, an order under section 80I is a sentence. "80K Application for cancellation of sentence of imprisonment and substitution of sentence of home detention "(1) An offender who is subject to a short-term sentence of imprisonment and who has leave to apply for cancellation of a sentence of imprisonment and substitution of a sentence of home detention under section 80I may apply to the court at any time. New (majority) ----------------------------------------------------------------------- "(1A) An application must be served as soon as practicable on the chief executive of the Department of Corrections. "(1B) An application must be accompanied by a pre-sentence report updated in accordance with section 80KA. ----------------------------------------------------------------------- "(2) On application under subsection (1), the court may, if satisfied of the matters in section 80A(2), cancel the sentence of imprisonment and substitute a sentence of home detention. "(3) A sentence of home detention substituted under subsection (2) may be for any period the court thinks fit, but must not be less than 14 days or more than 12 months. "(4) When substituting a sentence of home detention, 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 does not substitute a sentence of home detention, the court--- "(a) must reconsider the issue of leave to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention; and "(b) may make a further order granting the offender leave to apply to the court at any time for cancellation of the sentence of imprisonment and substitution of a sentence of home detention. New (majority) ----------------------------------------------------------------------- "(6) A sentence of imprisonment that is cancelled under this section is a custodial sentence for the purposes of any other enactment. "80KA Updated pre-sentence report "(1) An offender subject to a sentence of imprisonment who makes an application for a substitution of a sentence of home detention under section 80K must agree to a probation officer updating the offender's pre-sentence report with any new information. "(2) If a request is made under subsection (1), the probation officer must update the report in accordance with section 26A. ----------------------------------------------------------------------- "80L Appeals in respect of substituted sentences "(1) This section applies if a court orders--- "(a) cancellation of a sentence of home detention and substitution of another sentence under section 80F; or "(b) cancellation of a sentence of imprisonment and substitution of a sentence of home detention under section 80K. "(2) For the purposes of any appeal or application for leave to appeal against the substituted sentence,--- "(a) a sentence substituted for a sentence imposed on the conviction of the offender on indictment is deemed to be a sentence imposed on the conviction of the offender on indictment; and "(b) a sentence substituted for a sentence imposed on the offender on the determination of an information in a District Court is deemed to be a sentence imposed on the determination of an information against the offender in a District Court. "80M Imposition of post-detention conditions on offender "(1) A court that sentences an offender to a term of home detention of 6 months or less may impose the standard post-detention conditions and any special post-detention conditions on the offender and, if it does so, must specify when the conditions expire. "(2) If a court sentences an offender to a term of home detention of more than 6 months--- "(a) the standard post-detention conditions apply to the offender for a period of 12 months from the detention end date, unless the court specifies otherwise; and sections 80P, 80Q, and 80T apply as if the standard conditions had been imposed by order of the court; and "(b) the court may, at the same time, impose any special post-detention conditions on the offender and, if it does so, must specify when the conditions expire. "(3) The court may specify that post-detention conditions imposed under this section expire on a date that is a specified period of at least 6 months, but no more than 12 months, from the detention end date. "(4) If the court imposes special post-detention conditions on the offender, the special post-detention conditions may apply for as long as, but not longer than, the standard post-detention conditions that apply to the offender. "(5) If the court sentences the offender to more than 1 sentence of home detention on the same occasion,--- "(a) only 1 order under this section may be made; and "(b) that order applies in respect of all the sentences of home detention imposed on that occasion. "80N Standard post-detention conditions The standard post-detention conditions of a sentence of home detention are the following--- "(a) the offender must report to a probation officer as and when required to do so by a probation officer and must notify the probation officer of his or her residential address and the nature and place of his or her employment when asked to do so: "(b) the offender must not move to a new residential address in another probation area without the prior written consent of the probation officer: "(c) if consent is given under paragraph (b), 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: "(d) 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 (unless notification is impossible in the circumstances) and must advise the probation officer of the new address: "(e) the offender must not reside at any address at which a probation officer has directed the offender not to reside: "(f) 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: "(g) the offender must not associate with any specified person, or with persons of any specified class, with whom the probation officer has, in writing, directed the offender not to associate: "(h) the offender must take part in a rehabilitative and reintegrative needs assessment if and when directed to do so by a probation officer. "80O Special post-detention conditions "(1) A court may impose any of the special post-detention conditions described in subsection (2) if the court is satisfied that--- "(a) there is a significant risk of further offending by the offender; and "(b) standard conditions alone would not adequately reduce that risk; and "(c) the imposition of special conditions would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender. "(2) The special post-detention conditions are the following--- "(a) any conditions that the court thinks fit relating to the offender's place of residence (which may include a condition that the offender not move residence), finances, or earnings: "(b) conditions requiring the offender to take prescription medication: "(c) conditions relating to a programme: "(d) any other conditions that the court thinks fit to reduce the likelihood of further offending by the offender. "(3) For the purposes of subsection (2) programme has the same meaning as in section 54{G} [H]. "(4) No court may impose a special post-detention condition that the offender submit to electronic monitoring. "(5) No offender may be made subject to a special post-detention condition that requires the offender to take prescription medication unless the offender--- "(a) has been fully advised, by a person who is qualified to prescribe that medication, about the nature and likely or intended effect of the medication and any known risks; and "(b) consents to taking the prescription medication. "80P Review of post-detention conditions if conditions incompatible "(1) This section applies if--- "(a) an offender is, at the same time, subject to post-detention conditions imposed under 2 or more orders made under section 80M; and "(b) a probation officer is satisfied that--- "(i) any special condition to which the offender is subject under any of the orders is incompatible with any other special condition to which the offender is subject under any other of the orders; or "(ii) in light of all the conditions to which the offender is subject under the orders, it is unreasonable to expect the offender to comply with 1 or more of the special conditions. "(2) The probation officer must apply for a review of the conditions to which the offender is subject under the orders made under section 80M. "(3) Section 80Q applies with any necessary modifications to an application made under this section. "80Q Variation or discharge of post-detention conditions "(1) An offender who is subject to post-detention conditions imposed under section 80M, or a probation officer, may apply for an order {varying or discharging those conditions} under subsection (3). "(2) Section 72 applies, with any necessary modifications, to an application under this section. "(3) On an application under subsection (1), the court may, if it thinks fit,--- "(a) suspend {any condition} or vary {the duration of} any condition, or impose any additional conditions described in section 80M[,] that could have been imposed on the offender at the time when the offender was convicted of the offence for which the sentence was imposed; or "(b) discharge a condition and substitute any other condition described in section 80M that could have been imposed on the offender at the time that the offender was convicted of the offence for which the sentence was imposed. "(4) If the court varies a special condition or imposes an additional special condition under subsection (3), section 80O applies. "(5) If an application is made under this section for the suspension, variation, or discharge of any condition, a probation officer may suspend the condition until the application has been heard and disposed of. "80R Offence to breach detention conditions An offender commits an offence, and is liable on summary conviction to imprisonment for a term not exceeding 1 year or to a fine not exceeding $2,000, who breaches, without reasonable excuse, any detention conditions of a sentence of home detention. "80S Offence to refuse entry to home detention residence "(1) This section applies to every person at a home detention residence. "(2) Every person commits an offence, and is liable on summary conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $5,000, who refuses or fails, without reasonable excuse, to allow a probation officer[,] who has identified himself or herself[,] {as such} to enter into the home detention residence if{---} [the offender is required to be at the residence at the time that the probation officer seeks entry.] Struck out (majority) ======================================================================= "(a) the offender is required to be at the address at the time the probation officer seeks entry; or "(b) the probation officer seeks entry to service or inspect any equipment used in the electronic monitoring of the offender's compliance with the standard condition that the offender remain at the home detention residence (whether or not the offender is required to be at the address at that time). ======================================================================= New (majority) ----------------------------------------------------------------------- "(3) Every person commits an offence, and is liable on summary conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $5,000, who refuses or fails, without reasonable excuse, to allow an authorised person to enter into the home detention residence for the purpose of servicing or inspecting any equipment used in the electronic monitoring of the offender's compliance with the sentence of home detention (whether or not the offender is required to be at the home detention residence at the time). "(4) For the purposes of subsection (3), an authorised person is a person who--- "(a) is a probation officer and has identified himself or herself; or "(b) accompanies a person described in paragraph (a); or "(c) is authorised in writing by a probation officer and has produced that written authority to an occupant of the residence. ----------------------------------------------------------------------- "80T Offence to breach post-detention conditions "(1) An offender commits an offence, and is liable on summary conviction to imprisonment for a term not exceeding 6 months or to a fine not exceeding $1,500, who breaches, without reasonable excuse, any post-detention conditions imposed under section 80M or 80Q. "(2) In the case of a condition of the kind referred to in section 80O(2)(b) (which involves prescription medication), an offender does not breach his or her conditions for the purposes of this section if he or she withdraws consent to taking prescription medication. "80U Arrest without warrant for breach of detention or post-detention conditions Any member of the police or any probation officer may arrest, without warrant, an offender whom the member or officer has reasonable grounds to believe has breached any of his or her detention conditions or post-detention conditions. "80V Court may defer start date of sentence of home detention "(1) The court may defer the start date of a sentence of home detention for a specified period of up to 2 months--- "(a) on humanitarian grounds; or "(b) if the court is satisfied that it is in the interests of justice to defer the start of the sentence of home detention. "(2) If a sentence of home detention is deferred in accordance with subsection (1), the sentence of home detention starts on the date to which the court has ordered that the sentence be deferred. "(3) Despite subsection (1), no court may defer the start date of a sentence of home detention if--- "(a) the sentence of home detention is imposed cumulatively on any other sentence of home detention; or "(b) the sentence of home detention is imposed in substitution for a sentence of home detention or imprisonment that has been quashed or set aside; or "(c) an order under this section has already been made in respect of the sentence; or "(d) the offender has already commenced serving the sentence or is detained under any other sentence or order. "80W Commencement of sentence of home detention "(1) A sentence of home detention commences on the day it is imposed unless the start date of the sentence is deferred under section 80V. "(2) Subsection (1) applies--- "(a) subject to the remainder of this section; and "(b) regardless of whether or not the sentence is imposed in substitution for another sentence. "(3) If a sentence of home detention is imposed cumulatively on another sentence of home detention imposed at the same time,--- "(a) at least 1 of the sentences must commence on the day that the sentence is imposed or to which the start date has been deferred under section 80V; and "(b) the commencement date for the subsequent sentence is the detention end date of the first sentence. "(4) If a sentence of home detention is imposed cumulatively on another sentence of home detention (the first sentence) to which the offender is already subject, the commencement date of the subsequent sentence is the detention end date of the first sentence. "(5) If a sentence of home detention is imposed cumulatively on another sentence of home detention (the first sentence), whether or not imposed at the same time, and the first sentence is subsequently quashed--- "(a) the commencement date for the subsequent sentence is the date on which the subsequent sentence was imposed; and "(b) any time served under the quashed sentence must be treated as having been served under the subsequent sentence. "(6) If a sentence of home detention is imposed cumulatively on another sentence of home detention (the first sentence), whether or not imposed at the same time, and the first sentence is subsequently cancelled,--- "(a) the commencement date for the subsequent sentence is the date on which the first sentence was cancelled; and "(b) any time served under the cancelled sentence must not be treated as having been served under the subsequent sentence. "80X Commencement of sentence of home detention after temporary surrender under Extradition Act 1999 "(1) This section applies if an offender is temporarily surrendered to New Zealand under the Extradition Act 1999 and--- "(a) is convicted and sentenced under this Act to a sentence of home detention; and "(b) is required to be returned in accordance with section 66(2) of the Extradition Act 1999 to the country from where the offender was surrendered on completion of the proceedings to which the extradition related. "(2) Unless the court otherwise directs, the sentence imposed does not commence until the offender has reported to a probation officer after being returned to New Zealand. "(3) An offender to whom this section applies must {report to a probation officer within 72 hours of the offender's arrival in New Zealand.} [---] New (majority) ----------------------------------------------------------------------- "(a) advise a probation officer as soon as possible of any change in circumstances affecting the availability or suitability of the home detention residence before he or she commences the sentence; and "(b) report to a probation officer within 72 hours of the offender's arrival in New Zealand. ----------------------------------------------------------------------- "(4) This section applies despite any other provisions in this Act. "80Y When home detention ends "(1) An offender ceases to be subject to a sentence of home detention when--- "(a) the offender reaches his or her detention end date; or "(b) a court cancels the sentence of home detention. "(2) If the offender's detention end date falls on a non-release day, the offender ceases to be subject to detention conditions on the nearest preceding day that is not a non-release day. "80Z When detention conditions suspended The detention conditions of an offender serving a sentence of home detention are suspended during any period that the offender spends in custody under a court order (for example, on remand), but time continues to run during any period that they are suspended. "80ZA Time ceases to run in certain circumstances For the purpose of calculating how much time an offender who is subject to a sentence of home detention has served, time ceases to run on the sentence during any period--- "(a) between the date on which an application for a variation or cancellation of the sentence under section 80F(1)(a) is lodged and the earlier of--- "(i) the date on which the offender is next taken into custody; and "(ii) the date on which the offender resumes serving his or her sentence in accordance with his or her detention conditions; or "(b) in which an offender is released on bail pending an appeal. Struck out (majority) ======================================================================= "80ZB Period between quashed sentence and new sentence does not count as time served "(1) Subsection (2) applies if--- "(a) a sentence of home detention is imposed on the conviction of an offender; and "(b) that conviction is subsequently quashed and a new hearing or a new trial is ordered; and "(c) following a new hearing or a new trial, the offender is again convicted and a new sentence of home detention is imposed on the offender. "(2) In the situation described in subsection (1), the period commencing on the quashing of the first sentence and the imposition of the new sentence does not count as time served under the new sentence. ======================================================================= "80ZC Order must be drawn up "(1) If a court imposes a sentence of home detention on an offender, the particulars of the sentence must be drawn up in the form of an order. "(2) A copy of the order must be given to the offender before he or she leaves the court wherever practicable. "(3) The order must include information regarding--- "(a) the nature of the sentence; and "(b) the start date and the {detention end date} [term] of the sentence; and "(c) the detention conditions that apply to the offender while he or she is serving the sentence {and the date those conditions expire}; and "(d) the post-detention conditions (if any) that apply {and the date those conditions expire} [and the period for which those conditions apply]; and "(e) the obligations to comply with the instructions of a probation officer and the terms of the sentence; and "(f) the consequences of non-compliance with the terms of the sentence; and "(g) the statutory provisions under which the sentence may be varied or cancelled. "(4) For the purposes of subsection (1), a court may direct that the offender be detained in the custody of the court for a period, not exceeding 2 hours, that may be necessary to enable the order to be drawn up and a copy given to the offender. "(5) If it is not practicable to give a copy of the order to the offender before the offender leaves the court, a copy must be given to the offender in person as soon as practicable after the offender leaves the court. "(6) A copy of the order must be given to the chief executive of the Department of Corrections as soon as possible, but no later than 24 hours after it has been drawn up. "80ZD Offender must keep copy of order in his or her possession, etc Struck out (majority) ======================================================================= "(1) The offender must keep in his or her possession the copy of the order given to the offender under section 80ZC and must produce the order for inspection if requested to do so by a member of the police or a probation officer. ======================================================================= "(2) If an offender's detention conditions or post-detention conditions are varied or discharged, the offender must be given a new or amended order that shows the conditions as varied or discharged, and the provisions of this section and section 80ZC apply. "80ZE Home detention does not affect entitlements under Social Security Act 1964 The fact that a person is serving a sentence of home detention does not, of itself, affect any entitlement the person may have under the Social Security Act 1964. New (majority) ----------------------------------------------------------------------- "80ZEA Application of Injury Prevention, Rehabilitation, and Compensation Act 2001 to persons serving home detention sentence When an offender performs any service or does any work or attends any assessment, course, or programme for the purposes of a home detention sentence, the following provisions apply: "(a) if the offender suffers any personal injury for which he or she has cover under the Injury Prevention, Rehabilitation, and Compensation Act 2001 arising out of and in the course of performing the activities described above,--- "(i) the personal injury is deemed, for the purposes of section 97 of that Act only, to be a work-related personal injury; and "(ii) the Crown is liable to pay compensation to which the offender is entitled under that section: "(b) the cost of all other entitlements of the offender under that Act must be met from the Earners' Account in the case of an offender who is an earner and from the Non-Earners' Account in all other cases. "80ZEB Effect of subsequent sentence of imprisonment "(1) This section applies if an offender who is subject to a sentence of home detention is subsequently sentenced to a term of imprisonment. "(2) If this section applies, the sentence of home detention is suspended until the earlier of the following events--- "(a) it resumes under subsection (4)(b); or "(b) it is cancelled under subsection (6). "(3) No period during which a sentence of home detention is suspended under subsection (2) is counted towards the period under section 80A(3). "(4) If the sentence or sentences of imprisonment are quashed and that results in the offender no longer being detained under a sentence of imprisonment,--- "(a) the offender must report to a probation officer as soon as practicable and not later than 72 hours after being released from detention; and "(b) the sentence of home detention resumes when the offender has reported as required under paragraph (a). "(5) The Registrar of the court in which the sentence or sentences of imprisonment are quashed must notify the chief executive of the Department of Corrections. "(6) If the sentence of home detention never resumes under subsection (4)(b), it is cancelled when the offender ceases to be detained under the sentence of imprisonment. "80ZEC Application of section 80F during epidemic "(1) While an epidemic management notice is in force,--- "(a) a probation officer who has applied for an order under section 80F(4) varying the special conditions subject to which a sentence of home detention was imposed by the court on an offender may himself or herself vary those conditions; and "(b) any probation officer may himself or herself vary the special conditions subject to which a sentence of home detention was imposed by the court on an offender if the offender has applied for an order under section 80F(4) varying those conditions; and "(c) a probation officer may vary or suspend any standard conditions of a sentence of home detention. "(2) A variation under subsection (1)(a) or (b) has effect until the application concerned has been heard and disposed of. "(3) Any variation or suspension of a standard condition under subsection (1)(c) has effect until the earlier of--- "(a) the revocation of the epidemic management notice; or "(b) the date a probation officer rescinds the variation or suspension. "80ZED Application of section 80Q during epidemic "(1) While an epidemic management notice is in force,--- "(a) a probation officer who has applied for an order under section 80Q(3) varying the post-detention conditions subject to which a sentence of home detention was imposed by the court on an offender may himself or herself vary those conditions; and "(b) any probation officer may himself or herself vary the post-detention conditions subject to which a sentence of home detention was imposed by the court on an offender if the offender has applied for an order under section 80Q(3) varying those conditions. "(2) Any variation under subsection (1) has effect until the earlier of--- "(a) the revocation of the epidemic management notice; or "(b) the date on which a probation officer rescinds the variation or suspension. ----------------------------------------------------------------------- "Subpart 2B---Judicial monitoring "80ZF Progress reports "(1) If the court has imposed a sentence of intensive supervision or home detention and a special condition of that sentence is that the offender be subject to judicial monitoring, the probation officer supervising the offender must give a written progress report to the Judge who sentenced the offender {(the sentencing Judge)} [or to any other District Court Judge if for any reason it is impracticable for the sentencing Judge to be given the report]. "(2) The progress report must be given to the {sentencing} Judge within 3 months of the date that the sentence commenced under section 75 or 80W (whichever is applicable) or the date at which the offender has served one-third of his or her sentence, whichever is the earlier. "(3) The progress report--- "(a) must contain information on the offender's progress and compliance with the sentence; and "(b) may contain any other information that the probation officer considers relevant to the sentence. "(4) The probation officer must prepare and give the {sentencing} Judge further progress reports {every 3 months until the sentence is completed unless otherwise directed by the Judge} [at specified intervals of not less than 3 months if directed to do so by the Judge]. "80ZG Consideration of progress reports After considering a progress report, the {sentencing} Judge may order that the offender attend before him or her if the Judge considers it desirable for the administration of the sentence or for the rehabilitation or reintegration of the offender. "80ZH Procedure "(1) A copy of an order under section 80ZG must be given to the offender and the probation officer who filed the progress report. "(2) The order must be accompanied by a notice setting out the time and place of{, and the reason for,} the attendance. "80ZI Procedure if possible grounds for variation or cancellation of sentence exist "(1) If, after hearing from the offender and the probation officer, the {sentencing} Judge considers that there may be grounds for variation or cancellation of the sentence of intensive supervision or home detention, he or she may request submissions on whether the sentence should be varied or cancelled. "(2) If the {sentencing} Judge requests further submissions under subsection (1), he or she must set the matter down for a hearing. "(3) After hearing submissions on whether the sentence should be varied or cancelled at the hearing, the {sentencing} Judge may vary or cancel the sentence of intensive supervision or home detention in accordance with section 54{J} [K] or 80F (whichever is applicable) as if an application had been made under either of those sections." 66 New section 81A inserted The following section is inserted after section 81: "81A Manner of expression of sentence of imprisonment "(1) This section applies if a court sentences an offender to a determinate sentence of imprisonment {of more than 12 months for a particular offence} [that is a long-term sentence as defined in section 4(1) of the Parole Act 2002]. "(2) The court must, in addition to stating the term of the sentence imposed, state the minimum period of the sentence that the offender must serve under section 84 of the Parole Act 2002 before he or she may be released on parole at the discretion of the Parole Board." 67 Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment Section 86 and the heading above section 86 are repealed. 68 Offender must be notified that sentence of preventive detention will be considered, and reports must be obtained Section 88 is amended by adding the following subsection: "(3) To avoid doubt, a health assessor's report under subsection (1)(b) may take into account any statement of the offender or any other person concerning any conduct of the offender, whether or not that conduct constitutes an offence and whether or not the offender has been charged with, or convicted of, an offence in respect of that conduct." New (unanimous) ----------------------------------------------------------------------- 68A Warrant of commitment for sentence of imprisonment Section 91 is amended by repealing subsections (4) and (5). ----------------------------------------------------------------------- 69 Imposition of conditions on release of offender sentenced to imprisonment for short term (1) Section 93(1) is amended by omitting "12 months" and substituting "6 months". (2) Section 93(2) is amended by omitting "12 months but not more than 24 months" and substituting "6 months but not more than 12 months". (3) Section 93 is amended by repealing subsection 2A and substituting the following subsections: "(2A) The court may specify that any standard conditions or special conditions expire on the date that is a specified period of up to 12 months but no less than 6 months after the sentence expiry date. "(2AA) If the court imposes special conditions on an offender, the special conditions may apply for as long as, but no longer than, the standard conditions apply to the offender. (4) The definition of special conditions in section 93(2B) is amended by omitting "of that Act" and substituting "or a residential restriction condition as referred to in section 15(3)(ab)". New (unanimous) ----------------------------------------------------------------------- (5) Section 93(5) is amended by omitting "24 months" and substituting "12 months". ----------------------------------------------------------------------- 70 [Heading and] sections 97 to 99 repealed [The heading above section 97 and] sections 97, 98, and 99 are repealed. 71 Court may defer start date of sentence of imprisonment Section 100(1)(b) and (2) are repealed. 72 Non-association order Section 112(5) is amended by omitting "24 months" and substituting "12 months". 73 Cumulative orders and sentences Section 114(2) is amended by omitting "24 months or less" and substituting "12 months or less". 74 Effect of subsequent sentences on non-association order Section 119 is amended by omitting "24 months" in each place where it appears and substituting in each case "12 months". Transitional provisions 75 Transitional arrangements for intensive supervision If an offender is convicted of an offence committed before the commencement of this Part, the court may sentence the offender to intensive supervision if--- (a) the court would have had the power to sentence the offender to supervision if it were dealing with the offence immediately before that date; and (b) the requirements of sections 54A and 54B of the principal Act are satisfied; and (c) the offender consents to the imposition of intensive supervision. 76 Transitional arrangements for community detention If an offender is convicted of an offence committed before the commencement of this Part, the court may sentence the offender to community detention if--- (a) the court would have had the power to sentence the offender to a community-based sentence if it were dealing with the offence immediately before that date; and (b) the requirements of sections 69A and 69B of the principal Act are satisfied; and (c) the offender consents to the imposition of community detention. 77 Transitional arrangements for home detention If an offender is convicted of an offence committed before the commencement of this Part, the court may sentence the offender to home detention if--- (a) the court would have had the power to sentence the offender to imprisonment if it were dealing with the offence immediately before that date; and (b) the requirements of section 80A of the principal Act are satisfied; and (c) the offender consents to the imposition of home detention. 78 Amendments to other enactments The enactments listed in Schedule 3 are amended in the manner set out in that schedule. Subpart 3---Amendments to Parole Act 2002 79 Principal Act amended This subpart amends the Parole Act 2002. 80 Interpretation (1) Section 4(1) is amended by inserting the following definitions in their appropriate alphabetical order: "initial period means the period that commenced on 30 June 2002 and ended with the close of the day that is immediately before the commencement of section {140} [120] of the Criminal Justice Reform Act 2006 "parole guidelines means parole guidelines made by the Sentencing Council under the Sentencing Council Act 2007 "residential restrictions means the special conditions described in section 33 "standard extended supervision conditions means the standard extended supervision conditions set out in section 107JA". (2) Section 4(1) is amended by repealing the definitions of long-term sentence and short-term sentence and substituting the following definitions: "long-term sentence means a sentence of imprisonment that is--- "(a) a determinate sentence, whenever imposed, that is longer than 12 months (subject to subsection (3)); or "(b) an indeterminate sentence, whenever imposed; or "(c) a notional single sentence that is longer than 12 months (subject to subsection (3)) "short-term sentence means a sentence of imprisonment that is--- "(a) a determinate sentence, whenever imposed, of 12 months or less (subject to subsection (3)); or "(b) a notional single sentence of 12 months or less (subject to subsection (3))". (3) Section 4(1) is amended by repealing the definitions of detention conditions, home detention, and standard detention conditions. (4) The definition of special conditions in section 4(1) is amended by adding ", and includes residential restrictions". (5) The definition of variation in section 4(1) is amended by omitting "or detention conditions". (6) Section 4 is amended by adding the following subsections: "(3) For the purpose only of classifying a sentence (including a notional single sentence) in terms of the definitions of long-term sentence or short-term sentence, the length of every determinate sentence imposed in the initial period is deemed to be reduced by one half. "(4) To avoid any doubt, subsection (3) is limited to the purpose stated in that subsection and does not otherwise affect the length of the sentence." 81 Overview of release (1) Section 6 is amended by repealing subsection (3) and substituting the following subsection: "(3) This subpart provides for 2 types of early release from a prison--- "(a) parole: "(b) compassionate release." (2) Section 6(5) is repealed. 82 Guiding principles (1) Section 7(2)(a) is amended by omitting "or detention conditions". New (unanimous) ----------------------------------------------------------------------- (2) Section 7(2)(b) is amended by inserting ", subject to any of sections 13 to 13AE," after "must". ----------------------------------------------------------------------- 83 Part applies to all offenders (1) Section 8(1)(c) is amended by omitting "or for home detention". (2) Section 8(1)(d) is amended by omitting "or home detention,". New (majority) ----------------------------------------------------------------------- 83A General rules about information to be given to offenders Section 13 is amended by inserting the following subsection after subsection (5): "(5A) Subsection (1) does not apply to any information that may not be disclosed under a confidentiality order made under section 13AB." ----------------------------------------------------------------------- New (majority) ----------------------------------------------------------------------- 83B New sections 13AA to 13AE inserted The following sections are inserted after section 13: "13AA Application for confidentiality order "(1) The Commissioner of Police or the chief executive of the Department of Corrections may apply to the chairperson or to a panel convenor for an order under section 13AB (in this section and in sections 13AB to 13AE called a confidentiality order). "(2) Despite any other enactment, the power conferred by subsection (1) may not be delegated. "(3) Every application under subsection (1) must be supported by an affidavit sworn by the applicant. "13AB Making of confidentiality order "(1) The chairperson or a panel convenor may make a confidentiality order if satisfied--- "(a) that the information for which confidentiality is sought is relevant to a current matter concerning an offender; and "(b) that disclosure of the information may--- "(i) endanger the safety of the person who is the source of the information or of any other person; or "(ii) prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial. "(2) The order must identify the information that is to be kept confidential, and may do so by reference to 1 or more documents. "(3) The order may--- "(a) forbid the disclosure or publication of the information to any person other than--- "(i) the members of the Board involved in considering and determining the current matter; and "(ii) any officials specified in the order by name or position, being officials who require access to the information to perform their functions in relation to the Board's determination of the current matter or the implementation of that determination: "(b) forbid the disclosure or publication (other than to the persons mentioned in paragraph (a)) of any particulars that identify, or may lead to the identification of, any person who is the source of the information: "(c) require the members of the Board involved in considering and determining the current matter to receive the information in the absence of any person other than--- "(i) any officials who are permitted access to the information under paragraph (a)(ii) and whose presence the members consider necessary; and "(ii) if the members receive the oral evidence of the person who is the source of the information, that person. "(4) To avoid doubt, anything that may not be disclosed or published under a confidentiality order may not be disclosed--- "(a) to the offender; or "(b) to the offender's counsel or other representative of the offender. "(5) The chairperson or the panel convenor who makes the confidentiality order must give the order and the information to which it relates to the members of the Board who will determine the current matter. "(6) In this section and in section 13AC, current matter, in relation to an offender, means a matter concerning the offender that is before the Board or is expected to come before the Board. "13AC Effect of confidentiality order "(1) A person commits an offence, and is liable on summary conviction to a fine not exceeding $10,000, or to imprisonment for a term not exceeding 3 months, or to both, who intentionally contravenes a confidentiality order. "(2) Despite any other enactment, the Board may hear a person whose identity may not be disclosed under a confidentiality order only if it is satisfied that procedures are in place to ensure that the hearing will not result in the disclosure of the person's identity to any person who is not, in terms of the order, permitted to have access to that information. "(3) In any court proceeding that relates to the confidentiality order or to the related current matter, a person whose identity may not be disclosed under a confidentiality order has a privilege in information that discloses, or may lead to the disclosure of, the person's identity. "(4) This section has effect despite anything in section 13, section 65, the Official Information Act 1982, or the Privacy Act 1993. "13AD If confidentiality order not made "(1) If the chairperson or a panel convenor refuses to make a confidentiality order, he or she--- "(a) must return to the applicant all documents constituting or relating to the application for the order; and "(b) must not disclose to any person, or give any person access to, any matter relating to the application. "(2) This section has effect despite anything in section 13, section 65, the Official Information Act 1982, or the Privacy Act 1993. "13AE Variation or rescission of confidentiality order The chairperson or a panel convenor may, on the application of the person who applied for a confidentiality order or on the application of that person's successor in office, vary or rescind the order if satisfied that, because of a change in circumstances, the variation is necessary or, as the case requires, the order is no longer necessary." ----------------------------------------------------------------------- 84 Standard release conditions (1) Section 14(2) is repealed. New (unanimous) ----------------------------------------------------------------------- (2) Section 14(3) is amended by inserting ", sentences of home detention (including post-detention conditions)," after "community based sentences,". ----------------------------------------------------------------------- 85 Special conditions (1) Section 15(1) is amended by omitting ", or if the standard detention conditions apply to the offender". (2) Section 15(3) is amended by inserting the following paragraph after paragraph (a): "(ab) residential restrictions:". 86 Electronic monitoring (1) Section 15A(1) is amended by omitting "(whether imposed as a special condition under section 15 or as a standard detention condition under section 36)" and substituting "imposed under section 15(3)(f)". (2) Section 15A(2)(a) is amended by omitting ", detention conditions,". (3) Section 15A(4) is amended by repealing paragraph (c) and substituting the following paragraph: "(c) the percentage of offenders who, while subject to an electronic monitoring condition attaching to an extended supervision order, were--- "(i) convicted for a breach of the condition; or "(ii) convicted of any other offence." 87 Release at statutory release date Section 17(2) is amended by omitting "or who is on home detention". 88 Conditions applying to release at statutory release date Section 18 is amended by inserting the following subsection before subsection (2A): "(2AA) Despite subsection (2)(a), if the Board imposes any special conditions on the offender that the Board considers incompatible with all or any of the standard release conditions, the Board may suspend the incompatible standard release conditions during the period in which those special conditions are in force, and time runs on the suspended conditions during that period." 89 New section 23 substituted Section 23 is repealed and the following section substituted: "23 No consideration for parole of offenders on compassionate release An offender who is released on compassionate release may not be considered for parole by the Board." 90 Early referral and consideration for parole (1) Section 25(1) is amended by omitting "exceptional circumstances" and substituting "special circumstances relating to the offender". (2) Section 25(5)(b) is amended by inserting "(as that section was in force in the initial period)" after "section 86". New (unanimous) ----------------------------------------------------------------------- 90A Direction for release on parole Section 28 is amended by inserting the following subsection before subsection (1): "(1AA) In deciding whether or not to release an offender on parole, the Board must bear in mind that the offender has no entitlement to be released on parole and, in particular, that neither the offender's eligibility for release on parole nor anything else in this Act or any other enactment confers such an entitlement." ----------------------------------------------------------------------- 91 New section 29 substituted Section 29 is repealed and the following section substituted: "29 Release conditions applying to parole "(1) In releasing an offender on parole, the Board--- "(a) must impose the standard release conditions on the offender; and "(b) may impose any special conditions on that offender that the Board specifies. "(2) Despite subsection (1)(a), if the Board imposes any special conditions on the offender that the Board considers incompatible with all or any of the standard release conditions, the Board may suspend the incompatible standard release conditions during the period in which those special conditions are in force, and time runs on the suspended conditions during that period. "(3) The standard release conditions imposed on an offender are in force--- "(a) in the case of an offender who is subject to 1 or more determinate sentences, for the period that the Board specifies; and "(b) in the case of an offender who is subject to an indeterminate sentence, for the rest of the offender's life. "(4) The period that the Board specifies under subsection (3)(a) may not be less than 6 months and may not extend for more than 6 months after the offender's statutory release date. "(5) If the Board imposes special conditions on an offender, the special conditions are in force for the period that the Board specifies for the conditions. "(6) Special conditions imposed on an offender who is subject to 1 or more determinate sentences may not be in force for a longer period than the offender's standard release conditions." 92 New sections 29A and 29B inserted The following sections are inserted after section 29: "29A Release conditions for person to whom extended supervision order applies The Board, when directing the release on parole of an offender in respect of whom an extended supervision order is made must--- "(a) take into account, when setting any special conditions, the nature of the conditions to which the offender will be subject under the extended supervision order, when those conditions are reactivated under section 107P(2) on his or her statutory release date; and "(b) direct that the release conditions imposed last until the offender's statutory release date. "29B Board may monitor compliance with conditions "(1) If the Board is satisfied that, because of the special circumstances of an offender (other than an offender subject to an extended supervision order), it is desirable for the Board to do so, the Board may determine to monitor, during the specified period, the offender's compliance with the release conditions imposed on the offender. "(2) In monitoring the conditions, the Board may on each occasion do either or both of the following: "(a) ask the Department of Corrections for a progress report on the offender's compliance with the conditions: "(b) require the offender to attend a hearing notified to the offender in writing. "(3) Each power specified in subsection (2) may be exercised on 1 or more occasions during the specified period, but may not be exercised more frequently than at 3-monthly intervals. "(4) A hearing that an offender is required to attend under subsection (2)(b)--- "(a) is a special condition imposed on the offender; and "(b) is conducted in accordance with any directions given by the Board, including, without limitation, that the offender attend otherwise than in person (for instance, by telephone or video link); and "(c) is not subject to sections 43 to 50; but "(d) is subject to section 13 (which is about the information to be given to[, or withheld from,] the offender). "(5) At a hearing that an offender is required to attend under subsection (2)(b), the Board may, if it considers it appropriate to do so, take 1 or more of the following actions: "(a) vary any special conditions previously imposed on the offender: "(b) impose new special conditions on the offender: "(c) if the offender is on parole or compassionate release, and if the Board is satisfied of the matters stated in section 62, make an order in respect of the offender that has the same effect as an interim recall order under that section. "(6) Sections 57 and 58 apply, with any necessary modifications, to any action taken under subsection (5)(a) or (b). "(7) In this section, specified period, in relation to an offender released from detention, means a period of--- "(a) 12 months from the date of release, if the offender is released on parole or compassionate release: "(b) 6 months from the date of release, if the offender is released at the statutory release date." 93 New heading and sections 33 to 35 substituted (1) The heading above section 33 is repealed, and the following heading substituted: "Residential restrictions". (2) Sections 33 to 37 are repealed and the following sections substituted: "33 Residential restrictions "(1) The Board may impose on an offender the special conditions referred to in section 15(3)(ab) (residential restrictions) if the residence in which it is proposed that the offender reside is in an area in which a residential restriction scheme is operated by the chief executive of the Department of Corrections. "(2) An offender on whom residential restrictions are imposed is required--- "(a) to stay at a specified residence; and "(b) to be under the supervision of a probation officer and to co-operate with, and comply with any lawful direction given by, that probation officer: "(c) to be at the residence--- "(i) at times specified by the Board; or "(ii) at all times: "(d) to submit, in accordance with the directions of a probation officer, to the electronic monitoring of compliance with his or her residential restrictions: "(e) to keep in his or her possession the licence issued under section 53(3) and, if requested to do so by a member of the police or a probation officer, must produce the licence for inspection. "(3) Any conditions imposed under subsection (2)(c)(ii) may not be imposed for longer than the shortest of the following periods: "(a) the period for which the standard release conditions apply: "(b) 12 months: "(c) if those conditions have previously been imposed on the offender in respect of the same release from detention, 12 months less the time for which those conditions have previously been imposed. "(4) An offender may, despite any conditions imposed under subsection (2)(c), leave the residence to which the residential restrictions relate--- "(a) to seek urgent medical or dental treatment; or "(b) to avoid or minimise a serious risk of death or injury to the offender or any other person; or New (unanimous) ----------------------------------------------------------------------- "(c) for humanitarian reasons approved by a probation officer. ----------------------------------------------------------------------- "(5) In any case where the conditions are of the kind specified in subsection (2)(c)(ii), the offender may, with the approval of a probation officer, leave the residence to which the residential restrictions relate--- New (unanimous) ----------------------------------------------------------------------- "(aa) to comply with any special conditions; or ----------------------------------------------------------------------- "(a) to seek or engage in employment; or "(b) to attend training or other rehabilitative or reintegrative activities or programmes; or "(c) to attend a restorative justice conference or other process relating to the offender's offending; or "(d) to carry out any undertaking arising from any restorative justice process; or "(e) for any other purpose specifically approved by the probation officer. "34 Prior report on suitability of residential restrictions "(1) Before the Board imposes residential restrictions on an offender, the Board must consider a report from a probation officer on the matters specified in subsection (2). "(2) The matters are as follows: "(a) the nature of the offence or offences for which the offender [is currently serving a sentence of imprisonment or] has previously been convicted: "(b) the likelihood that the residential restrictions will prevent further offending on the part of the offender: "(c) the likelihood that the offender's rehabilitation and reintegration will be assisted by residential restrictions: "(d) the suitability of the proposed residence, including the safety and welfare of the occupants of the residence where the offender is to reside. "(3) Before completing the report requested under subsection (1), the probation officer must--- "(a) ensure that every relevant occupant of the residence where it is proposed that the offender reside is aware of the nature of the offender's past and current offending; and "(b) tell every relevant occupant that the reason for giving that information is to enable the occupant to make an informed decision about whether to consent to having the offender reside at the residence; and "(c) tell every relevant occupant that the information provided about the offender must not be used for any purpose other than that described in paragraph (b); and "(d) obtain the consent of every relevant occupant to having the offender reside at the residence. "(4) In subsection (3), relevant occupant means, in relation to a residence that the probation officer is considering as a suitable residence for an offender subject to residential restrictions,--- "(a) in the case of a {private} [family] residence, every person of or over the age of 16 who ordinarily lives there; and "(b) in the case of any other residence, every person whom the probation officer identifies as being a relevant occupant for the purpose of subsection (3). "35 Residential restrictions {in respect of residence not} [only] to be imposed {without consent of occupants} [if residence suitable and occupants consent] The Board may impose residential restrictions only if satisfied on reasonable grounds that--- New (unanimous) ----------------------------------------------------------------------- "(aa) the residence in which it is proposed that the offender reside is suitable; and ----------------------------------------------------------------------- "(a) the relevant occupants (as defined in section 34(4)) of the residence in which the offender will reside--- "(i) understand the residential restrictions that will apply to the offender; and "(ii) consent to the offender residing in the residence in accordance with those conditions; and "(b) the offender has been made aware of and understands the residential restrictions, and he or she agrees to comply with them." 94 New section 38 substituted Sections 38 to {40} [40A] are repealed and the following section is substituted: "38 Residential restrictions do not affect entitlements under Social Security Act 1964 The fact that a person is subject to residential restrictions does not, of itself, affect any entitlement the person may have under the Social Security Act 1964." 95 Application of procedures set out in sections 43 to 50 Section 42 is amended by omitting from paragraph (b) "; or" and also by repealing paragraph (c). 96 Start of process (1) Section 43(1) is amended by omitting "or home detention" and also by repealing paragraph (d). (2) Section 43(2)(d) is repealed. (3) Section 43 is amended by repealing subsection (3) and substituting the following subsection: "(3) Any victim who is notified by the Board must be informed--- "(a) that the victim may request information from the Department of Corrections on the offender under section 44; and "(b) that the victim may be invited to present oral submissions to the Board if the victim's written submissions or other material, whether or not supplied by the victim, are relevant to either or both of the following matters: "(i) whether the release of the offender poses an undue risk to the safety of the community or any person or any class of person: "(ii) ways of managing any risks posed to the safety of the community or any person or class of person by the release of the offender: "(c) about the hearing process and how the victim may, if invited to make oral submissions, participate in that process." 97 Information for victims (1) Section 44 is amended by omitting "section 43(3)" and substituting "section 43(3)(a)". (2) Section 44(d) is repealed. 98 Decision on type of hearing Section 45 is amended by repealing subsection (7) and substituting the following subsection: "(7) Notification under subsection (5) or (6) must include,--- "(a) if the hearing is to be an unattended one,--- "(i) a summary of the reasons for deciding that the hearing will be unattended; and "(ii) advice to the offender on the offender's right to an interview under section 47; and "(iii) advice to the offender on the offender's right to seek a review under section 46; and "(b) if the hearing is to be an attended one,--- "(i) notice of the date of the hearing and relevant information about the rights of people attending; and "(ii) notice to each victim on whether or not the victim has been invited to make oral submissions to the Board; and "(iii) if the victim has not been invited to make oral submissions to the Board, advice of the victim's right to seek a review under section 48B." 99 Review of decision on type of hearing (1) Section 46 is amended by repealing subsections (1) and (2) and substituting the following subsections: "(1) An offender who has been notified, under section 45(5), of the decision that the hearing will be unattended may seek a review of the decision by writing to the Board within 10 days of the date of the notice. "(2) A panel convenor other than the one allocated to conduct the particular hearing must review the decision as soon as practicable." (2) Section 46(5) is amended by omitting "person" and substituting "offender". 100 New section 47 substituted Section 47 is repealed and the following section substituted: "47 Interviews of offender before hearings "(1) If a hearing is to be an unattended hearing, the offender must be given an opportunity to have an interview before the hearing with 1 member of the panel allocated to conduct the hearing. "(2) The member conducting the interview may conduct the interview at whatever place and in whatever manner he or she considers appropriate (subject to subsection (3)). "(3) The offender may have a support person with him or her, and the support person may, with the consent of the offender and the permission of the member conducting the interview, speak in support of the offender." 101 New sections 48A and 48B inserted The following sections are inserted after section 48: "48A Victims may be invited to make oral submissions "(1) A panel convenor may invite a victim of an offender to present oral submissions to the Board at a hearing if the panel convenor considers, based on the victim's written submissions or other material, whether or not supplied by the victim, that the victim's oral submissions may be relevant to either or both of the following matters: "(a) whether the release of the offender poses an undue risk to the safety of the community or any person or any class of person: "(b) ways of managing any risks posed to the safety of the community or any person or class of person by the release of the offender. "(2) If a victim is invited under subsection (1), the Board must hold an attended hearing and must, unless it has previously done so, fix a time for that hearing and notify the people referred to in section 45(5) accordingly. "(3) The panel convenor who is allocated to conduct the hearing may decide, at the request of the victim or on the convenor's own initiative, that the victim is to present the victim's oral submissions at an interview with a member of the panel rather than at the attended hearing. "(4) Whenever a victim is to present oral submissions at an interview, the Board must notify the victim of the time and place of the interview. "(5) At the interview, the victim may have a support person with him or her, and the support person may, with the consent of the victim and the permission of the member conducting the interview, speak on behalf of the victim. "(6) If there are special circumstances, and with the consent of the victim and the prior written approval of the Board, the victim may be represented at the interview by another person who must attend the interview in place of the victim. "(7) The member conducting the interview must report to the panel on the oral submissions presented by the victim at the interview. "48B Review of decision not to invite victim to make oral submissions "(1) A victim who has been notified, under section 45(5), that the victim will not be invited to present oral submissions may seek a review of the decision by writing to the Board within 10 days of the date of the notice. "(2) A panel convenor other than the one allocated to conduct the particular hearing must review the decision as soon as practicable. "(3) Following a review, the convenor may confirm the decision or determine that the victim may present oral submissions. "(4) If, as a result of the review, the hearing is to be an attended hearing, the Board must fix a time for the attended hearing and notify the people referred to in section 45(5) accordingly." 102 Attended hearing Section 49(4) is amended by inserting "who has been invited, under section 48A, to present oral submissions to the Board (and who is not to present those submissions at an interview)" after "Every victim of the offender". 103 Decisions must be notified (1) Section 50(1)(a) is amended by omitting "or to commence home detention". (2) Section 50 is amended by omitting "or detention" in each place where it appears. 104 Submissions from, and interviews with, certain victims Section 50A is amended by repealing subsections (2) and (3) and substituting the following subsections: "(2) The person may, by writing to the Board, make submissions on, or give information relevant to, the substantive matter to be decided at a hearing referred to in section 42. "(3) The panel convenor may invite the person to present oral submissions to the Board if the panel convenor considers, on the basis of the victim's written submissions or other material, that the victim's oral submissions {are likely to} [may] be relevant to either or both of the following matters: "(a) whether the release of the offender poses an undue risk to the safety of the community or any person or any class of person: "(b) ways of managing any risks posed to the safety of the community or any person or class of person by the release of the offender. "(3A) If the person is invited to present oral submissions, the panel convenor who is allocated to conduct the hearing may decide, at the request of the person or on the convenor's own initiative, that the person is to present the victim's oral submissions at an interview with a member of the panel, and if--- "(a) the panel convenor makes that decision, section 48A(2) to {(5)} [(7)] applies in respect of the person; and "(b) the panel convenor does not make that decision, the person--- "(i) may make oral submissions to the Board, in accordance with section 49(4); and "(ii) must be notified of the relevant hearing date and be given any information about the procedure for the hearing that the person is likely to need to present those submissions." 105 Decisions to be notified to certain victims (1) Section 50B(1)(a) is amended by omitting "50A(2)(a)" and substituting "50A(2)". (2) Section 50B(1)(b) is amended by omitting "50A(2)(b)" and substituting "50A(3A)(a)". (3) Section 50B(1)(c) is amended by omitting "50A(2)(c)" and substituting "50A(3A)(b)". (4) Section 50B(2) is amended by omitting "or detention". 106 Date of release Section 51(3) is amended by omitting ", or to start home detention,". 107 Release of offenders released at statutory release date Section 52(1) is amended by omitting "or from home detention". 108 Licence issued on release (1) Section 53(1) is amended by omitting "or from home detention". (2) Section 53(1)(a) is amended by omitting "(if any)". (3) Section 53 is amended by repealing subsection (3) and substituting the following subsection: "(3) An offender subject to residential restrictions must, before the restrictions come into force, be issued with a licence that sets out--- "(a) the residential restrictions; and "(b) the date or dates on which they, or any of them, come into force and cease to be in force; and "(c) the obligations to comply with the directions given by a probation officer; and "(d) the consequences of non-compliance with the conditions; and "(e) the statutory provisions under which the conditions may be varied or discharged." (4) Section 53(4) is amended by omitting "or detention conditions". 109 New section 54 substituted Section 54 is repealed and the following section substituted: Struck out (unanimous) ======================================================================= "54 Police must be advised "(1) When an offender is released from detention in a prison or ceases to be subject to residential restrictions imposed under section 33(2)(c)(ii) of this Act, the chief executive must advise the police of--- "(a) the date on which the offender is released or on which the conditions cease to be in force; and "(b) any release conditions of the offender; and "(c) the offender's statutory release date. "(2) Before an offender becomes subject to residential restrictions imposed under section 33(2)(c)(ii) of this Act, the chief executive must advise the police of--- "(a) the date on which the sentence starts or the restrictions come into force; and "(b) the conditions of the sentence or the nature of the restrictions; and "(c) the date on which the sentence ends or the residential restrictions cease to be in force. ======================================================================= New (unanimous) ----------------------------------------------------------------------- "54 Police must be advised "(1) Before an offender is released from detention in a prison, the chief executive must advise the police of--- "(a) the date on which the offender is to be released; and "(b) the offender's release conditions; and "(c) the offender's statutory release date. "(2) Before an offender becomes subject to residential restrictions, the chief executive must advise the police of the date on which the restrictions commence and the date on which they cease to apply." ----------------------------------------------------------------------- 110 Application for variation or discharge of conditions (1) Section 56(1) is amended by omitting "or detention conditions". (2) Section 56(2) is amended by omitting "or detention condition". New (unanimous) ----------------------------------------------------------------------- 110AA Application of section 56 during epidemic Section 56A is amended by omitting "or detention condition". ----------------------------------------------------------------------- New (unanimous) ----------------------------------------------------------------------- 110A Procedure for determining applications Section 57(2) is amended by inserting ", or withheld from," after "to be given to". ----------------------------------------------------------------------- 111 Board determines application for variation or discharge (1) Section 58(1) is amended by omitting "or detention condition". (2) Section 58(2)(b) is amended by omitting "or detention". 112 Making recall application (1) Section 60(2)(c) is amended by omitting ", home detention,". New (unanimous) ----------------------------------------------------------------------- (1A) Section 60 is amended by inserting the following subsection after subsection (2): "(2A) The Commissioner of Police may make a recall application in respect of any offender described in subsection (1) or (2) on the ground stated in section 61(a)." ----------------------------------------------------------------------- (2) Section 60 is amended by repealing subsection (4) and substituting the following subsection: "(4) When a recall application is made, the sentence to which the application relates ceases to run, except for the period (if any) between the lodgement of the application and the date of its determination during which the offender is under legal custody in accordance with the Corrections Act 2004." 113 Grounds for recall (1) Section 61(b) is amended by omitting "or detention conditions". New (unanimous) ----------------------------------------------------------------------- (1A) Section 61(c) is amended by inserting ", whether or not this has resulted in a conviction" after "imprisonment". ----------------------------------------------------------------------- (2) Section 61 is amended by repealing paragraph (d) and substituting the following paragraph: "(d) in the case of an offender who is subject to residential restrictions,--- "(i) the offender is jeopardising the safety of any person at his or her residence; or "(ii) a suitable residence in an area in which a residential restriction scheme is operated by the chief executive of the Department of Corrections is no longer available; or "(iii) the offender no longer wishes to be subject to residential restrictions; or". 114 Making interim recall order Section 62(1) is amended by repealing paragraph (c) and substituting the following paragraph: Struck out (unanimous) ======================================================================= "(c) in the case of an offender who is subject to residential restrictions, a suitable residence in an area in which a residential restriction scheme is operated by the chief executive of the Department of Corrections is no longer available. ======================================================================= New (unanimous) ----------------------------------------------------------------------- "(c) in the case of an offender who is subject to residential restrictions,--- "(i) a suitable residence in an area in which a residential restriction scheme is operated by the chief executive of the Department of Corrections is no longer available; or "(ii) the offender no longer wishes to be subject to residential restrictions." ----------------------------------------------------------------------- New (unanimous) ----------------------------------------------------------------------- 114A Procedure for determining recall applications Section 65(3) is amended by inserting ", or withheld from," after "to be given to". ----------------------------------------------------------------------- 115 Board may make final recall order Section 66(4)(b) is amended by omitting "or detention conditions". New (unanimous) ----------------------------------------------------------------------- 115A Review of decisions (1) Section 67(2) is amended by inserting the following paragraphs before paragraph (a): "(aa) a decision under section 13AB to make, or refuse to make, a confidentiality order; or "(aab) a decision under section 13AE to vary or rescind, or to refuse to vary or rescind, a confidentiality order; or". (2) Section 67(2) is amended by inserting the following paragraph after paragraph (b): "(ba) a review under section 48B of a decision not to invite a victim to make oral submissions; or". ----------------------------------------------------------------------- 116 Powers of court on appeal Section 70(2)(b)(ii) is amended by omitting "or standard detention". 117 Offence to breach conditions (1) Section 71(1) is amended by omitting "release conditions or detention conditions" and substituting "any standard release conditions or any special conditions". (2) Section 71(2) is amended by omitting ", home detention,". 118 New section 72 substituted Section 72 is repealed and the following section substituted: "72 Offence to refuse entry to residence specified under residential restrictions Struck out (unanimous) ======================================================================= "(1) This section applies to a residence (the residence) in which an offender is required to reside under residential restrictions. "(2) Every person present in a residence commits an offence, and is liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding $5,000, who refuses or fails, without reasonable excuse, to allow a probation officer who has identified himself or herself as such to enter into the residence if--- "(a) the offender is required to be in the residence at the time that the probation officer seeks entry; or "(b) the probation officer seeks entry to service or inspect any equipment used in the electronic monitoring of the offender's compliance with the residential restrictions (whether or not the offender is required to be in the residence at that time). ======================================================================= New (unanimous) ----------------------------------------------------------------------- "(1) This section applies to a residence (the residence) in which an offender is required to reside under residential restrictions. "(2) Every person commits an offence, and is liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding $5,000, who refuses or fails, without reasonable excuse, to allow a probation officer who has identified himself or herself to enter into the residence if the offender is required to be in the residence at the time that the probation officer seeks entry. "(3) Every person commits an offence, and is liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding $5,000, who refuses or fails, without reasonable excuse, to allow an authorised person to enter into the residence for the purpose of servicing or inspecting any equipment used in the electronic monitoring of the offender's compliance with the residential restrictions (whether or not the offender is required to be in the residence at that time). "(4) For the purposes of subsection (3), an authorised person is a person who--- "(a) is a probation officer and has identified himself or herself; or "(b) accompanies a person described in paragraph (a); or "(c) is authorised in writing by a probation officer and has produced that written authority to an occupant of the residence." ----------------------------------------------------------------------- 119 Arrest without warrant Section 73(2) is amended by omitting "or detention conditions". 120 Non-parole periods (1) Section 84 is amended by repealing subsections (1) and (2) and substituting the following subsections: "(1) The non-parole period of a long-term sentence (being a determinate sentence other than a notional single sentence or a sentence to which subsection (2) applies) is,--- "(a) if the sentence is imposed after the initial period, 12 months or two-thirds of the length of the sentence (whichever is longer): "(b) if the sentence is imposed in the initial period, one-third of the length of the sentence. "(2) The non-parole period of a sentence in respect of which the court has imposed a minimum term of imprisonment (whether under section 86 (as in force in the initial period), 89, or 103 of the Sentencing Act 2002) is the minimum term imposed." (2) Section 84(5) is amended by repealing paragraph (a) and substituting the following paragraph: "(a) every short-term sentence within the notional single sentence must be treated as if it had a non-parole period of--- "(i) two-thirds of its length, if the sentence is imposed after the initial period: "(ii) one-third of its length, if the sentence is imposed in the initial period; and". 121 New section 86 substituted Section 86 is repealed and the following section substituted: "86 Release date of sentence "(1) The release date of every determinate sentence, including every notional single sentence, is its sentence expiry date. "(2) For the purpose of applying subsection (1), the length of every short-term sentence imposed in the initial period (other than any such sentence imposed in that period that forms part of a notional single sentence that is a long-term sentence) is deemed to be reduced by one half. "(3) An indeterminate sentence does not have a release date. "(4) This section is subject to section 87." 122 Meaning of pre-sentence detention (1) Section 91(5) is amended by repealing paragraph (a) and substituting the following paragraph: "(a) under legal custody in accordance with the Corrections Act 2004. and serving a sentence of imprisonment; or". (2) Section 91 is amended by repealing subsection (6) and substituting the following subsection: "(6) In subsection (5)(a), serving a sentence of imprisonment includes time spent in a prison following an application for a recall order, but only if--- "(a) a final recall order is made following that application; and "(b) the offender was not, immediately before the application for the recall order was made, subject to conditions related to the offender's home detention under a direction of the Board given before the commencement of section 140 of the Criminal Justice Reform Act 2006 [or in accordance with that section], whether those conditions were suspended or not." Struck out (unanimous) ======================================================================= 123 Application of this Part to offenders subject to pre-cd sentences Section 97(1)(b) is amended by inserting "(as in force in the initial period)" after "section 35". ======================================================================= Struck out (unanimous) ======================================================================= 124 Time ceases to run in certain circumstances (1) Section 94(b) is amended by omitting "leave" and substituting "release". (2) Section 94(b) is amended by omitting "; and". (3) Section 94(c) is repealed. ======================================================================= New (unanimous) ----------------------------------------------------------------------- 123 Time ceases to run in certain circumstances (1) Section 94(b) is amended by omitting "leave" and substituting "release". (2) Section 94(b) is amended by omitting "; and". (3) Section 94(c) is repealed. ----------------------------------------------------------------------- New (unanimous) ----------------------------------------------------------------------- 124 Application of this Part to offenders subject to pre-cd sentences Section 97(1)(b) is amended by inserting "(as in force in the initial period)" after "section 35". ----------------------------------------------------------------------- 125 Variation and cancellation of final release dates Section 106(6) is amended by inserting "(directed by the Board before the commencement of section 140 of the Criminal Justice Reform Act 2006)" after "home detention". 126 Overview of Part Section 107A(c) is amended by omitting "standard release conditions" and substituting "standard extended supervision conditions". 127 Meaning of relevant offence (1) Section 107B(2) is amended by inserting the following paragraph after paragraph (o): "(oa) section 135 (indecent assault), but only if the victim of the offence was under the age of 16 at the time of the offence:". (2) Section 107B(2)(v) is repealed. 128 Meaning of eligible offender Struck out (unanimous) ======================================================================= (1) Section 107C(1)(b) is amended by inserting "or standard extended supervision conditions" after "detention conditions". ======================================================================= (2) Section 107C is amended by adding the following subsection: "(3) In this section, detention conditions has the same meaning as it had in section 4 before the commencement of section 140." 129 Chief executive may apply for extended supervision order Section 107F is amended by adding the following subsection: "(3) To avoid doubt, in addressing the matters listed in subsection (2), the health assessor may take into account any statement of the offender or any other person concerning any conduct of the offender, whether or not that conduct constitutes an offence and whether or not the offender has been charged with, or convicted of, an offence in respect of that conduct." 130 Procedure following application for extended supervision order Section 107G(5)(b) is amended by inserting "unless the parties otherwise consent" after "8 days". 131 Hearings relating to extended supervision orders Section 107H is amended by inserting the following subsection after subsection (6): "(6A) For the purposes of this section, a court may direct that the offender concerned be detained in the custody of the court for a period, not exceeding 2 hours, that may be necessary to enable the order to be drawn up and a copy given to the offender." New (unanimous) ----------------------------------------------------------------------- 131A New section 107IA inserted The following section is inserted after section 107I: "107IA Court may impose special conditions on interim basis "(1) When a sentencing court makes an extended supervision order in respect of an offender, the court may, on the application of the chief executive, make an order imposing on the offender any special conditions that the Board may impose under section 107K. "(2) The court may make an order under subsection (1) only if satisfied that there may not be sufficient time, before the extended supervision order comes into force, for the Board to determine which (if any) special conditions should be imposed on the offender. "(3) An order under subsection (1) may do either or both of the following: "(a) suspend any or all of the standard extended supervision conditions that would otherwise apply to the offender: "(b) cancel or vary any special conditions that currently apply to the offender. "(4) An order under subsection (1)--- "(a) takes effect when the extended supervision order to which it relates comes into force; and "(b) expires when the special conditions imposed by the order end as provided by section 107L(2A). "(5) Section 107K applies with all necessary modifications to an order under subsection (1)." ----------------------------------------------------------------------- 132 New sections 107J and 107JA substituted Section 107J is repealed and the following sections are substituted: "107J Conditions of extended supervision order "(1) The conditions of an extended supervision order are--- "(a) the standard extended supervision conditions set out in section 107JA; and "(b) any special conditions imposed by the Board under section 107K, which apply for the period determined by the Board. "(2) The standard extended supervision conditions--- "(a) apply throughout the term of the order (except as provided in section 107K(3) and section 107O); and "(b) must be treated for the purpose of sections 56 to 58 as having been imposed by the Board. "107JA Standard extended supervision conditions {apply where offender is subject to extended supervision order} Struck out (unanimous) ======================================================================= An offender who is subject to the standard extended supervision conditions must comply with the following conditions: ======================================================================= New (unanimous) ----------------------------------------------------------------------- "(1) The standard extended supervision conditions are: ----------------------------------------------------------------------- "(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 commencement of the extended supervision order: "(b) the offender must report to a probation officer as and when required to do so by a probation officer, and must notify the probation 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 obtain the prior written consent of a probation officer before moving to a new residential address: "(d) if consent is given under paragraph (c) and the offender is moving to a new probation area, 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) the offender must not reside at any address at which a probation officer has directed the offender not to reside: "(f) the offender must obtain the prior written consent of a probation officer before changing his or her employment: "(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 take part in a rehabilitative and reintegrative needs assessment if and when directed to do so by a probation officer: "(i) the offender must not associate with[, or contact,] a person under the age of 16 years, except in the presence and under the supervision of an adult who--- "(i) has been informed about the relevant offending: "(ii) has been approved in writing by a probation officer as suitable to undertake the role of supervision: "(j) the offender must not associate with[, or contact,] a victim of the offender without the prior written approval of a probation officer: "(k) the offender must not associate with[, or contact,] any {specified person or persons of a specified class with whom a probation officer has in writing directed the offender not to associate} [person or class of person specified in a written direction given to the offender for the purposes of this paragraph]. "(2) In this section, contact, includes communicating, or attempting to communicate, with a person by any means, such as by telephone or via the internet." 133 Board may impose special conditions Section 107K is amended by repealing subsections (1) to (3) and substituting the following subsections: "(1) At any time before an extended supervision order expires or is cancelled, and whether or not it has come into force, the Board may, on an application by the chief executive or a probation officer, impose on the offender any special condition that the Board is entitled to impose under section 15. "(2) Any residential restrictions imposed on the offender may include a requirement that the offender submit to being accompanied and monitored, for up to 24 hours a day, by an individual who has been approved, by a person authorised by the chief executive, to undertake person-to-person monitoring. "(3) When the Board imposes special conditions under this section,--- "(a) the Board must specify the duration of those conditions which may (subject to paragraph (b)) be for the full term of the order, or any lesser period; and "(b) in the case of residential restrictions may apply only within the first 12 months of the term of the order; and "(c) if the Board considers that any special conditions imposed on the offender are incompatible with all or any of the standard extended supervision conditions, the Board may (despite section 107J(1)(a)) suspend those incompatible standard extended supervision conditions during the period in which those special conditions are in force, and time runs on the suspended conditions during that period." 134 Commencement and expiry of extended supervision order (1) Section 107L(1)(a) is amended by inserting "under a sentence of imprisonment" after "detained". (2) Section 107L is amended by repealing subsection (2) and substituting the following subsections: "(2) Any standard release conditions to which the offender is subject when the extended supervision order comes into force are discharged. "(2A) Any special conditions [(including any special conditions imposed under section 107IA)] to which the offender is subject when an extended supervision order comes into force continue in force--- "(a) until the date that is 3 months after the date on which the extended supervision order comes into force; or "(b) if an application is made to the Board seeking the imposition of special conditions under section 107K within that 3-month period, until the Board--- "(i) imposes 1 or more of those conditions; or "(ii) imposes any other special condition that the Board is entitled to impose under section 15; or "(iii) declines to impose any special conditions." 135 Suspension of conditions of extended supervision order (1) Section 107P is amended by repealing subsection (1) and substituting the following subsection: "(1) The conditions of an offender's extended supervision order are suspended, and time ceases to run on the order during--- "(a) any period that the offender is under legal custody in accordance with the Corrections Act 2004; and "(b) any subsequent period following the offender's release (if applicable) until the offender's statutory release date." (2) Section 107P(2)(a) is amended by inserting "and in place of any other release conditions that would otherwise apply" after "statutory release date". 136 Functions of Board (1) Section 109(1)(b) is repealed. (2) Section 109(1)(d)(iii) is repealed. (3) Section 109(1)(e)(i) is amended by omitting "and detention conditions". (4) Section 109(1)(e)(ii) is amended by omitting "home detention". (5) Section 109(1) is amended by inserting the following paragraph after paragraph (d): "(da) to monitor the compliance by offenders with their release conditions in accordance with section 29B:". 137 New sections 109A and 109B inserted The following sections are inserted after section 109: "109A Board must follow parole guidelines "(1) In directing the release of an offender and imposing any conditions on an offender, the Board must follow any parole guidelines that are relevant to the offender's case unless the Board is satisfied that it would be contrary to the public interest to do so. "(2) Whenever the Board declines to follow relevant parole guidelines, the Board must state in writing in its order or determination why it considers that following the guidelines would be contrary to the {public interest} [interests of justice]. "109B Application of parole guidelines A parole guideline applies to the release of an offender on or after the date on which the guideline comes into force, whether or not the guideline was in force when the offender's sentence was imposed or when the offence to which the sentence relates was committed." 138 Panel conveners (1) Section 114(3)(a) is amended by omitting "release conditions, parole, or home detention" and substituting "release conditions or parole". (2) Section 114(3)(d) is amended by omitting "under section 67" and substituting "under sections 46(2), 48B(2), 50A(3A), and 67". 139 Decisions of Board Section 116(3) is amended by omitting "or detention". New (unanimous) ----------------------------------------------------------------------- 139A Information before Board Section 117 is amended by adding the following subsection: "(3) This section is subject to sections 13AA to 13AE." ----------------------------------------------------------------------- New (unanimous) ----------------------------------------------------------------------- 139B New heading and sections 118A to 118D inserted The following heading and sections are inserted after section 118: "Summoning witnesses "118A Power to summon witnesses "(1) The chairperson or a panel convenor may, for the purposes of any matter before the Board, issue a summons requiring any person to--- "(a) attend and give evidence; and "(b) produce any books, papers, documents, records, or things in the person's possession or control that are relevant to the subject of the matter before the Board. "(1A) The chairperson or panel convenor may not exercise the power conferred by subsection (1) on the basis of an application or request, but may do so only on his or her own initiative. "(2) A witness is not required to attend and give evidence or produce any things in accordance with a summons issued under subsection (1) unless, at the time of the service of the summons or at some other reasonable time before the day on which the attendance of the witness would, apart from this subsection, be required, there is tendered or paid to the witness a sum in respect of the witness's allowances and travelling expenses in accordance with the scale prescribed for the time being by regulations made under the Summary Proceedings Act 1957. "(3) The summons must be in writing and state the place and time at which the witness is required to attend. Compare: 1908 No 25 s 4D "118B Service of summons "(1) A summons to a witness may be served by--- "(a) delivering it to the witness; or "(b) leaving it at the witness's usual place of residence; or "(c) posting it by registered post addressed to the witness at the witness's usual place of residence. "(2) The summons must be served at least 10 days before the day on which the witness is required to attend. "(3) A summons served under subsection (1)(c) must be treated as having been served at the time when the letter would be delivered in the ordinary course of post. Compare: 1908 No 25 s 5 "118C Protection of witnesses Every witness giving evidence before the Board has the same privileges and immunities as a witness in a court of law. Compare: 1908 No 25 s 6 "118D Offences "(1) Every person commits an offence who, after being summoned to attend to give evidence before the Board or to produce to it any books, papers, documents, records, or things, without sufficient cause,--- "(a) fails to attend in accordance with the summons; or "(b) refuses to be sworn or to give evidence, or having been sworn refuses to answer any question that the person is lawfully required by any member of the Board to answer concerning the subject of the matter before the Board; or "(c) fails to produce any such book, paper, document, record, or thing. "(2) Every person who commits an offence against this section is liable on summary conviction to a fine not exceeding $10,000. Compare: 1908 No 25 s 9". ----------------------------------------------------------------------- 140 Transitional provisions relating to home detention (1) In this section,--- home detention has the same meaning as it had in section 4 of the principal Act before the commencement of this section New (unanimous) ----------------------------------------------------------------------- specified application means any application for home detention that the Board receives--- (a) before the commencement of this section and that has not been determined as at that commencement; or (b) on or after that commencement from an offender who has leave to apply under section 97 of the Sentencing Act 2002 ----------------------------------------------------------------------- specified offender means an offender who is serving his or her sentence on home detention--- (a) on the commencement of this section; or (b) after that commencement, under a direction of the Board that is authorised by subsection (2). (2) The principal Act, as in force immediately before the commencement of this section, applies to any {current application for home detention that the Board has received before that commencement} [specified application] and accordingly governs--- (a) the consideration of the application; and (b) the exercise of any powers in respect of the application and the offender to whom it relates. (3) The principal Act, as in force immediately before the commencement of this section, applies to the home detention of a specified offender and accordingly governs--- (a) the offender's rights, liabilities (including, without limitation, the offender's liability to recall), and obligations in respect of that home detention; and (b) the exercise of any powers in respect of that home detention (including, without limitation, powers to impose, vary, or discharge conditions, and to release the offender on parole). 141 Transitional provisions relating to hearings Sections 44, 47, [and] 49{, and 50A} of the principal Act, as in force immediately before the commencement of this section, continue to apply to any matter that relates to a hearing in respect of which the Board has, before that commencement, given 1 or more notices under section 43(2) of the principal Act. 142 Transitional provision relating to extended supervision order (1) The standard extended supervision conditions set out in section 107JA do not apply to a person who is subject to an extended supervision order made before the commencement of this section. (2) In relation to an extended supervision order made before the commencement of this section and to the person in respect of whom it is made, each reference to standard extended supervision conditions in sections 107J and 107K must be read as a reference to standard release conditions. Struck out (majority) ======================================================================= Subpart 4---Amendments to Prisoners' and Victims' Claims Act 2005 143 Principal Act amended This Part amends the Prisoners' and Victims' Claims Act 2005. ======================================================================= Struck out (majority) ======================================================================= 144 Expiry of Part Section 16 is amended by omitting "30 June 2007" and substituting "30 June 2010". ======================================================================= Struck out (majority) ======================================================================= 145 Compensation of prisoners etc, must be paid to Secretary Section 17(1) is amended by omitting "1 July 2007" in each place where it appears and substituting in each case "1 July 2010". ======================================================================= Schedule 1 s 12 Provisions relating to Sentencing Council 1 Criteria for recommendation by House of Representatives Struck out (unanimous) ======================================================================= (1) The House of Representatives may only recommend a person for appointment under section 11(1)(e) who, in its opinion, has the appropriate knowledge, skills, and experience to assist the Council to achieve its purposes and perform its functions and powers. (2) In addition to the requirements in subclause (1), before recommending an appointment, the House of Representatives must be satisfied that the person has expertise in 1 or more of the following areas: (a) criminal justice matters: (b) policing: (c) the assessment of risk of reoffending: (d) the reintegration of offenders into society: (e) the promotion of the welfare of victims of crime: (f) the effect of the criminal justice system on Maori and people from minority cultures: (g) community issues affecting the courts and the corrections system: (h) public policy. (3) In recommending an appointment, the House of Representatives must take into account the desirability of promoting diversity and balance in the membership of the Council. (4) Subclause (3) is subject to subclauses (1) and (2). ======================================================================= New (unanimous) ----------------------------------------------------------------------- It is considered desirable that any person put forward for appointment under section 11(1)(e) should have the appropriate knowledge, skills, and experience to assist the Council to achieve its purposes and perform its functions, including expertise in 1 or more of the following areas: (a) criminal justice matters: (b) policing: (c) the assessment of risk of reoffending: (d) the reintegration of offenders into society: (e) the promotion of the rights and welfare of victims of crime: (f) the effect of the criminal justice system on Maori and people from minority cultures: (g) community issues affecting the courts and the corrections system: (h) public policy. ----------------------------------------------------------------------- Struck out (unanimous) ======================================================================= 2 Qualification of members (1) A natural person who is not disqualified by this clause may be a member of the Council. (2) The following persons are disqualified from being members: (a) a person who is an undischarged bankrupt: (b) a person who is prohibited from being a director or promoter, or being concerned or taking part in the management, of a company under section 382, 383, or 385 of the Companies Act 1993: (c) a person who is subject to a property order under the Protection of Personal and Property Rights Act 1988: (d) a person in respect of whom a personal order has been made under the Protection of Personal and Property Rights Act 1988 that reflects adversely on the person's--- (i) competence to manage his or her own affairs in relation to his or her property; or (ii) capacity to make or to communicate decisions relating to any particular aspect or aspects of his or her personal care and welfare: (e) a person who has been convicted of an offence punishable by imprisonment for a term of 2 years or more, or who has been sentenced to imprisonment for any other offence, unless that person has obtained a pardon, served the sentence, or otherwise suffered the penalty imposed on the person: (f) a member of Parliament. ======================================================================= 3 Matters relating to appointment of Judges (1) A Judge's appointment as a member does not affect his or her tenure of judicial office or his or her rank, title, status, precedence, salary, annual or other allowances, or other rights and privileges as a Judge (including those in relation to superannuation), and, for all purposes, his or her service as a member must be taken to be service as a Judge. (2) A judicial member may, at any time, decline to participate in, or withdraw from participation in, any particular function or activity of the Council if the Judge considers it incompatible with his or her judicial office. 4 Term of office of members (1) Except as otherwise provided in Part 1 and this Schedule, a member of the Council holds office for a term of up to 5 years as specified in the notice of appointment. (2) A member may be reappointed for 1 further term, but the total of the further term together with the initial term must not exceed 7 years. (3) A member continues in office despite the expiry of his or her term of office until--- (a) the member is reappointed; or (b) the member's successor is appointed. (4) This clause does not apply to a member who is the chairperson of the Parole Board. 5 Validity of appointments (1) The appointment of a person as a member, chairperson, or deputy chairperson is not invalid only because a defect existed in the appointment of the person. (2) This clause does not apply to a defect in the qualifications for appointment of a member, chairperson, or deputy chairperson. 6 Removal or suspension of non-judicial members (1) A non-judicial member of the Council may at any time be removed or suspended from office by the Governor-General, on address from the House of Representatives, for inability to perform the functions of office, neglect of duty, or misconduct. (2) At any time when Parliament is not in session, any non-judicial member of the Council may be suspended from office by the Governor-General in Council for inability to perform the functions of the office, neglect of duty, or misconduct proved to the satisfaction of the Governor-General in Council; but any such suspension must not continue in force beyond 2 months after the beginning of the next session of Parliament. 7 Removal of judicial members A judicial member may be removed as a member at any time under the general law that applies to removal from office as a judge. 8 Replacement of judicial members (1) A member appointed under section 11(1)(a), (b), or (c) may be replaced as a member before the expiry of his or her term,--- (a) in the case of a member appointed under section 11(1)(a), by the President of the Court of Appeal in consultation with the Chief Justice; and (b) in the case of a member appointed under section 11(1)(b), by the Chief High Court Judge in consultation with the Chief Justice; and (c) in the case of a member appointed under section 11 (1)(c), by the Chief District Court Judge in consultation with the Chief Justice. (2) The replacement must be made by written notice to the member (with a copy to the Council). (3) The notice must state the date on which the replacement takes effect, which must not be earlier than the date on which the notice is received. 9 Replacement of non-judicial members (1) If a non-judicial member of the Council dies or resigns or is, or becomes, disqualified or is removed from office before the expiry of his or her term, the vacancy created is to be treated as an extraordinary vacancy. (2) An extraordinary vacancy must be filled in the manner in which the appointment was originally made. (3) Clause 4 (which relates to the term of office of a member) applies to an appointment under this clause. 10 No compensation for loss of office A member of the Council is not entitled to compensation or other payment or benefit relating to his or her ceasing, for any reason, to hold office as a member. 11 Resignation of members (1) A member of the Council may resign from office by written notice to--- (a) in the case of a member appointed under section 11(1)(a), the President of the Court of Appeal; and (b) in the case of a member appointed under section 11(1)(b), the Chief High Court Judge; and (c) in the case of a member appointed under section 11(1)(c), the Chief District Court Judge; and (d) in the case of a member appointed under section 11(1)(e), the Minister. (2) The notice under subclause (1) must be signed by the member and the member must provide a copy of it to the Council. (3) The resignation is effective on receipt, by the appropriate person as provided by subclause (1), of the notice or at any later time specified in the notice. (4) In relation to a resignation under subclause (1)(d), the Minister must table a copy of the notice of resignation in the House of Representatives. 12 Members ceasing to hold office (1) A member of the Council ceases to hold office if he or she--- (a) resigns in accordance with clause 11; or (b) is removed from office in accordance with clause 6 or any other enactment; or Struck out (unanimous) ======================================================================= (c) is or becomes disqualified from being a member under any of paragraphs (a) to (f) of clause 2(2); or ======================================================================= (d) otherwise ceases to hold office in accordance with any enactment. (2) The Minister must notify in the Gazette the fact that a person has ceased to hold office. Remuneration and expenses 13 Remuneration of members (1) Except as provided in subclause (2), a member of the Council is entitled to receive, from the funds of the Sentencing Council, remuneration for services as a member at such rate as the Remuneration Authority from time to time determines. (2) An office holder of the following kind is not entitled to any remuneration for services as a member of the Council in addition to his or her remuneration in respect of that office: (a) a Judge: (b) an employee (including a chief executive) within any part of the State services. (3) A member of the Council is entitled, in accordance with the fees framework, to be reimbursed out of the funds of the Council for actual and reasonable travelling and other expenses incurred in carrying out his or her office as a member. Delegation 14 Ability to delegate (1) The governing body of the Council may delegate any of its functions or powers, either generally or specifically, to any of the following persons by resolution and written notice to the person or persons: (a) a member of the Council: (b) an employee of the Council: (c) any other person or persons approved by its governing body. Struck out (unanimous) ======================================================================= (2) The Council's governing body must not delegate the general power of delegation. ======================================================================= New (unanimous) ----------------------------------------------------------------------- (2) The Council's governing body must not delegate--- (a) the power to produce sentencing and parole guidelines under section 10(1)(a) and (b): (b) the general power of delegation. ----------------------------------------------------------------------- Procedure for meetings of Council 15 Procedure generally Except as otherwise provided in Part 1 and this Schedule, the Council may regulate its own procedures. New (unanimous) ----------------------------------------------------------------------- 15A Procedure at meetings (1) A quorum for a meeting of the Council is the number that is half the number of members. (2) No business may be transacted at a meeting of the Council if a quorum is not present. ----------------------------------------------------------------------- 16 Voting at meetings (1) Each member has 1 vote. New (unanimous) ----------------------------------------------------------------------- (1A) In addition to his or her general vote, the chairperson has, in the case of an equality of votes, a casting vote. ----------------------------------------------------------------------- (2) All decisions of the Council are decided by a majority of the votes cast by the members present. Protection of members from liability 17 Protection from liability (1) This clause applies to--- (a) each member of the Council; and (b) every person employed by the Council. (2) No person to whom this section applies is personally liable for any act done or omitted to be done by the Council in good faith in the performance or intended performance of the functions or powers of the Council. Application of State Sector Act 1988 18 Application of sections 84 to 84B of State Sector Act 1988 (1) The governing body of the Council is an employer in the State services for the purposes of sections 84 to 84B of the State Sector Act 1988. (2) Sections 84 to 84B of the State Sector Act 1988 apply to the officers and employees of the Council. Official observers on Council 19 Official observers The chief executives of the Ministry of Justice and the Department of Corrections may, if either chief executive thinks fit or at the request of the Council, appoint an employee each as an official observer to the Council. Application of Crown Entities Act 2004 20 Application of certain provisions of Crown Entities Act 2004 (1) For the purposes of the application of the provisions of the Crown Entities Act 2004 listed in sections 45M and 45N and Schedule 4 of the Public Finance Act 1989, the responsible Minister is the Minister of Justice. (2) A request for information under section 133 of the Crown Entities Act 2004 may not be refused under section 134(1)(b) of that Act (which relates to the refusal to supply information relating to the carrying out of statutorily independent functions) if the request for information by the responsible Minister relates to the operations and performance of the Council. Schedule 2 s 13 Amendments to other enactments Official Information Act 1982(1982 No 156) Schedule 1: insert "Sentencing Council" after "Securities Commission". Public Finance Act 1989 (1989 No 44) Schedule 4: insert in the first column, in its appropriate alphabetical order, the item "Sentencing Council" and insert alongside that item, ticks in the third, fourth, fifth, sixth, seventh, eighth, and ninth columns. Schedule 3 s 78 Amendments to other enactments Children, Young Persons, and Their Families Act 1989 (1987 No 24) New (unanimous) ----------------------------------------------------------------------- Section 207D(1)(f)(ii): omit "; and" and substitute "; or". Section 207D(1)(f): add: "(iii) a sentence of home detention imposed under section 80A of the Sentencing Act 2002; and". Section 207K(1)(e)(ii): omit "; and" and substitute "; or". Section 207K(1)(e): add: "(iii) a sentence of home detention imposed under section 80A of the Sentencing Act 2002; and". Section 207Q(1)(c)(ii): omit "; and" and substitute "; or". Section 207Q(1)(c): add "(iii) a sentence of home detention imposed under section 80A of the Sentencing Act 2002; and". Section 248(1)(b): insert "or to a sentence of home detention imposed under section 80A of the Sentencing Act 2002," after "(as those terms are defined in section 4(1) of the Sentencing Act 2002),". ----------------------------------------------------------------------- Struck out (unanimous) ======================================================================= Section 251(1)(j)(iii): insert "or intensive supervision" after "supervision". Section 251(1)(j): add: "(iv) in the case of a young person who is subject to a sentence of community detention (within the meaning of that Act), any person or agency, or a representative of any person or agency, that provides any course or conducts any programme that the young person is required to undertake as a condition of the sentence or to undergo the sentence". ======================================================================= New (unanimous) ----------------------------------------------------------------------- Section 251(1)(j): repeal and substitute: "(j) if the young person is subject to a community-based sentence (as that term is defined in section 4(1) of the Sentencing Act 2002) or a sentence of home detention imposed under section 80A of the Sentencing Act 2002,--- "(i) a probation officer: "(ii) in the case of a young person who is subject to a sentence of community work (within the meaning of that Act), a representative of the agency on whose behalf the young person is required to perform any work for the purposes of the sentence: "(iii) in the case of a young person who is subject to a sentence of supervision, intensive supervision, or a sentence of home detention (within the meaning of that Act), any person or agency, or a representative of any person or agency, that provides any course or conducts any programme that the young person is required to undertake as a condition of the sentence or to undergo under the sentence:". Section 285(5): insert after paragraph (b): "(ba) any sentence of home detention imposed under section 80A of the Sentencing Act 2002; or". Section 290(1)(b): insert "or a sentence of home detention imposed under section 80A of the Sentencing Act 2002" after "(within the meaning of section 4(1) of the Sentencing Act 2002)". Section 293(b): insert "or a sentence of community detention or home detention" after "liable to imprisonment". Section 303(b): insert "or a sentence of home detention imposed under section 80A of the Sentencing Act 2002" after "(as those terms are defined in section 4(1) of the Sentencing Act 2002)". ----------------------------------------------------------------------- Corrections Act 2004 (2004 No 50) Struck out (unanimous) ======================================================================= Definition of person under control or supervision in section 3(1): insert the following paragraph after paragraph (b): "(ba) a person who is subject to a sentence of home detention:". Paragraph (c) of the definition of person under control or supervision in section 3(1): repeal and substitute: "(c) a person who is serving a sentence of imprisonment on home detention:". ======================================================================= New (unanimous) ----------------------------------------------------------------------- Definition of person under control of supervision in section 3(1): repeal and substitute: "person under control or supervision means--- "(a) a prisoner: "(b) a person who is subject to a community-based sentence: "(c) a person who is subject to a sentence of home detention: "(d) a person who is serving a sentence of imprisonment on home detention: "(e) a person who is subject to conditions under the Parole Act 2002 or under section 80M or 93 of the Sentencing Act 2002". ----------------------------------------------------------------------- Section 8(1)(c): repeal and substitute: "(c) ensuring the welfare of offenders serving a sentence of imprisonment on home detention[,] or subject to community-based sentences or sentences of home detention or conditions imposed under the Parole Act 2002 [or Sentencing Act 2002,] during periods while, in the presence of any employee of the department, those offenders carry out their sentences {to} [or] undergo any supervision forming part of the conditions to which they are subject:". New (unanimous) ----------------------------------------------------------------------- Heading above section 24: repeal and substitute: "Persons with powers and functions in relation to administration of community-based sentences, sentences of home detention, conditions of release, parole, or sentences of imprisonment served on home detention". ----------------------------------------------------------------------- Section 25(1)(a): repeal and substitute: "(a) to supervise all persons placed under the officer's supervision under a sentence of supervision or intensive supervision or community detention or home detention, or while serving a sentence of imprisonment on home detention, and to ensure that the conditions of the sentence or of the release are complied with:". New (unanimous) ----------------------------------------------------------------------- Section 25(1)(b): repeal and substitute: "(b) to arrange and administer community-based sentences and sentences of home detention imposed under section 80A of the Sentencing Act 2002 referred to the officer for that administration, and to ensure that the sentences are carried out". Section 25(1)(c): insert "or sentences of home detention imposed under section 80A of the Sentencing Act 2002" after "community-based sentence". Section 27(2): insert "or sentence of home detention imposed under section 80A of the Sentencing Act 2002" after "community-based sentences". ----------------------------------------------------------------------- Section 34(1): insert "serving a sentence of imprisonment" after "(other than a person who is". Struck out (unanimous) ======================================================================= Section 156(2)(b)(ii): repeal and substitute: "(ii) the monitoring of a complainant while the complainant is or was serving a sentence of imprisonment on home detention; or". ======================================================================= New (unanimous) ----------------------------------------------------------------------- Section 156(2)(b)(ii): repeal and substitute: "(ii) the monitoring of a complainant while the complainant is or was--- "(A) serving a sentence of imprisonment by way of home detention: "(B) serving a sentence of home detention imposed under section 80A of the Sentencing Act 2002: "(C) serving a sentence of community detention: "(D) on parole subject to residential restrictions imposed under section 15 of the Parole Act 2002; or". ----------------------------------------------------------------------- Section 157(1): omit "or from which home detention is or was monitored" and substitute "or from which a sentence of imprisonment served on home detention or a sentence of home detention or a sentence of community detention is or was monitored". Section 181(2): insert after paragraph (a): "(ab) if the chief executive is authorised by regulations made under this Act to do so, supply to the chief executive of the Department of Labour the information specified in subsection (3) in respect of persons who have received a sentence of home detention". Section 182(1)(b): insert "{(when released on home detention from a sentence of imprisonment)} [(when serving a sentence of imprisonment on home detention)]" after "on home detention". Section 182(3)(b): insert "serving a sentence of imprisonment" after "in the case of a highest-risk offender who is". Section 182(4): insert "{(when released on home detention from a sentence of imprisonment)} [(when serving a sentence of imprisonment on home detention)]" after "on home detention". New (unanimous) ----------------------------------------------------------------------- Section 182A(3)(a): repeal and substitute: "(a) to monitor compliance by the child sex offender with his or her release conditions, detention or post-detention conditions, conditions of a sentence of supervision, intensive supervision or home detention (imposed under section 80A of the Sentencing Act 2002), or conditions of an extended supervision order:". Section 182B(1)(c): repeal and substitute: "(c) who is subject to release conditions, detention or post-detention conditions, a sentence of supervision, intensive supervision, or home detention (imposed under section 80A of the Sentencing Act 2002), or an extended supervision order." Crimes Act 1961 (1961 No 43) Section 19DA(2): insert "or home detention" after "community work". Section 19DA(3): insert "or home detention" after "community work". Section 19DA(4): insert "or home detention" after "community work". Section 19DA(5): insert "or home detention" after "community work". Section 19DA(6): insert "or home detention" after "community work". Section 19DA(7): insert "or home detention" after "community work". Section 399(3): insert "intensive supervision, community detention, or home detention," after "supervision". Section 399(4)(c): omit "of supervision". Criminal Investigations (Bodily Samples) Act 1995 (1995 No 55) Definition of home detention in section 2(1): repeal. Section 2(1): insert in its appropriate alphabetical order: "residential restrictions means residential restrictions imposed under section 33(2)(c)(ii) of the Parole Act 2002". Section 4A(3): insert after paragraph (a): "(ab) subject to residential restrictions imposed under section 15 of the Parole Act 2002". Section 24A(4): omit "a sentence of home detention" and substitute "a sentence of imprisonment by way of home detention or a sentence of home detention imposed under section 80A of the Sentencing Act 2002 or is on parole subject to residential restrictions imposed under section 15 of the Parole Act 2002". Section 24A(4)(a): insert "or is required to remain" after "is detained". Section 24A(5): repeal and substitute: "(5) Despite subsection (4)(a), a Judge may include a condition in a suspect compulsion order or juvenile compulsion order that a respondent give a sample at a place other than the residence at which the person is detained or is required to remain, if the Judge is of the view that it is necessary to do so on account of the respondent's state of health." Section 39A(3): omit "a sentence by way of home detention" and substitute "a sentence of imprisonment by way of home detention or a sentence of home detention imposed under section 80A of the Sentencing Act 2002, or is on parole subject to residential restrictions imposed under section 15 of the Parole Act 2002". Section 39A(3)(b)(i): insert "or is required to remain" after "the person is detained". Section 39A(4): repeal and substitute: "(4) Despite subsection (3)(b)(i), a commissioned officer of the police may state in a databank compulsion notice that a person may give a bodily sample at a place other than the residence at which the person is detained or is required to remain, if the commissioned officer of the police issuing the notice is of the view that it is necessary to do so on account of the person's health." Section 39C(2): repeal and substitute: "(2) If a person to whom a databank compulsion notice relates is serving a sentence of imprisonment by way of home detention or a sentence of home detention imposed under section 80A of the Sentencing Act 2002, or is on parole subject to residential restrictions imposed under section 15 of the Parole Act 2002, the place the commissioned officer of the police must specify under subsection (1) must be the residence at which the person is detained or is required to remain, unless the commissioned officer of the police is of the view that it is necessary for the person to give the sample at another place on account of the person's state of health." Section 46A: repeal and substitute: "46A Person detained or required to remain at residence to attend to give bodily sample "(1) An agreement reached, under section 24A(4)(b) or section 39A(3)(b)(ii), between a person serving a sentence of imprisonment by way of home detention or a sentence of home detention imposed under section 80A of the Sentencing Act 2002, or on parole subject to residential restrictions imposed under section 15 of the Parole Act 2002, and a member of the police to vary the date on which a bodily sample is to be taken, pursuant to a compulsion order or databank compulsion notice, is of no effect unless it has been approved by the probation officer supervising that person. "(2) Subsection (3) applies if--- "(a) a condition is included in a suspect compulsion order or juvenile compulsion order under section 24A(5); or "(b) a statement is included in a databank compulsion notice under section 39A(4). "(3) If this subsection applies,--- "(a) the police must, as soon as practicable, give the Department of Corrections notice of the need for the person to leave his or her place of detention for the purposes of having a bodily sample taken pursuant to a compulsion order or databank compulsion notice; and "(b) section 46(5) and (6) applies with all necessary modifications." ----------------------------------------------------------------------- Criminal Records (Clean Slate) Act 2004 (2004 No 36) Definition of non-custodial sentence in section 4: insert "a sentence of home detention," after "a community-based sentence,". New (unanimous) ----------------------------------------------------------------------- Extradition Act 1999(1999 No 55) Section 2(4): insert after paragraph (b): "(ba) subject to a sentence of home detention imposed under section 80A of the Sentencing Act 2002; or". Fire Service Act 1975(1975 No 42) Section 21A(1)(h): omit "(not being persons subject to home detention)" and substitute "(not being persons serving a sentence of home detention or serving a sentence of imprisonment on home detention)". International Crimes and International Criminal Courts Act 2000 (2000 No 26) Section 4(2): insert after paragraph (b): "(ba) subject to a sentence of home detention imposed under section 80A of the Sentencing Act 2002; or". International War Crimes Tribunals Act 1995 (1995 No 27) Section 31(1)(b): insert after subparagraph (ii): "(iia) subject to a sentence of home detention imposed under section 80A of the Sentencing Act 2002; or". Land Transport Act 1998 (1998 No 110) Section 94(3A): insert "or intensive supervision" after "supervision". Mutual Assistance in Criminal Matters Act 1992 (1992 No 86) Section 38(1): insert after paragraph (b): "(ba) subject to a sentence of home detention imposed under section 80A of the Sentencing Act 2002; or". Passports Act 1992 (1992 No 92) Section 4(3)(b)(ii): insert ", or sentence of home detention under subpart 2A of the Sentencing Act 2002," after "subpart 2 of Part 2 of the Sentencing Act 2002". Section 27A(2)(d): add: "(iv) subject to a sentence of home detention under the Sentencing Act 2002". Prisoners' and Victims' Claims Act 2005 (2005 No 74) Definition of person under control or supervision in section 4: repeal and substitute: "person under control of supervision means--- "(a) a prisoner: "(b) a person who is subject to a community-based sentence: "(c) a person who is subject to a sentence of home detention: "(d) a person who is serving a sentence of imprisonment on home detention: "(e) a person who is subject to conditions--- "(i) under the Parole Act 2002 (including, without limitation, conditions applying to a person who is subject to an extended supervision order under section 107I of that Act); or "(ii) under section 80M or section 93 of the Sentencing Act 2002; or "(iii) of a similar kind under earlier corresponding enactments: "(f) a person who is arrested and detained under the Armed Forces Discipline Act 1971 pending release or trial: "(g) a service detainee or a service prisoner". ----------------------------------------------------------------------- Privacy Act 1993 (1993 No 28) Item relating to community-based sentences and conditions of release under the heading Department of Corrections {records} [Records] in Schedule 5: omit "supervision or community work" and substitute "supervision, intensive supervision, community work, {or} community detention[, or home detention]". New (unanimous) ----------------------------------------------------------------------- Item relating to community-based sentences and conditions of release under the heading Department of Corrections Records in Schedule 5: insert ", sentences of home detention," after "Community-based sentences". Paragraph (b) of the item relating to Protection orders under the heading Police Records in Schedule 5: repeal and substitute: "(b) a sentence of periodic detention, supervision, intensive supervision, community service, community programme, community work, or community detention; or". Item relating to protection orders under the heading Police Records in Schedule 5: add: "(d) a sentence of home detention (including while subject to post-detention conditions'." Paragraph (b) of the item relating to restraining orders under the heading Police Records in Schedule 5: repeal and substitute: "(b) a sentence of periodic detention, supervision, intensive supervision, community service, community programme, community work, or community detention; or". Item relating to restraining orders under the heading Police Records in Schedule 5: add: "(d) a sentence of home detention (including while subject to post-detention conditions'." Social Security Act 1964 (1964 No 136) Section 27B(1)(e)(ii): repeal and substitute: "(ii) subject to release conditions (as that term is defined in section 4(1) of the Parole Act 2002) that prevent him or her undertaking employment:". Section 27B(1)(e): add: "(iii) serving the sentence on home detention, subject to detention conditions that prevent him or her undertaking employment:". ----------------------------------------------------------------------- Summary Proceedings Act 1957 (1957 No 87) Section 9C(2): insert after paragraph (i): "(ia) impose under section 54{A} [B] of that Act, a sentence of intensive supervision on the offender: "(ib) impose under section 69{A} [B] of that Act a sentence of community detention on the offender:". New (unanimous) ----------------------------------------------------------------------- Section 88(3): insert after paragraph (b): "(ba) subject to sections 80A to 80ZI of the Sentencing Act 2002 and section 106E of this Act, sentence the defendant to a sentence of home detention; or "(bb) subject to sections 69A to 69M and sections 70 to 80 of the Sentencing Act 2002 and section 106E of this Act, sentence the defendant to a sentence of community detention; or". Section 89(2): insert ", community detention, or home detention" after "community work". Section 91(3): insert ", community detention, or home detention" after "community work". Section 106E(1)(c): insert "a sentence of community detention or home detention, or" after ", other than". Section 106E: insert after subsection (1): "(1A) A District Court Judge or Community Magistrate must not sentence a defendant to a sentence of community detention under this Part for non-payment of a fine unless--- "(a) a statement of means has been completed by the defendant; and "(b) the Judge or Community Magistrate has considered the statement of means; and "(c) the Judge or Community Magistrate is satisfied that all other methods of enforcing the fine, other than a sentence of home detention or the issue of a warrant of commitment, have been considered or tried and that they are inappropriate or unsuccessful; and "(d) a pre-sentence report has been provided in accordance with section 26A of the Sentencing Act 2002; and "(e) the Judge or Community Magistrate is satisfied of the matters in section 69C(2) of the Sentencing Act 2002. "(1B) A District Court Judge must not sentence a defendant to a sentence of home detention under this Part for non-payment of a fine unless--- "(a) a statement of means has been completed by the defendant within the immediately preceding 14 days; and "(b) the defendant is before a District Court Judge; and "(c) the defendant's last completed statement of means has been considered by the District Court Judge; and "(d) a pre-sentence report has been provided in accordance with section 26A of the Sentencing Act 2002; and "(e) the Judge is satisfied of the matters in section 80A(2) of the Sentencing Act 2002; and "(f) the Judge is satisfied that all other methods of enforcing the fine, other than the issue or a warrant of commitment, have been considered or tried and that they are inappropriate or unsuccessful; and "(g) the Judge is satisfied that the defendant has the means to pay the fine." Section 106E(3): insert "imposes a sentence of home detention or" after "Before a District Court Judge". Section 106E(7): omit "subsection (1) or subsection (2)" and substitute "subsections (1), (1A), (1B), and (2)". Section 124(3): insert "intensive supervision, community detention, or home detention," after "supervision,". ----------------------------------------------------------------------- Section 137(1)(a): omit "supervision or community work" and substitute "supervision, intensive supervision, community work, {or} community detention[, or home detention]". Section 137(2)(a): omit "supervision or community work" and substitute "supervision, intensive supervision, community work, {or} community detention[, or home detention]". Section 137(3)(a): omit "supervision or community work" and substitute "supervision, intensive supervision, community work, {or} community detention[, or home detention]". Legislative history 20 November 2006 Introduction (Bill 93-1) 5 December 2006 First reading and referral to Justice and Electoral Committee