Goff unveils supervision regime for sex offenders
Hon Phil Goff
Minister of Justice
Media Statement
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.
11 November 2003
PAROLE (EXTENDED SUPERVISION) AND SENTENCING AMENDMENT BILL
Overview
-
The bill is called the 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.
ENDS