The Sentencing And Parole Reform Bill
The law relating to sentencing and parole is at present contained in the Criminal Justice Act 1985.
The Criminal Justice Act has been amended numerous times since its passage, often in an ad hoc and politically motivated manner. The law now lacks clarity, transparency, and an overall sense of purpose. This has led to inconsistent sentencing which does not always adequately reflect the seriousness of the crime.
The Criminal Justice Act at present contains automatic final release provisions that are illogical and greatly restrict the ability of authorities to keep dangerous offenders in prison until close to the end of their sentence. Authorities are at present obliged to release most inmates after two-thirds of their sentence (or earlier) so that they serve a third or more of their sentence in the community even if the inmate is at high risk of re-offending.
The Sentencing and Parole Reform Bill will replace the Criminal Justice Act with two new acts – the Sentencing Act and the Parole Act – designed to address the shortcomings of the current law.
The key features of the proposed new law are:
* New statutory
guidelines outlining the purposes of sentencing and the
underlying principles that Judges should apply
* Under the new guidelines, offences that are near the worst instance of their type should attract sentences that are close to the statutory maximum available sentence
* Abolition of automatic final release after serving two-thirds of a sentence in prison. The final release date will now be the same as the sentence expiry date, with an additional 6-month supervised transition back into the community possible. Parole eligibility will mean that those offenders who continue to pose a threat may be kept in prison until the sentence expiry date. At the other end, inmates who have shown contrition, dealt with the causes of their offending, and do not pose a threat to the community, can be considered for release after one third of the sentence, subject to supervision and recall to complete their sentence if they are released and re-offend
* Modification of the current sentence of preventive detention, including lowering to 18 the age at which an offender may be classified as dangerous and sentenced to an indeterminate sentence, with a minimum non-parole period of at least 5 years and an ability to be recalled for the rest of their life-time
* A greater range of sentences available for murder, rather than the present mandatory life imprisonment with a standard 10-year non-parole period. Life imprisonment with a minimum non-parole period of 17 years will be the starting point for the worst types of murder. Judges will be able to impose much longer minimum periods before parole in line with the statutory guidelines that a worst offence should attract a sentence close to the maximum sentence available
* Greater use of fines and reparation so that victims can receive recompense from the offender in a greater range of circumstances
* Rationalisation of community-based sentences down to two types of sentence
* Abolition of the ineffective sentence of corrective training
* A new national Parole Board structure with regional offices to ensure professionalism, consistency, and accountability
* Specified criteria for determining release on parole that place the protection of society as the paramount consideration
* Increase in the maximum penalty for breach of parole from 3 months to 1 year in prison
Clarity, consistency and transparency
The lack of clear sentencing guidelines in current legislation increase the risk that judges may sometimes hand down different sentences for similar offences. At the same time, there is often too little distinction in sentencing between moderately serious offending and very serious offending.
The new law will address the problems of clarity in the law and consistency in its application by stating clearly:
* The general purposes of sentencing
legislation. Such purposes will include promoting the
safety of the community, recognising the interests of
victims and ensuring that they receive adequate compensation
* The purposes for which a specific sentence may be imposed. These purposes include denouncing the sort of conduct in which the offender was involved, deterrence, protecting the community, providing reparation and rehabilitation;
* The principles to be taken into account in setting a sentence. These include the need to take into account the seriousness of the offending, the current maximum available penalty, the need to maintain consistency with sentencing for similar offending, and the outcome of any restorative justice process;
* That there should be a strong presumption in favour of fines and reparations, so that a victim may be compensated. Community-based sentences will be used when fines are not appropriate, and imprisonment will be used in those cases where the gravity of the offence or the need to protect the public make it necessary;
* That very serious offences of their type should receive a sentence near the maximum penalty available.
The sentencing process will be made more transparent and understandable for victims and the public, through a statutory requirement that judges provide reasons in open court for decisions that involve imprisonment. There should also be reasons given when an offender has been classified as dangerous and received an indeterminate sentence. In addition information will be provided to a sentenced offender on the nature of sentence, the obligations of the sentence, and the consequences of non-compliance with the sentence.
A new parole system and structure
Transparency of the sentencing process will also be promoted through changes to parole eligibility and final release laws:
* Final release after serving two-thirds of
a prison sentence will be abolished. It will be possible
for offenders to be kept in prison up until the sentence
expiry date. Authorities will be able to control released
inmates for at least an additional six months after they are
released into the community;
* Offenders serving more than 2 years imprisonment will be eligible to be considered for parole after serving one third of their sentence behind bars – so that dangerous offenders can be locked up longer while offenders who do not pose a threat can instead be monitored in the community for the balance of their sentence;
* Short-term inmates (24 months and less) have a final release date at one-half of sentence and no earlier parole eligibility;
* Offenders will be released on parole only if the Parole Board is satisfied that the offender does not pose an undue risk to the safety of the public. The Parole Board will be able to keep offenders who pose an undue risk to public safety in prison right up to the final release date;
* The Parole Board will be able to set a maximum interval of more than one year between hearings when it declines parole in a particular case. This means that instead of an eligible inmate having to be reconsidered for parole every year, where it is obvious to the Parole Board that no immediate change in an inmate’s suitability for release is going to occur in one year, a longer time between hearings may be set. For inmates subject to determinate sentences the new maximum interval will be two years, and for those subject to indeterminate sentences, the maximum will be five years. Where the authority sets an interval of more than one year, it would be required to state reasons for this and the statute would provide for this decision to be reviewed by the High Court on application.
A New Zealand Parole Board will be introduced to replace the present Parole Board and District Prisons Boards. The new Board will be a single, professional body with nationwide coverage for making parole decisions. This will ensure greater consistency, accountability, and public confidence in parole decisions.
The Parole Board will be guided by clearly stated principles:
* The purpose of parole is to
contribute to the safety and well being of society through
timing and conditions of release that will best protect the
public, rehabilitate offenders and reintegrate them into the
community as law-abiding citizens;
* The fundamental principle is that the protection of society should be the paramount consideration in the determination of any case.
Longer sentences for the worst murders
Changes to the sentences available for murder will mean that sentences will better be able to fit the crime. There is a clear difference between a mercy killing and a home invasion murder, yet at present the law does not provide sufficient distinction between the two crimes. The proposed changes are:
* Life imprisonment becomes the maximum penalty for
murder, rather than the mandatory penalty, but with a very
strong presumption in favour of its use. Finite penalties
will only be available for murder if, in the particular
circumstances, a sentence of life imprisonment would be
manifestly unjust – for example, in the case of a mercy
killing or after severe abuse. When a finite sentence is
given the judge must give written reasons for doing so;
* The standard minimum non-parole period for life imprisonment will remain at 10 years, but longer minimum periods may be imposed where the offence is sufficiently serious. There will be no upper limit to the non-parole period which can be imposed under this provision;
* A new starting point of 17 years without parole eligibility within the life sentence for the worst types of murders. Guidelines will specify the aggravating factors that indicate when a non-parole period of 17 years should be used as a starting point by the sentencing judge;
* Aggravating factors will include the nature of the motive (for example, an attempt to subvert the course of justice), the level of premeditation, the nature of the act itself (for example, a ‘home invasion’ or demonstrating extreme brutality, depravity or callousness), and the nature of the victim (for example, when the victim is a law enforcement official or a child);
* Courts will be able to impose a non-parole period of more than 17 years in cases that are sufficiently serious;
* Repeal of the 1999 home invasion murder provisions. Home invasion will instead be specified as an aggravating factor.
Modification of preventive detention
The current indeterminate sentence of preventive detention will be changed to better ensure that more dangerous offenders are able to be monitored and controlled for life. The changes proposed are as follows:
* Availability for offenders aged
18 years (rather than 21 as at present) and over convicted
of serious sexual or violent offences, and considered likely
to commit another serious sexual or violent offence if
released at the time when any other available sentence had
* Guidance as to when this sentence should be imposed;
* Flexibility in fixing non-parole periods to ensure proportionality between the current offending and the sentence imposed, and to address the individual circumstances of the case, with a minimum non-parole period of at least 5 years. The current minimum non-parole period of 10 years discourages use of preventive detention in circumstances where life-time control and supervision would otherwise be desirable;
* Automatic right of appeal to the Court of Appeal for all offenders and the right to an oral hearing where the sentence has been imposed.
A better deal for victims
The changes proposed by the Sentencing and Parole Reform Bill will result in a better deal for victims, by introducing:
* A strong presumption in favour
of reparation, and an extension of reparation to allow
payments for physical harm, and not just property loss or
damage and emotional harm;
* Reparation for loss or damage to property will also include loss or damage that is of a consequential nature;
* A requirement that judges give reasons if they have not imposed reparation;
* A new power for the court to order compensation for property loss or damage, even when there is a discharge without conviction, a conviction and discharge, or a conviction and deferment of sentence.
In addition, the court, when sentencing, will be able to take into account:
* Any offer
of compensation or performance of work or service by or on
behalf of the offender to the victim;
* Any other offer to make amends by the offender to the victim;
* Any agreement reached between the offender and victim as to how the offender can remedy the wrong, loss or damage they have caused;
* The extent to which that offer or agreement has been accepted by the victim.
This will ensure that the victim’s views are taken into account.
Costs and effect on the prison population
The net cost of the proposed changes is estimated to be around $6 million in operating expenditure in the first year, with a total of around $35 million in operating costs over the first four years. There will also be around $54 million of capital costs over the first four years. The main reason for these costs is the projected increase in the prison population as a result of the changes.
Imprisonment is an extremely expensive way to deal with offenders. The changes proposed will have an estimated net effect of increasing the prison population by around 300 inmates, after year 4, on a daily muster basis. However, this total reflects the number of dangerous inmates who are currently being released when they should not be, and who pose a real threat to public safety. Therefore the costs of this additional imprisonment are justified.
Other measures are currently being examined by the Government that would have the effect of reducing the prison population in the medium term, predominantly through the use of preventive measures, and also by more effective rehabilitation to reduce re-offending.
What the Sentencing and Parole Reform Bill will not do
The Sentencing and Parole Reform Bill does not address maximum penalties presently available for specific offence categories. Maximum penalties are set down in their own statutes – for example, the Crimes Act 1961. The Sentencing and Parole Reform Bill is concerned with the types of sentences available, with ensuring the imposition of appropriate sentences within the maxima, and with the effective administration of those sentences (including release mechanisms such as parole), in order to help ensure public safety.
The Sentencing and Parole Reform Bill does, nevertheless, directly address the indeterminate sentences of ‘life’ and ‘preventive detention’. An offender sentenced to an indeterminate sentence must serve a minimum period of time behind bars before they become eligible to be considered for release. Eligibility for release is a question of sentence administration, and is therefore reformed by this Bill.
The measures contained in the Sentencing and Parole Reform Bill will not have retrospective effect. For example, inmates already serving prison sentences will continue to have sentences administered under the law as it presently stands.
The Sentencing and Parole Reform Bill will be introduced to Parliament by mid-2001. The select committee will seek public submissions on the Bill, and report back to Parliament before the end of the year. Following public consultation, it is intended that the Bill be passed into law to have effect by March 2002.