11 November, 2003
Goff unveils supervision regime for sex offenders
New legislation introduced in Parliament today gives New Zealand one of the toughest regimes in the world for dealing with repeat child sex offenders, says Justice Minister Phil Goff.
"The Sentencing and Parole Amendment Bill allows judges to place high-risk convicted sex offenders under an extended supervision regime for up to 10 years following the completion of their prison sentences," Mr Goff said.
"Once passed, the new law will apply from today's date to all child sex offenders, including those convicted under existing legislation and still subject to their sentence.
"The primary purpose of this law is preventative, not punitive. It aims to protect children against sex offenders who Corrections and the judiciary regard as being at high risk of re-offending but who must be released because they are subject to a finite sentence.
"Under last year's Sentencing Act, the highest-risk offenders are likely to receive preventive detention. This is a lifetime sentence under which an offender who constitutes undue risk does not ever have to be released.
"The new legislation will cover high-risk offenders who under the old legislation received finite terms and by law must be released. It will also apply to offenders whose offences are not so serious as to be sentenced to preventive detention but who still present a medium to high-level risk.
"Under supervision, offenders will be subject to reporting requirements and to controls over place of residence, work and who they associate with. They may be required to attend rehabilitation and relapse prevention programmes, and if necessary can be placed under a curfew and electronic monitoring regime.
"The legislation has received a negative vet under the Bill of Rights Act because supervision can be imposed retrospectively and because of electronic monitoring. The first allegedly breaches rules against double jeopardy and the second could constitute unreasonable search and seizure.
"I do not lightly promote legislation which in part may conflict with Bill of Rights requirements. However in this instance the risk posed by such offenders is real, and the vulnerability of our children and the need to protect them must be our paramount consideration.
"I make no apologies for insisting that protection of children takes priority over those convicted sex offenders who the court believes are likely to re-offend."
The Bill makes two other significant changes and some technical amendments.
"Following the Court of Appeal's request in R v M and D to clarify s.86 of the Sentencing Act, this Bill confirms that the Court's approach has been correct and in line with the intent of the section," Mr Goff said.
"Minimum terms of imprisonment, up to two-thirds of the sentence, can be set for offenders jailed for two years or more where the Court considers automatic release at one third of the sentence is insufficient punishment, denunciation and deterrence, or insufficient for protecting the community from the offender.
"The other changes tighten the law relating to deferment of sentences and those who are given leave to apply for home detention.
"Sentences are being deferred too frequently. These changes clarify the legislation to bring it into line with the original policy intent, and require the court to impose bail conditions when a sentence is deferred.
"Too many cases are being given leave to apply for home detention where this sentence is not appropriate due to the nature of the offender or the offence. Around 40 percent of those cases given leave by the Courts are subsequently denied home detention by the Parole Board.
"This change clarifies that judges can and should use their discretion not to grant leave in such cases in the first instance," Mr Goff said.
BACKGROUND ON PAROLE (EXTENDED SUPERVISION) AND SENTENCING AMENDMENT BILL
The main policy advanced by the bill is the establishment of an active management regime for child sex offenders in the community. This regime will be a form of extended supervision.
The bill is also a vehicle for a range of minor adjustments to the Sentencing and Parole Acts, some of which clarify the original policy intent and some which fix technical errors in the legislation.
Extended supervision for child sex offenders
The maximum length of an extended supervision order will be 10 years after end of the sentence.
Unlike when the offender is under parole conditions, the offender is not still subject to a prison sentence, therefore there is no ability to recall them to prison. However, there will be a maximum two-year imprisonment penalty for a breach of conditions.
Extended supervision will be targeted at medium-high and high-risk offenders.
Extended supervision orders will be imposed by the Court following an assessment to determine whether the offender is likely to re-offend. Corrections will apply for an order before the end of sentence, not at sentencing. This is because risk is more accurately assessed at the end of a sentence, not the start.
The offender will be represented and may defend the application.
Special supervision conditions will be set by the Parole Board.
Supervision levels will be at least similar to parole. There will be a more intensive management regime for the highest risk group, which poses a serious and imminent threat, including provision for electronic monitoring where the Parole Board thinks it is necessary.
Supervision levels may reduce over time, and an order may be discharged before expiry if it is no longer needed.
Transitional provisions will ensure orders can be sought for those currently serving a sentence or under parole or release/supervision conditions as at the date of introduction of the bill. This ensures that those worst offenders sentenced before the Sentencing Act 2002 made preventive detention more widely available do not "fall through the cracks".
Electronic monitoring will also be made generally available as a parole condition, where it is warranted.
Extended supervision is a new policy that gives New Zealand one of the toughest regimes for child sex offenders in the world
SECTION 86 – MINIMUM NON-PAROLE PERIODS
Section 86 of the Sentencing Act 2002 allows the imposition of a minimum period before parole for any offender sentenced to 2 years or more in prison, where the offence is sufficiently serious.
The default minimum period is 1/3 of sentence, and the maximum period imposed cannot be more than 2/3. After the expiry of the minimum period, the Parole Board assesses the risks posed by an offender annually (or less frequently) and, despite eligibility to be considered for parole, may keep them in prison until the last day of their sentence.
The Court of Appeal ruled in R v Brown and R v M & D in a manner consistent with the original Government policy intent of section 86. Nevertheless, the Court invited clarification of the section particularly around the meaning of "sufficiently serious" and "out of the ordinary range of offending of a particular kind".
Section 86 is therefore amended to remove the phrases that the Court found problematic, and to replace them with a test that clearly reflects the Court of Appeal’s approach in the line of cases starting with Brown, i.e. that a minimum term should be imposed where 1/3 would represent “insufficient punishment, denunciation and deterrence” and also to clarify that “safety of the community” is relevant to the setting of minimum terms.
Section 103 of the Sentencing Act 2002 is a similar section dealing with minimum periods of imprisonment in relation to life sentences for murder. This section is amended in a similar way and to make it clear that the Court must impose a minimum period in every case.
These changes clarify the legislation to confirm the original policy intent and do not represent a policy change
HOME DETENTION AND DEFERRAL
The Government has been concerned that sentence start dates are being deferred far too frequently, and that there is no control over sentenced offenders whose sentence start dates are deferred either for humanitarian reasons [s100(1)(a)] or for "special reasons" to allow them to apply for home detention [s100(1)(b)]. Around 1 in 5 offenders granted leave to apply for home detention have had their start date deferred; this is not consistent with the original policy intention.
This concern is heightened because offenders granted leave to apply do not always in fact do so, or wait until the very end of their deferral period before doing so; and, of those who do apply, around 40% are rejected by the Parole Board. This raises concerns about whether those who are clearly unsuitable are being unnecessarily referred to the Parole Board.
An amendment will therefore clarify that s100(1)(b) deferrals should be used only in extraordinary circumstances.
An amendment will ensure that offenders deferred under s100(1)(b) apply to the NZPB for home detention within a specified time frame.
An amendment will require bail conditions to be imposed on all offenders whose sentences are deferred.
An amendment will also clarify the respective roles of the judge and the Parole Board, to ensure that judges exercise more discretion rather than referring unsuitable cases to the Parole Board for their consideration.
These changes clarify the legislation to bring it into line with the original policy intent, and do not represent a policy change.