Home
| Databases
| WorldLII
| Search
| Feedback
New Zealand Penal Policy Papers |
Last Updated: 22 September 2020
Review of Community-based Sentences
Ministry of Justice
Criminal Justice Group
June 1999
Contents
Tables
Executive
Summary
This paper examines the development of community-based
sentences in New Zealand and their use over the last two decades. The contents
also include an overview of
The paper is intended to inform the ongoing development of
policy advice in the Ministry and elsewhere in the justice sector. The
key
findings are:
(i) some offenders who would previously have gone to prison have received community-based sentences, although
(ii) some who would otherwise have received monetary penalties have received community-based sentences;
Introduction
The aim of this paper is to provide an overview of the use of community-based sentences in New Zealand. These are sentences provided for in Part III of the Criminal Justice Act 1985. They are sentences, other than imprisonment and monetary penalties, that are served in the community. They involve an element of supervision by the Community Probation Service.
In many
jurisdictions (including New Zealand) the penalty structure for offences is
uniformly stated in terms of the maximum sentence
of imprisonment and/or fine
that can be imposed for each offence. Community-based sanctions are described
in legislation as alternatives
to imprisonment and there is limited additional
guidance as to their use.
On the international scene the expansion of
non-custodial sanctions and community-based sentences resulted from several
shifts in
penal thinking from the 1960s onwards, towards the view that
imprisonment should be the sentence of last resort suitable only for
serious
offenders who posed a threat to public safety. Some of the assumptions
underlying this expansion were:
However, a report on the use of imprisonment produced
by the Ministry of Justice in June 1998 pointed out that the growth in New
Zealand’s
prison population had occurred in spite of an increase in the
number of community-based sentences created as alternatives to imprisonment.
It
was suggested that there were some indications that community-based sentences
were not always being used as alternatives to imprisonment
but as alternatives
to each other or to lesser penalties such as a fine. Additionally, there was
the point that when community-based
sentences were used instead of custodial
penalties they were imposed on offenders who would otherwise have received short
terms of
incarceration, and so there was relatively little impact on prison
musters.
Community-based Sentences in New Zealand (including their history)
Section 2 outlines the four New Zealand
community-based sentences and their development.
The sentence of periodic
detention was introduced in 1962 and has undergone various changes. Currently,
periodic detention can be
imposed on persons aged 15 years or over who are
convicted of an offence punishable by imprisonment. The maximum term is 12
months.
An offender receiving this sentence is required to report to a periodic
detention work centre for up to 18 hours per week. No individual
period of
detention can be longer than 10 hours.
Generally, the sentence involves undertaking community work outside of the centre under the supervision of assistant wardens who are part-time employees of the Department of Corrections. It is also possible for periodic detainees to be directed to attend classes or groups. A breach of periodic detention is punishable by imprisonment for up to 3 months or a fine up to a maximum of $1,000.
The sentence of community service came into effect on 1 February 1981. It was the first sentence in New Zealand in which a part of the responsibility for the supervision of an offender was given to the community. It was also the first sentence for which the consent of the offender was to be obtained before its imposition.
An offender convicted of an imprisonable offence may be sentenced to undertake community service for a period of between 20 and 200 hours. The types of service are defined in the Criminal Justice Act 1985 and the hours of work must be performed within 12 months. Any breach of community service is punishable by a fine only, up to a maximum of $500.
The sentence of supervision was introduced in 1985, to replace the sentence of probation. Supervision may be imposed on an offender convicted of any offence punishable by imprisonment. It is to be for a period between 6 months and 2 years and the standard conditions of this sentence place an offender under the ‘supervision’ of a probation officer. One example of a standard condition is the requirement for the offender to report to the designated officer as and when required. The court can also impose additional conditions designed to reduce the likelihood of further offending. The sentence does not require the offender’s consent, although consent is needed for any condition of the sentence involving a specified course of training or education.
An offender subject to supervision who breaches any condition of the sentence is liable to a fine not exceeding $500. The judge may, in addition to or instead of a fine, change the conditions of the supervision sentence.
The sentence of community programme, introduced in 1985 as the sentence of community care, is available for any offence punishable by imprisonment, provided the court, the offender and the sponsor can agree to the terms of a programme. The programme which the offender undergoes must not exceed 6 months if it is residential, or 12 months if it is non-residential. There is no offence of breach of the community programme sentence, although if the conditions of the sentence are not complied with they can be varied, or the sentence can be cancelled and a new sentence imposed.
A probation officer can apply for a review of a sentence of supervision, community service, or periodic detention where the offender has been convicted of a breach of the sentence, or if the offender fails to comply with the sentence in any way. The court may then vary the conditions of the sentence, cancel the sentence, or substitute any other sentence that could have been imposed for the original offence (which includes imprisonment).
In any one case the judge has a broad range of sentences from which to select an appropriate sentence to fit the individual circumstances of the particular offender and the offence or offences under consideration. Within the community programme and supervision sentences there are a wide range of possible terms and conditions that can be applied to offenders. This amounts to a considerable level of judicial discretion in the sentencing process. There are few legislative constraints. Although the courts themselves have indicated in broad terms, through judgements, the type of offender for whom each sentence is appropriate and how the sentences rank in terms of severity, there are no definite and precise statements as to their purposes and the circumstances in which each one is to be applied.
Previous Reviews
Section 3 comprises an overview of policy issues that emerged from previous Department of Justice reports between 1981 and 1993 that looked at community-based sentences. A number of key issues emerged that remain relevant to current practice, such as:
Use of Community-based Sentences
In 1998, a total of
37,348 imprisonable cases resulted in one or more community-based sentences
being the most serious sentence imposed.
(On 30 June 1998, the number of people
in New Zealand serving community-based sentences was 21,442.) By way of
comparison, 9,492
cases resulted in a custodial sentence that year (the average
annual prison population was 4,800). 32,421 imprisonable cases resulted
in a
monetary penalty as the most serious sentence imposed.
Key features of
the use of community-based sentences in New Zealand were:
Cost-effectiveness of Community-based Sentences
Section 5 looks at the difficulties determining
the cost-effectiveness of the different community-based sentences. These
include:
A true cost-benefit analysis of
the impact of community-based sentences would only be possible if sentences were
imposed in accordance
with strict guidelines. If this were the case it would be
possible to determine the savings or additional costs which might result
from
changes to the guidelines which, for example, caused all cases of a particular
offence type to result in one specific sentence
rather than another. However,
the range of sentencing options provided by the Criminal Justice Act 1985
deliberately maintained
a high degree of judicial discretion. As a result, any
particular sentence imposed is determined on the basis of a very wide range
of
factors (including aggravating and mitigating circumstances) specific to the
individual case rather than by, for example, offence
type only. It is not
possible, therefore, to assume on the basis of statistical data, what
alternative sentences might have been
imposed had the sentencing menu been more
restricted.
International Comparisons
In a brief overview of the
use of community sanctions in a number of overseas jurisdictions, presented in
section 6, the following
generalisations emerged:
Options for Change
This
section outlines a number of possible ways to address the problem of
net-widening, to better match sentences with crime seriousness
and with
offenders’ needs, and to reduce sentence costs.
These options
include:
(i) a direction that community-based sentences are only to be imposed in circumstances where the court would otherwise have sentenced the offender to imprisonment (if community-based sentences are to be genuine alternatives to imprisonment);
(ii) legislative presumptions concerning non-custodial sentences based on sets of offence/offending history combinations. One set would be presumed appropriate for imprisonment, another for one type of community sanction, another for a different community sanction;
(iii) time-units of punishment which can be converted into either terms of
imprisonment or community-based sentences (with terms and
conditions that are
given unit values).
There are arguments for and against these possibilities. Also, at present we are not able to predict the extent to which any of the above changes would impact on the direct costs of sentence administration, on net-widening, and on the treatment needs of offenders. An over-riding consideration is that there is no clear statement or agreed understanding as to which sentencing purposes (just deserts, deterrence, incapacitation, rehabilitation, restitution) should apply in which circumstances and which sentences are consistent with those purposes. In practice, the range of possible circumstances will always make it difficult to be precise in this area.
Conclusions
There has been a great
deal of ambiguity and variety of expectations underlying the introduction of
community-based sentences. Some
of these views were that:
In many jurisdictions (for example
Australia, Canada, United States, and some European countries), non-custodial
sanctions are being
diversified, towards a greater range of these sanctions.
This can be seen for example, in the adoption of a greater number of different
non-custodial sanctions, in the increased possibilities for adding conditions to
existing sanctions, and in the increased possibilities
for combining different
non-custodial sanctions. In some cases these reforms also involve developing
more punitive non-custodial
sanctions.
In New Zealand the Criminal
Justice Act 1985 gave a new emphasis to community-based sentences as
alternatives to imprisonment. Since
1985 there has been a very substantial
increase in the use of these sentences, particularly periodic detention and
community service,
although there has been very low use of the community
programme sentence. There has been a decrease in the relative use of
imprisonment,
particularly for breaches of periodic detention, for offences of
low to moderate seriousness, for offenders with previous convictions,
and for
youth offenders, with these groups now more likely to receive the more serious
community-based sentences of periodic detention
and supervision than in the
1980s. But there has also been a decrease in the use of monetary penalties for
imprisonable offences
which can be largely attributed to the imposition of
community-based sentences (especially community service), where previously a
monetary penalty would have been imposed.
There are a number of concerns about community-based sentences. Perhaps the most frequently cited one is the possibility of net-widening. When it comes to determining whether community-based sentences are being used in New Zealand as alternatives to prison, the evidence is mixed. The prison population continues to rise, although it is likely to have risen more in the absence of community sentences. However, as noted above, some of these sentences have been used for offenders who would otherwise have been fined. In addition, judges have in a high proportion of cases resulting in suspended sentences of imprisonment imposed concurrent community-based sentences. There is clearly a real net-widening risk that if more community sentences become available, they will be used not for those who would otherwise go to prison, but for those who might otherwise have been dealt with by means of an alternative penalty, including a fine.
The argument that community sanctions are less costly than imprisonment is complicated because of the various costs involved. These include the immediate financial costs of administering/enforcing the sentence, and the indirect financial costs resulting from an increase or decrease in crime. There is now a considerable record of the use of community-based sentences from which to draw the lesson that it is extremely difficult to achieve sustainable savings in the prison system through their introduction. The impact on the prison population will be diminished by the fact that such sentences (when they are not net-widening) generally replace only the shorter sentences of imprisonment which are not the major driver of prison musters and so have little effect on the overall size of the prison population. Minor cuts in the number of offenders in prison at any one time will not reduce the number of prison units or the maintenance costs of prisons.
A major difficulty with community sanctions is that of establishing criteria for measuring their degree of success. The criteria could include their cost-effectiveness, the crime prevention effects (recidivism and deterrence), sentence completion rates, the extent to which they reduce the use of custodial sentences without dramatic increases in reoffending, changes in offenders’ attitude or behaviour, or community and victim satisfaction (which could relate to reparation made to the community or victim).
In respect of reconviction/recidivism rates, the available evidence indicates these are related to differences in the gender, age, and criminal histories of those receiving the sentences, rather than the sentences themselves. Overseas evaluations of intensive supervision, community service, and other intermediate sanctions have found that for offenders sentenced to such sanctions that are well-managed these rates do not differ significantly from those of comparable offenders receiving other sentences. In New Zealand, research findings also show that community-based sentences do not reduce recidivism rates once factors such as the criminal history, age and ethnicity of those receiving the sentences are taken into account.
Despite these doubts about how community-based sentences work in practice, it would be going too far to conclude that all community-based sentences are primarily a negative development. There are some other potentially positive benefits, e.g. productive work undertaken for the community by periodic detention or community service projects, and the learning of new skills by offenders. For some types of offenders, some community-based sentences under certain conditions (possibly localised) may keep them from a prison sentence both initially and in the longer-term. We are not yet in a position to state with certainty the exact (quantifiable) relationship of community-based sentences to imprisonment statistics, or to re-offending for that matter.
There are a number of possible changes to the
community-based sentence framework which may better target punishment severity
to crime
seriousness, reduce net-widening, and save costs. However, even if the
role and purpose of community-based sentences were clarified
and this carried
over into their imposition, administration, and enforcement, this alone could
not be expected to solve the problem
of the rising prison population, or produce
significant cost savings to the criminal justice system (particularly in the
short-term).
The aim of this paper is to provide an overview of the use of community-based sentences in New Zealand. These are the sentences covered by and defined in Part III of the Criminal Justice Act 1985, although most of them existed in some manner prior to this legislation. The paper is a follow-up to the review of imprisonment produced by the Ministry of Justice in June 1998.[1] That report pointed out that the growth in New Zealand’s prison population had occurred in spite of an increase in the use of community-based sentences that had been created as alternatives to imprisonment. It was suggested that there were some indications that community-based sentences were not always being used as alternatives to imprisonment but as alternatives to each other or to lesser penalties such as a fine. The point was also made that when community-based sentences were used instead of custodial penalties they were imposed on offenders who would otherwise have received short terms, yet the numbers of short sentence prisoners do not impact on prison musters to nearly the same extent as do the numbers of long term inmates. These issues are looked at in more detail in this review.
Since there have been significant legislative changes leading up to the current situation, this paper presents an historic look at the development of New Zealand’s community-based sentences in addition to a description of the current legal provisions. It describes trends in the imposition of these sentences by the courts, examines their cost-effectiveness, surveys the availability of community-based sentences in other jurisdictions, and looks at possible changes to the current sentencing options. The paper is intended to provide the basis for further analysis of possible law reform in this area.
The term “community-based sentences” is generally used to describe sentences other than imprisonment and monetary penalties that have conditions that are served or performed in the community. They are sentences which involve an element of supervision by the community probation service, rather than being self-regulatory or self-restrictive. They are generally set up to provide an alternative to short-term custodial sentences for offenders. Suspended sentences of imprisonment have not been included under this heading. In the United States there is the classification of intermediate punishments,[2] although that term covers a slightly different range of sentencing options than community-based sentences, referring to all measures that lie between incarceration and what might be termed “regular probation” (which we would classify as a community-based sentence).
Community-based sentences originated in England in the 1820s with probation, whereby some judges, rather than commit an offender to imprisonment, would, if the offence, character, and personal circumstances of the offender justified it, release them into the care of relatives or employers who were held responsible for their conduct. Later, voluntary supervisors became involved and then trained officers came to undertake the work. Official recognition of probation followed in the Probation of First Offenders Act 1887 and the creation of the probation service (the National Association of Probation Officers was formed in 1912).[3] New Zealand passed its own First Offenders Probation Act in 1886. The Act set out the conditions of probation (which was essentially a conditional suspension of a sentence of imprisonment), the offences for which it was available (the most serious offences were excluded), and made provision for the appointment of police officers or other persons as probation officers. The offenders’ conditions were to report monthly to a probation officer, to keep the officer informed of their place of residence, to have the place and nature of their employment approved by the officer, and other special conditions the court thought appropriate.
The Offenders Probation Act 1920 extended the range of circumstances in which a person might be placed on probation by including every offence punishable by imprisonment and removing its restriction to first offenders. The Criminal Justice Act 1954 confirmed probation as a mainstream disposition of the courts.[4] In 1962 New Zealand introduced the sentence of periodic detention, in 1981 community service came into effect, and in 1985 new legislation provided for community care (now called community programme), and the sentence of supervision was introduced to replace probation.
The expansion of non-custodial sanctions and community-based sentences resulted from several shifts in penal thinking from the 1960s onwards, towards the principle of imprisonment as the sentence of last resort. Supporting developments for this position included empirically-backed criticisms that imprisonment rarely resulted in the reform or rehabilitation of offenders, partly because of the alienating environment of prisons and the coercion involved in participation in correctional treatment programmes.[5] It was asserted that many inmates are not deterred from future offending by their experience of imprisonment and that prisons (through their influence on the state of mind of offenders) may even result in some offenders becoming more involved in crime.[6] Also, imprisonment increasingly came to be viewed as a degrading loss of basic freedoms in an unnatural environment. Problems such as poor physical conditions, overcrowding, rioting, and the plight of mentally disturbed inmates brought negative publicity down upon the prison system.[7]
Partly as a result of the above factors it was argued that imprisonment was a severe punishment suitable only for serious offenders who posed a threat to public safety.[8] It followed that efforts to individualise sentencing so that the punishment fits the offender according to the rationales of sentencing (particularly just deserts) could only work if there was a range of sentencing options, scaled in their severity, available for less serious offenders. Community sanctions could provide such a range.[9]
Another major influence was the increasingly high capital and operating costs to the state of prisons and the rising costs of supporting the dependants of those in custody. These costs increased significantly from the late 1970s as longer prison sentences for violent offenders came to be introduced as part of governments’ law and order campaigns. The social costs of imprisonment have also gained greater recognition, not only in respect of inmates but in terms of the great personal strains placed on family and social relationships. [10]
In general, community sanctions came to be seen as a way to reduce the growth of prison accommodation and to provide a continuum of sanctions that met the just deserts concern for proportionality in punishment according to the severity of the offender’s crime.[11] In terms of sentencing rationales the courts have usually justified the imposition of community-based sentences in terms of just deserts and rehabilitation.
The above developments were all discussed in this country’s Report of the Penal Policy Review Committee 1981,[12] an extremely influential document in terms of the development of community-based sentences in New Zealand.
There is a great diversity of assumptions underlying the introduction of community-based sentences. The most common assumption is that they will reduce the use of incarceration and relieve prison overcrowding.[13] The normal justification for the introduction of a new community-based sentence is that to some degree incarceration is being used inappropriately (in terms of just deserts) for less serious offenders, that incarceration has no beneficial behavioural impact on these offenders, and that they could be more appropriately dealt with by community-based sanctions.
The argument that community-based sentences are a more appropriate response to crimes of intermediate and lesser gravity involves a second assumption about these sentences. This is that they are less severe and intrusive punishments and so more humane than imprisonment.[14] Compared to the harshness, unsuitability, and counter-productiveness of imprisonment, community-based sanctions contribute to a more humane and just penal system. This is sometimes said to be the case no matter what conditions are imposed on an offender given a sentence that involves him or her remaining in the community.[15]
The third assumption about community-based sentences is that they reduce the costs of corrections budgets by reducing the costs associated with the use of imprisonment. This argument may be based on the differences in the average annual/monthly/daily per-capita cost of keeping an offender in prison and that of an offender serving a sentence in the community, or on the differences between the cost of running custodial centres and the costs of the various community sentences.
Some of the literature that discusses community-based sanctions puts forward the view that the development and implementation of these sanctions also usually assumes that there can be some interchangeability of sanctions. This supposes that a framework can be developed which identifies some custodial and non-custodial punishments of roughly comparable severity which will not result in unwarranted sentence disparities. Once the principle of general equivalence among punishments is accepted, the choice of sanction can then be guided by the intended purposes of the sentences in each individual case. This means that different sentences can be imposed according to the variety of social threats and personal conditions which characterise offenders, and the needs of society. An acceptance of the interchangeability of punishments implies an acceptance that some offenders who commit similarly serious offences and have similar criminal records will receive different sanctions and that one offender would receive imprisonment while another would receive a community sentence.[16]
When examining the implementation of community sanctions, various commentators have identified factors or components that they see as requirements for successful implementation. Three components noted by one author are:
Another commentator has identified the following conditions which he considers must be met if there is to be increased use of community sanctions (in Canada):
Another requirement for the successful implementation of community sanctions is the need for the enforcement of the sanction and a serious response to any breach of the sanction. There must be a commitment to the enforcement of the sanction and adequate resources and mechanisms must be in place to deal with breaches.[19]
In many jurisdictions (including New Zealand) the penalty structure is uniformly stated in terms of the maximum sentence of imprisonment and/or fine that can be imposed for each offence. Other sanctions then tend to be viewed as alternatives. The consequence of this is that imprisonment is viewed as the pivotal sanction with all other dispositions falling short of total loss of liberty and therefore considered as forms of leniency.[20] It is often suggested that community sentences should not be viewed as alternatives to imprisonment but as sanctions in their own right.[21] More specifically, they should be sanctions that are designated in legislation as appropriate for certain kinds of cases (particularly for the more common offences for which a sizeable number of offenders are currently imprisoned). In other words they should not be add-ons to the system, but should be the presumptive sentence for many offences.[22]
In New Zealand there is limited legislative guidance as to the courts’ use of community-based sentences. The provisions in the Criminal Justice Act 1985 relating to the individual community-based sentences state that each one is available to the court where an offender is convicted of an offence punishable by imprisonment (and in the cases of community service and community programme the offender must also consent to the sentence). This of course is a wider criterion than specifying that community-based sentences shall only be imposed in lieu of a sentence of imprisonment that would otherwise have been imposed. There are also some general sentencing provisions in the Act regarding the use of non-custodial sanctions. These are sections 5, 6 and 7 which:
These directions say virtually nothing about community-based sentences per se and do not indicate which community-based sentence should be imposed in which circumstances, the severity ranking (if there is one) of those sentences, or how the particular length of a community-based sentence is to be determined. This is despite the fact that there is a significant difference for an offender (and for the justice system in terms of administration and cost) between a sentence of 50 hours community service and one of 6 months periodic detention.
The following chapters show that:
There are currently four community-based sentences in New Zealand, set out in the Criminal Justice Act 1985[23]:
These sentences can be imposed by the District or High Court but not the Youth Court. However, young offenders aged 15 to 16 years can be transferred from the Youth Court to the District Court for sentencing where the Youth Court has entered a conviction. The sentences of community service and periodic detention preceded the Criminal Justice Act 1985. Prior to 1985 New Zealand also had the disposition of probation in the Criminal Justice Act 1954, and community programme was originally named community care when it was introduced in 1985.
Under the Criminal Justice Act 1954, an offender convicted of an imprisonable offence could, instead of receiving a sentence of imprisonment, be released on probation for a period of at least 1 year and no more than 3 years (s6). The offender was placed under the supervision of a probation officer. The offender’s consent was not required. Release on probation was, strictly speaking, an order of the court rather than a sentence. Probation could be combined with a fine, a disqualification from driving order, or a motor vehicle confiscation order (s6(2)). Certain statutory conditions applied in all cases, and the court could impose a wide range of additional conditions, to ensure appropriate supervision by the probation service and guidance and assistance to the offender.[24]
The statutory conditions (s7) were that the offender was to report regularly to the probation officer, to have his or her place of residence and his or her employment approved by the probation officer, to notify the officer of any change of address, to comply with any direction of the officer requiring him or her not to associate with any particular person, or persons of a specified class, and to “be of good behaviour and commit no offence against the law”. The additional conditions to be imposed at the court’s discretion included paying prosecution costs, damages or compensation to the victim, applying for a prohibition order,[25] abstaining from the use of alcohol or drugs, not owning or possessing any specified article (e.g. a car), undergoing a specified course of training or education, additional conditions relating to residence, employment, or earnings, and any conditions the court thought necessary for ensuring good conduct or for preventing offending (s8). The probation officer could apply to the court for the remission, suspension, or variation of an additional condition, for the imposition of a new condition or an extension of the term of probation where that was originally less than 3 years, or for a discharge of the probationer (s9).
A breach of any of the conditions of probation was punishable with imprisonment (a maximum term of 3 months) or a fine (s10). The court could also then sentence the probationer for the original offence (s11). Treatment centres to give probationers specialist medical and psychological assistance came into existence from 1968. In 1979/80 over 70% of offenders released on probation were aged 20 years or less.[26] The Criminal Justice Act 1954, and with it the probation order, were repealed by the Criminal Justice Act 1985.
Periodic detention was first introduced in 1962 in an amendment
to the Criminal Justice Act 1954, as a residential measure available
for young
people aged 15 to 20 years who were convicted of an offence punishable by
imprisonment, or liable to be committed to prison
for failure to pay a fine
imposed by a Magistrate’s Court. It was to be for a maximum term of 12
months. The Act allowed
a fair amount of discretion in fixing the times and
frequency of attendance at a periodic detention
centre,[27] although the sentence
usually involved residence at a work centre from Friday evening (7 p.m.) to
Sunday morning (11 am), and attendance
at the centre for 2 to 4 hours on one
evening during the week, for a programme of work and activities under the
supervision of resident
wardens.[28]
It was not available if the offender had previously been sentenced to detention
in a detention centre or to borstal
training[29], or incurred a
custodial sentence of 1 month or more. Both a probation report and a medical
report were required before the sentence
could be imposed. A term of probation
for up to one year could be ordered to follow periodic detention.
While
at the work centre the detainees were to participate in such activities,
classes, or groups, or undergo such instruction as
the warden considered
conducive to that person’s reformation and training. It was intended that
much of the work would be
done around the centre itself, maintaining the grounds
and the buildings, but that offenders would also be involved on outside
community
work projects to help them develop some sense of obligation to the
rest of the community.
The Minister of Justice described it as being a
new type of sentence which would “provide a useful method of dealing with
young
louts, vandals and the like who may be headed towards a criminal career if
not diverted at an early
age”.[30] It was intended to
fill a gap between the custodial sentences of imprisonment, borstal training,
and detention in a detention centre
and the alternative non-custodial penalties
of a fine or probation. There was some similarity with the attendance centre
provisions
in the United Kingdom. To begin with, those receiving the sentence
were youths whose offences were mainly disorderly behaviour,
assault, wilful
damage, and fighting, these offenders being the intended target of the
legislation as stated by the Minister of
Justice.[31] By 1966 there were 4
work centres, for males only. From then on the sentence was subject to numerous
modifications.
In 1966 periodic detention became available as a sentence
for anybody over 15,[32] and
non-residential work centres, involving work in the community on Saturdays, were
established for adults. Later, non-residential
centres became available for
youths, and the distinction between residential and non-residential centres was
formalised in legislation
in
1975.[33] In some areas
non-residential detainees were also required to attend evening programmes (which
did not involve manual work) once
a week (usually Wednesday) although this never
became widespread. In 1974 the first centre for female offenders was opened.
Residential
periodic detention remained for 15 to 20-year-olds but began to be
phased out once it became possible for younger offenders to be
sent to
non-residential centres. In the 1980 Annual Report of the Department of Justice
it was announced that the remaining residential
centres would be closed down
progressively over the next 5
years.[34] Along with the removal
of the upper age limit for those on whom the sentence could be imposed, the 1966
amendments limited the group
of offenders excluded from the sentence (i.e. those
who had served a previous institutional sentence) to those under 21, and
permitted
the offender to be placed on probation concurrently with, and not
merely subsequently to, periodic detention, although the probation
period could
still continue for up to one year after the end of the periodic detention. By
this time the sentence was being imposed
for a greater variety of offences,
including burglary and car conversion. The 1975 amendment further reduced the
application of
the exclusion category to those required to attend at residential
centres only. In 1976 provision was made for reporting centres
to supplement
work centres and the prior requirement for a medical report to be considered by
the court was removed (unless the offender
requested it).
In the
Department of Justice Annual Report for 1974-75 the Secretary stated
that:
The sentence was meant for offenders who would otherwise have been sent to
prison, and one of its principal objects was to help keep
offenders in the
community whenever possible. On any Saturday we now have throughout New Zealand
over 1200 offenders working in
the community as periodic detainees. But many,
probably most, of these would not have gone to prison in any event, and would
previously
have been fined or sentenced to probation. So the sentence is not
being used principally for those for whom it was intended, namely
those who
would otherwise have gone to
prison.[35]
Periodic detention in its present form in the Criminal Justice Act 1985 is similar to the non-residential periodic detention introduced in 1966 (without the additional Wednesday evening requirement). As recommended in the Penal Policy Review Committee report the 1985 Act largely repeated the provisions in the 1954 Act. The provision which authorised an offender to request a medical examination before a sentence of periodic detention was imposed was deleted. Periodic detention may be imposed upon any offender over the age of 15 who is convicted of an offence punishable by imprisonment. It is for a maximum term of 12 months. The sentence requires the offender to attend a specific periodic detention work centre for up to 18 hours per week for the duration of the sentence, except for public holidays. No individual period of detention can be longer than 10 hours. The centre must be within reasonable distance of the offender’s place of residence. Generally the sentence involves reporting on Saturday to undertake community work, between 8 a.m. and 5 p.m., outside of the centre under the supervision of assistant wardens who are part-time employees of the Department of Corrections, although sometimes the court has specified a shorter day because of an offender’s particular circumstances. In recent years many centres have begun to provide work during the week, to the extent that about half the total periodic detention muster now reports on a weekday. It is also possible for periodic detainees to be directed to attend classes or groups. There are currently 60 periodic detention centres in New Zealand. The detainee is under the legal custody of the warden of the centre during the reporting period (s42).
The community work arranged for the offender must be undertaken:
(s60 (2)).
The work undertaken by detainees cannot include tasks normally performed by regular employees of the above organisations (s60(3)) and offenders are not entitled to any remuneration in respect of the work they carry out (s61). There is provision for a limited degree of flexibility in reporting times and days of attendance (s40(2)-(4)) and wardens have a certain amount of discretion to excuse attendance at certain times and may allow a 1 week break after a period of 3 months has been served (s41).
For breaches of periodic detention an offender is liable to a maximum term of imprisonment of 3 months or a maximum fine of $1,000 (s45).
In 1982 the Penal Policy Review Committee summarised the objectives of periodic detention as follows:
It is for those offences where a moderate punitive sanction is indicated, together with some degree of deterrence and denunciation. It also involves the concept of reparation to the community at large and is relatively cheap to administer. [I]t may come to be accepted as an appropriate penalty for most property offences, especially when used in conjunction with reparation or restitution to the victim. It has little incapacitative effect.[36]
The courts have generally regarded periodic detention as the most severe sentence available short of a custodial one (see for example R v Tevaga [1991] 1 NZLR 296, 297). In Wijlens v Police ((HC, Auckland AP, 20 June 1994, 17 TCL 39/10) the court stated that:
Considered in its wider context, it is clear that periodic detention was intended as a halfway house between full imprisonment on the one hand and some of the more liberal community-based sentences on the other. Periodic detention still retains a strong punitive element with intermittent confinement and a constant reminder to persons serving the sentence that they have offended against the community and have a debt to repay.[37]
The Criminal Justice Act 1954 provided for Periodic Detention Work Centre Advisory Committees chaired by magistrates. The other committee members were representatives from the Federation of Labour, the legal profession, the churches, Police, Department of Social Welfare, and the Probation Service. The committees provided advice about staff appointments, the work programmes to be carried out by detainees, and matters of general policy. These committees were the forerunners of the Criminal Justice Advisory Councils established under section 134 of the Criminal Justice Act 1985, which had a far broader range of functions relating to facilities and activities for all offenders serving custodial or community-based sentences. These Councils were abolished in 1993.
The inclusion of rehabilitative programmes into periodic detention is currently being piloted or under development in three areas: a violence prevention programme for Mäori offenders in South Auckland; a “Straight Thinking” programme[38] in Hamilton; and a programme targeting offenders with driving offences in Christchurch.[39]
In 1980 an amendment to the Criminal Justice Act 1954 was passed, establishing the sentence of community service. It came into effect on 1 February 1981. The introduction of this sentence had been promised in the Government’s 1978 election manifesto and according to the Minister of Justice’s speech when introducing the legislation in Parliament in 1979, it was in response to “a growing body of opinion that felt that in some instances it is appropriate to exact some form of community service from an offender”.[40] It also set out to replace a practice of doubtful legality under which the courts sometimes made community work a condition of probation.[41] It was acknowledged that it was similar to an order that already existed in the United Kingdom (since 1972). Community service was distinguished from periodic detention in two respects. Unlike periodic detention, an offender sentenced to community service would not be in the custody, or under the supervision, of a statutory officer, and there was no element of probation involved as there could be with periodic detention. The offender would be free from controls other than those related to carrying out the community service.[42] This was essentially saying that community service had less supervision and regulation than periodic detention. It was argued that in appropriate circumstances it could instil in an offender a greater sense of community responsibility.[43]
This was the first sentence in New Zealand in which a part of the responsibility for the supervision of an offender was given to people within the community and the only sentence for which the consent of the offender was to be obtained before its imposition. Under this sentence an offender convicted of an imprisonable offence may be sentenced to undertake community service for a period of between 20 and 200 hours. In addition to being satisfied that the sentence is appropriate having regard to the offender’s character and personal history and any other relevant circumstances, and that the offender understands the purpose and effect of the sentence and consents to it, the courts must also be satisfied that suitable service is available (s31). There is no requirement that the court consider a pre-sentence report before imposing sentence, although most judges insist on a written community service assessment covering the requirements of the sentence.[44] When the 1980 Amendment Act was passed the court was able to impose probation concurrently with community service, but only “if in the special circumstances of the case, the court is satisfied that the offender requires supervision” (s3(2)(b)). This particular provision was not carried over into the 1985 Act.
The hours of work must be performed within 12 months. Within that limitation, the nature of the work and the times at which it is performed are determined by agreement between the offender and the community agency for which the work is done, subject to the approval of the supervising probation officer.
The work must be undertaken:
As with periodic detention, those serving a sentence of community service are not to undertake tasks normally performed by regular employees of the above organisations (s60(3)) and offenders are not entitled to any remuneration in respect of the work they carry out (s61).
A breach of community service is punishable by a fine only, up to a maximum of $500 (s36).
The Penal Policy Review Committee stated that:
Community service orders constitute a less punitive sentence than periodic detention appropriate to those offences or offenders for whom the latter sentence is not indicated, but who require the impact of personal effort, and the interference with personal liberty which it entails. We see it as having less of a deterrent and denunciatory content than periodic detention, although these elements are present. It has a content of general reparation to the community and in some instances may benefit the victim. It costs little to administer and is also inexpensive in terms of human and social cost. It is flexible and can take advantage of the benefits offered by diverse cultural and ethnic groups. Because of the offender’s direct involvement with community agencies, he or she may be influenced by the good example and work, involving a rehabilitative element in the sentence in some cases. It has no incapacitative effect.[45]
The courts have viewed community service as ranking below periodic detention in severity, and as particularly appropriate where the gravity of the offence and the public interest do not require a custodial sentence or a sentence of periodic detention, and where there is either no apparent need for continuing supervision by a probation officer, or community service is regarded in the circumstances as having particular rehabilitative value (R v Saifiti [1989] NZCA 403; [1989] 3 NZLR 53).
Hall’s assessment is that:
The nature of the sentence is such that the criteria for determining the suitability of the sentence arise from the person of the offender and his or her circumstances, with rather less emphasis on the seriousness of the offending. It would appear to be an inappropriate sentence for the aggressive anti-authoritarian individual, or the inadequate excessively dependent person. There must be a measure of motivation and active consent. The sentence is also appropriate in cases where the offender lacks the means to pay a fine.[46]
Supervision and community programme
These two sentences were introduced in the 1985 Criminal Justice Act (with community programme then called community care). They replaced the probation order as provided in the Criminal Justice Act 1954. The two sentences were the result of the report of the 1981 Penal Policy Review Committee. Two of the terms of reference for the committee were to consider the means by which the incidence of imprisonment could be reduced, and to investigate means of increasing the availability of sanctions that kept the offender in the community.[47] The Committee believed that the community service order and periodic detention should be retained, but that the current probation order should be replaced by 3 new orders:
These new measures (in particular the “community care order”) represented, in the view of the committee, a further decentralisation of the justice system into the community. They showed an increasing commitment to the idea that anti-social conduct could not be remedied by isolating the offender from society and that, frequently, anti-social or criminal behaviour reflected social pressures brought to bear on, and sometimes aggravating, the personal circumstances of individuals.[49] The trend to community-based measures can also be seen as reflecting concern over the financial cost of imprisonment. The probation service was to have a central management role in these new measures and new responsibilities for matching offenders with programmes.
It is often claimed that the Penal Policy Review Committee provided the framework for the Criminal Justice Act 1985. There are good grounds for saying this, although the Act did not follow all the recommendations of the Committee’s report.[50]
The Minister of Justice in his introduction of the Criminal Justice Bill in 1983 stated that:
there have been [in the last 30 years] profound changes in social conditions and outlooks. In particular, there has been a lamentable increase in serious violence, including rape and other serious offending. We have become–and rightly so–much more concerned about the interests of the victims of crime. Again, if we expect offenders to live a law-abiding life we appreciate the need for much greater community involvement in dealing with offenders.
.........The objectives of the Bill are dominated not just by thoughts of reforming those who break the law but also by the need to protect the community from violent offenders, and to establish a more cost-effective criminal justice system with an increased emphasis on community participation and decision making, and with compensation as an effective sanction of first resort.[51]
The Minister’s introductory speech also stated that the Bill
will allow the courts to impose sentences more relevant to the 1980s and it will allow administrators to use those sentences as vehicles for programmes that will relate to the sources of reoffending.[52]
The Bill (Criminal Justice Bill (No 1)) was referred to the Statutes Revision Committee which studied it over the 1983-84 recess, receiving about 40 submissions. The main issues had been considered but the legislation lapsed when parliament was dissolved on 14 June 1984. The Criminal Justice Bill (No 2) was introduced later in the year by the Minister of Justice in the new Government. This Bill was based on the earlier Bill but also took into account the submissions on the No 1 Bill. The No 2 Bill attracted approximately 30 submissions in its select committee stage.
In accordance with the views of successive Governments, the Criminal Justice Act, as it became, contained 4 important sentencing principles in sections 5 to 7:
The Act introduced a twin-track policy of sentencing – dealing severely by way of imprisonment with people who commit serious offences involving violent or dangerous behaviour, and lowering the level of penal response to those who commit less serious offences, particularly property offences. However, the central directions of the Act, outlined above, were essentially confined to whether a custodial sentence should be imposed or not and did not give much direction about which community-based sentence should be imposed in which circumstances, and the relevant severity of each type of sentence, or indeed what their different aims might be. This is despite the fact that there is a great deal of difference to an offender and to society between a sentence of 9 months of periodic detention and one of 40 hours of community service or 4 months on a community programme.[53]
The Act (which came into force on 1 October 1985) abolished probation and introduced the 2 new community-based sentences (rather than orders) of supervision and community care. Supervision was very much as recommended by the PPRC. It had similarities with the probation order but with much of the previous rehabilitative framework stripped from it so that it was more of a surveillance mechanism. The name change was designed to emphasise the penal character of the sentence.[54] Community care aimed to combine the two recommendations for a treatment order and a community care order. In submissions on the Criminal Justice Bills (Nos. 1 and 2) Messrs Young and Cameron expressed their confusion about the nature and purpose of community care and their view that community care should be an additional condition of supervision. The Department of Justice viewed it as distinct because community care required the offender’s consent and was more broadly defined, and less structured and control-orientated, than supervision. It placed more emphasis on developing relevant programmes for offenders.[55]
Supervision
When it was introduced in 1985, supervision differed from the previous order of probation in some important respects. Unlike probation, supervision could not be imposed in conjunction with a custodial sentence or any other community-based sentence except periodic detention. Also, there was no provision in relation to supervision similar to that under the previous Act which allowed the payment of damages for injury, compensation for loss suffered through the offence, or court costs to be made a condition of probation. There was also provision under the 1954 Act for payments to be made within such period and by such instalments as might from time to time be directed by the probation officer. This allowed offenders to be prosecuted for a breach of probation if such payments were not made. Under the Criminal Justice Act 1985 it became possible to impose reparation, or compensation (as part of a fine), or court costs on an offender in addition to supervision, but these are separate penalties and cannot be formally linked as conditions of a supervision sentence. Another difference is that the minimum term of supervision is 6 months, compared with 1 year for probation.
The sentence of supervision may be imposed on an offender convicted of any offence punishable by imprisonment. The sentence is to be for a period between 6 months and 2 years and does not require the offender’s consent (s46) unless the court imposes a condition that the offender undertakes a specified course of training or education. The standard conditions of the sentence are broadly similar to those that applied under the 1954 Act when an offender was released on probation. They place an offender under the supervision of a probation officer , which entails reporting to a designated officer as and when required to do so (usually once a week in the initial stages and rarely less frequently than once a month), and obeying any directives from the officer which prohibit residence at a particular address, specified employment, or association with specified persons. The offender is required to notify the probation officer of where they live and work and any related changes (s49).
In addition to the standard conditions, the court can impose additional conditions such as:
There are no clear guidelines as to what the limits on “other conditions” may be. Under section 51 an offender (or any probation officer) may apply to the court for the remission, suspension, or variation of any conditions imposed by the court.
The courts have usually considered supervision to be appropriate for offenders who warrant some degree of supervision and control but whose offences are not serious enough to warrant periodic detention or a fully custodial sentence.[56] In a case involving sexual offending (R v Accused (CA406/92) [1994] 3 NZLR 157) the Court of Appeal stated that:
In any case where continued therapeutic counselling is desirable, if there is to be any departure from the approach of imprisonment the most likely possibility is a sentence of supervision of up to 2 years, on conditions, under s 46. The supervision of a probation officer is then involved, as is not the case with sentences of community care.[57]
Department of Justice Guidelines for Probation Officers issued shortly after the Criminal Justice Act 1985 came into force stated that community care, community service, and reparation should be perceived as community-based options of first resort, and where an offender is unable or unlikely to comply with the conditions of these sentences or does not consent to their imposition, then periodic detention and supervision can take the role of back-up community-based sentences.[58]
An offender who is subject to a sentence of supervision and who contravenes or fails to comply with any condition of the sentence commits an offence and is liable to a fine not exceeding $500 (s52(1). There is not the option of imprisonment which was available for breach of probation under the Criminal Justice Act 1954.[59] The judge may, in addition to or instead of sentencing the offender for that offence, do either or both of the following:
Although a breach of the supervision sentence by itself does not warrant imprisonment, a probation officer can apply for a review of the sentence where the offender has been convicted of a breach under section 52. The court may then, having regard to a number of considerations, remit, suspend, or vary any conditions of the sentence, or impose any additional condition, cancel the sentence, or substitute any other sentence that could have been imposed for the original offence (which includes imprisonment) (ss64-66).
Community programme
The sentence of community programme (termed community care until 1 September 1993) is available for any offence punishable by imprisonment, provided the offender consents. It requires the offender to undergo a programme, which if it is residential must not exceed 6 months and if it is non-residential must not exceed 12 months (s53(1)-(2)). A programme is defined as:
The inclusion in the above definition of Mäori terms and concepts and a wide range of options within Mäori social structures indicates that the sentence was viewed by the legislature as being particularly appropriate for young Mäori offenders who may not respond to the forms of discipline provided by more traditional penalties. The Department of Justice report to the select committee considering the Criminal Justice Bill (No 2) recommended this inclusion of Mäori terminology in the definition so that the legislation would give the Mäori community recognition that it had a contribution to make in assisting the courts to make suitable dispositions, involving alternatives to imprisonment, for Mäori offenders.[61] However, the sentence is not limited to placement in an ethnic or cultural group, and can potentially involve any individual or any community group.
The court is not permitted to impose a sentence of community programme until a report on the nature and conditions of the programme available to the offender is given by or through a probation officer (s54). The court, the offender, and the person or agency conducting the programme, known as the sponsor, must all consent to its terms. The Act makes it clear that consent to the imposition of the sentence does not constitute consent to any specific medical or other treatment or surgical procedure that might be part of the programme and that separate consent for such treatment is necessary (s56). The report on the proposed programme may be included in a pre-sentence report, but in practice it is often provided by way of a written contract negotiated between the offender and the sponsor and signed by them. The contract states the name of the sponsor and the programme, the objectives of the programme, the tasks to be undertaken in pursuit of those objectives, and the term of the placement. A community programme may involve no work whatsoever (although it frequently does[62]). The Act does not state who has legal custody or control of the offender as it does with community service and supervision (where the probation officer has a legal supervisory role) or periodic detention (where the offender is in the legal custody of a warden of a periodic detention centre). This is a matter agreed between the court, the offender and the community representative.
The Minister of Justice in introducing the new criminal justice legislation stated that the new sentence of community care was “most likely to be used for members of minority groups and persons in need of some form of treatment”.[63] The courts have frequently considered the sentence of community programme as most appropriate for minor offences because they view it as principally rehabilitative rather than punitive and therefore not able to meet the requirements of punishment and deterrence for more serious offences. The Court of Appeal has stated (in R v Grennell (CA211/88, 12 September 1988)) that “clearly community care is more oriented to rehabilitation of the offender in a supportive setting than to a community-based sentence under which the offender is also required to contribute significantly through serving the community”.[64] Hall’s assessment is that:
The objective of the sentence is thus to place the offender into a rehabilitative environment where it is envisaged that he or she will respond positively. With its main thrust being rehabilitative, the sentence would appear to have little if any deterrent or retributive effect.[65]
Nevertheless, the average seriousness of cases involving non-traffic offences that resulted in a sentence of community programme has been greater throughout the 1990s than for the other community-based sentences,[66] and the percentage of cases resulting in community programme that have been for violent offences has been higher than that for cases resulting in periodic detention and community service (although not supervision).[67]
Unlike the situation with the other three community-based sentences, there is no offence of breach of community programme. The sentence may be varied or cancelled by the court (see section on reviews of sentences below).
As a general rule community-based sentences can be imposed only for offences that are punishable by imprisonment. There are some exceptions to this rule.
The Criminal Justice Act 1985 prohibits the imposition “at the same time” of more than one type of community-based sentence for the same or different offences, with the exception of periodic detention and supervision.[68] This permissible combination originates from the ability to impose both periodic detention and probation under the Criminal Justice Act 1954. All community-based sentences may be combined with a fine and/or reparation (s13). The consequence of this is that the amount of an order of reparation can influence the nature and extent of a community penalty imposed contemporaneously.[69]
The original 1985 Act did not allow the imposition of the combined sentences of periodic detention plus supervision and reparation for the same offence. Section 13 only allowed the court when imposing reparation or a fine or both to also impose one kind of community-based sentence (or a custodial sentence). Since section 11 required that the court impose reparation in cases where there had been loss of or damage to property (later, in 1987, to also include cases involving emotional harm to any victim), unless it was inappropriate, this meant that where a court considered that an offence was serious enough to warrant periodic detention, the court had the option of also imposing a sentence of supervision only if reparation was inappropriate. Section 13 was amended in 1993 (Criminal Justice Amendment Act (No 2)) to allow the imposition of reparation or a fine or both in combination with any one kind of community-based sentence or the combination of periodic detention and supervision.
In 1993 the Criminal Justice Amendment Act enabled the courts to impose a community-based sentence cumulative on a sentence of imprisonment of 12 months or less, provided that the duration of the community-based sentences does not exceed 12 months (ss39, 30, 47, 55). The Act also directed that a mixed sentence must not be imposed if the court would not have imposed a sentence of imprisonment in the first place, and that the total duration of the combined sentences must not exceed the term of imprisonment that would otherwise have been imposed for that offence (s 8A). The purpose of this power to impose combined sentences was, presumably, in part to encourage the courts to shorten the length of sentences of imprisonment. It is likely that it was also to take into account the fact that offenders serving prison sentences of 12 months or less do not have conditions imposed by District Prisons Boards on their final release date. The new provision enables the same result to be achieved by the courts where they consider it would be helpful for an offender released after a short term of imprisonment to have some sort of supervision as a follow up. In fact when both imprisonment and a community based sentence are imposed, in about 95% of cases the community-based sentence is supervision (see next section).
In 1993 the Criminal Justice Amendment Act allowed judges to suspend sentences of imprisonment of not less than 6 months and not more than 2 years. Prison sentences can be suspended for up to 2 years (s21A(1)). A suspended sentence can be combined with any one of the community-based sentences or with both periodic detention and supervision (s13(4)).[70]
Where an offender serving a sentence of community programme or community service is subsequently sentenced for another offence to detention of any kind (including periodic detention), the sentence of community programme or of community service is automatically cancelled unless the court orders otherwise (s63(1)). Where an offender serving a sentence of periodic detention or supervision is subsequently sentenced for another offence, the sentence of periodic detention or supervision continues unless the court specifically cancels it, or the subsequent sentence involves corrective training or a prison term of more than 12 months, in which case it is automatically cancelled (s63(2)). Where an offender is subject to a community-based sentence which is cumulative on a term of imprisonment and is subsequently sentenced to a further period of imprisonment, so that the total period of imprisonment exceeds 12 months, the community-based sentence is automatically cancelled (s63(3)).
Reviews of community-based sentences
Section 64 of the Criminal Justice Act provides for a probation officer to apply to the court for a review of any sentence of periodic detention, community service, or supervision where the offender has failed or is unable to comply with any condition or requirement of the sentence. Section 66 prescribes the powers of the court on a review. If the court is satisfied that the ground of the application has been established and, having regard to a number of other considerations, the court may remit, suspend, vary any conditions; or impose any additional condition of the sentence; cancel the sentence; or substitute any other sentence that could have been imposed for the original offence (which includes imprisonment or a different community-based sentence). The exception is where the sentence under review was imposed following a fines default (this only applies to periodic detention and community service[71]). In this latter situation the court may substitute a term of imprisonment for a period not exceeding the maximum term that the offender could have received if imprisonment had been imposed under the Summary Proceedings Act for the fine default (rather than periodic detention or community service) but cannot impose a different community-based sentence or any other new sanction.
The sentence of a community programme may also be varied or cancelled by the court where the offender is unable to comply or has failed to comply with any of the conditions of the sentence, or the programme is no longer available or suitable for the offender, or continuation of the sentence is no longer necessary in the interests of the community or the offender. If the court cancels the sentence it may substitute a new sentence of community programme or any other sentence that could have been imposed for the original offence (s57).
Role of the probation service[72]
The legislative changes bringing about more community involvement with offenders required major shifts in the roles played by the Probation Division of the Department of Justice (now the Community Probation Service of the Department of Corrections). Where once probation was the major domain of probation officers’ work, the alternative sentences introduced in the 1980s (along with new parole provisions) have required an increasing emphasis on community liaison roles rather than work with individual clients, while the range and volume of reports which probation officers supply to courts and other bodies have also expanded. While casework with individual offenders remains an important element of the probation officer’s job, the emphasis has become much less on providing a direct service to clients (which requires a wide range of expertise) and more on linking them with appropriate programmes or treatment services.
This shift towards greater community involvement in the operation of non-custodial sanctions was set out in the report of the 1981 Penal Policy Review Committee. Among its “guiding principles of penal policy” the committee stated that:
The penal system should make use of appropriate organisations and activities within the community rather than establish parallel services to deal with and support offenders”.[73]
Consistent with this principle, it recommended that the Probation Service should become:
...a co-ordinating and guiding resource link with those who can assist in the supervision and rehabilitation of offenders, acting as “broker” to advise the courts of the services available, and to match the offenders with programmes designed for their support and reform.[74]
In fact, with the new sentence of community service which came into effect on 1 February 1981, the Probation Service was already beginning to change in this direction, with finding and liaising with sponsors becoming a significant part of probation work.
While some of the specific proposals of the Penal Policy Review Committee in respect of the probation service and community sentences were not implemented, the overall direction of the report was reflected in the legislative provisions of the Criminal Justice Act 1985. The scope for community participation in statutory programmes for offenders was greatly increased, and the probation service was made responsible for developing and co-ordinating such participation. The duties of probation officers were set out in s125 of the Act and include major components of community work as well as the administration of sentences.
The Department of Corrections is currently developing Integrated Offender Management (IOM), involving a co-ordinated approach to managing offenders across the prison, community probation, and psychological services, targeted at reducing reoffending. There will as a consequence be more involvement of probation officers in the selection, delivery, and monitoring of programmes for offenders. This will have the greatest impact on the management of the sentences of supervision and community programme. For each offender there will be an assessment process to determine risk of re-offending and criminogenic needs. This will be fed into the pre-sentence report and the development of a sentence plan with needs-based interventions. Probation staff will be involved in the review and revision of sentence plans.
Children Young Persons and Their Families Act 1989
As stated at the beginning of this section, community-based sentences are not available for young offenders under 17 years dealt with by the Youth Court. That court may, however, make orders and the range of orders includes a community work order and a supervision order. The community work order is similar to a sentence of community service, requiring the consent of the young person, and involving community work of between 20 and 200 hours to be performed within 12 months. It can be performed under the supervision of a social worker or an approved community organisation (s298).
The supervision order is similar to the sentence of supervision. Young offenders may be placed under the supervision of a social worker or a specified person or organisation for a period of up to 6 months (ss283(k), 304). There are standard conditions that apply to these orders and the court may impose additional conditions which include treatment, or psychiatric or psychological counselling or therapy, subject to the young person’s consent if 16 years or over, or the consent of a parent or guardian in other cases (ss305-306). There is also a supervision with activity order which shares some similarities with elements of the community programme sentence. A young person, with his or her consent, may be placed under the supervision of a person or organisation, on a part-time or full-time residential basis, and be required to undertake a specified programme or activity. The maximum period is 3 months (ss307-308).
The Criminal Justice Act 1985 provides sentencing courts in New Zealand with a wide range of sentencing options for cases involving imprisonable offences. As set out in the discussion above, each of the community-based sentences, as introduced, was seen as suitable for meeting different offender needs and sentencing objectives, although that has not been specified in legislation. Periodic detention was seen as appropriate for offences requiring a fairly severe degree of punishment short of imprisonment and for offenders in need of discipline. Community service was seen as less demanding than periodic detention for less serious offenders who could provide some service to the community and could be trusted to work with limited supervision alongside community groups. Supervision as a revamped form of probation was seen as being suitable for offenders at some risk of reoffending in the absence of surveillance and control over their lifestyle, and able to assist in ensuring the payment of fines or reparation. Community programme was seen as appropriate for offenders who would respond to a structured and tailored programme in a community environment under the direct guidance and support of an appropriate community sponsor able to exert a positive influence on them. It was seen as having the potential for being particularly useful for young Mäori offenders. With the exception perhaps of periodic detention in the way it came to be managed as a sentence, these community-based sentences had a rehabilitative element incorporated in them.
In any one case the judge has a broad range of sentences from which to select an appropriate sentence to fit the individual circumstances of the particular offender and the offence or offences under consideration. Within the community programme and supervision sentences there are a wide range of possible terms and conditions that can be applied to offenders. This amounts to a considerable level of judicial discretion in the sentencing process. There are few constraints as far as the legislation is concerned. Although the courts themselves have indicated in broad terms through judgments the type of offender for whom each sentence is appropriate and how the sentences rank in terms of severity, there are no definite statements as to their purposes and the circumstances in which each one is to be applied.[75] The manner in which the courts have exercised their discretion in respect of community-based sentences is examined later.
3. Previous Reviews of Community-based Sentences
As outlined in section 2, the range and nature of community-based sentences in New Zealand altered substantially with the introduction of community service in 1981 and the provisions for supervision and community care/programme in the Criminal Justice Act 1985. Between 1981 and 1993 the former Department of Justice conducted a number of reviews of the imposition of these sentences and their effectiveness in achieving stated objectives. Some of the key findings of these reviews are discussed below. A fuller description is contained in Appendix 2.
1981
Lee (1981) conducted the first review of community service as a background paper for the Penal Policy Review Committee.[76] It was found that since the introduction of community service there had been a steady increase in its use. The predominant offence category that resulted in community service was offences against property.[77] Approximately 50% of orders involved between 51 and 100 hours community service.[78] 52% of those sentenced to community service also received other sanctions (predominately disqualification from driving and/or probation). Approximately 80% of community service placements were performed “at or for any hospital, or at or for any charitable, educational, cultural or recreational institution or organisation”.[79]
During
February and March 1981, nearly a third of all those sentenced to community
service were female. This proportion had decreased
by July/August to a quarter
(25.5%). Approximately 2% of males and 10% of females were taught a new skill
in order to carry out
their community service. During the first two months of
the availability of community service nearly 50% of those sentenced to community
service were Maori or Pacific Islanders. Again, this proportion had decreased
by July/August to 38%. 40% of offenders sentenced
to community service were
under 21 years of age.[80]
1984
Community service orders were also examined in
Leibrich, Galaway, and Underhill (1984), Community Service Orders in New
Zealand, which comprised three research studies. Leibrich analysed the use
of community service in the first
study.[81] The majority of
convictions resulting in community service were for property offences (55%),
followed by traffic offences (27%),
and offences against the person (16%). An
additional sentence of probation, disqualification or fine was given to just
over half
(52%) of the group. The average sentence length was 89 hours, with
54% of those sentenced to community service being given between
51 and 100
hours.
The community service group was convicted of more serious
offences, when compared to the seriousness ratings of ‘all offences’
generally.[82] Within the
‘all offences’ category less than half (47%) of all offences had a
seriousness rating of 70 or more. However,
77% of the community service group
offences were rated 70 or
more.[83]
The gender and
ethnicity of those sentenced to community service were similar to that observed
by Lee (1981). One-third of this population
was female although only one in
seven of all offenders at the time were female. Similarly, 41% of the community
service population
were Maori whereas 33% of offenders were Maori.
[84]
The second study was a survey
of the experiences and opinions of people connected with the sentence of
community service (Leibrich,
Galaway and Underhill, 1984). Interviews were held
with samples of judges, probation officers, community sponsors and offenders.
One issue to emerge from the survey related to the most appropriate place of
community service in the sentencing tariff. There
was no consistent view as to
where community service should be located. Most respondents felt that community
service fell between
a fine and periodic detention. However, others felt
community service was more appropriately located between periodic detention
and
prison. Several probation officers expressed the view that community service
was a ‘soft
option’.[85]
Another
issue was whether or not community service was seen (or should be seen) as an
alternative to other sentences when others were
not considered appropriate, or
should be recognised and utilised as a sentence in its own right. The provision
of an alternative
to custodial sentences was the aim least often seen as being
accomplished. The predominant response was that community service was
(and
should be) viewed as an ‘alternative’ to other non-custodial
sentences deemed inappropriate for particular offences/offenders.
Key factors
in deciding on ‘appropriateness’ were:
• the ability of an offender to pay a fine [if a fine would cause hardship, the recommendation would be for community service];
• the seriousness of the offence [a fine was viewed as more appropriate for less serious offences];
• practical difficulties for the offender in terms of sentence compliance; or
• if periodic detention was unavailable in a particular
area.
Positive reasons for choosing community service (for example, the
offender had particular abilities that could contribute to the community)
were
also provided by both probation officers and the judiciary (albeit to a much
lesser extent).[86]
Leibrich, in the third research project undertaken in 1984, examined
recidivism in relation to the sentence of community
service.[87] In order to provide a
comparable context, a sample of persons sentenced to non-residential periodic
detention was chosen as a second
sentence group. Reconviction was defined as a
court appearance resulting in a conviction during the year following the
sentence
data.
Overall reconviction rates were 38% for the community
service group and 59% for the periodic detention group. However, it was not
possible to infer that the sentence of community service produced lower
reconviction rates than the sentence of periodic detention.
This was because
reconviction rates varied significantly when the samples were
disaggregated.[88] The review
suggested that, given the impact of other factors (e.g. previous criminal
history, severity of previous sentences, number
of previous convictions, age at
first conviction, type of offence, seriousness of offence), reconviction rates
were unlikely to provide
sensitive estimates of the effectiveness of a
sentence.[89]
Bradshaw
produced a regional examination of the use of the sentence of community service
in 1984. The aim of this review was to seek
evidence of the extent to which
community service was utilised as an alternative to imprisonment in Otago and
Southland.[90] Results indicated
that community service was imposed on offenders who would have been imprisoned
if community service had not been
available, particularly female
offenders.[91] The community
service group had less serious current offences than those sentenced to prison
or probation but more serious offences
than those sentenced to periodic
detention or a fine.[92] In the
author’s view this indicated that a ‘hierarchy of penalties’
did not exist:
That is, contrary to what is often assumed, there is no ladder:
prison/periodic detention/community service/probation/fine, according
to the
seriousness of offence, in terms of the maximum
penalty.[93]
The examination
of non-criminal variables indicated that individuals with dependants were more
likely to be sentenced to community
service. Unemployed persons were also more
likely to receive community service rather than a fine. Overall,
Bradshaw’s results
indicated that the community-based sentencing options
existed as a ‘cluster of sentences’ utilised as alternatives to
imprisonment but for different types of offenders. However, the review did not
determine any inherent value in the community service
sentence that
distinguished it from other alternatives to
imprisonment.[94]
1986
McDonald’s report Sentencing Under the Criminal Justice
Act 1985: The First Six Months
[95] indicated that the judiciary
did respond to the shift in emphasis, from custodial to community-based
sentencing, of the Criminal
Justice Act 1985. During the first six months after
the Act came into force there was a 3% decrease in the proportion of charges
resulting in custodial sentences compared to the period 1 October 1984 to 31
March 1985.
In the first six months there was a 1% increase in the use of
periodic detention with 1,092 more charges resulting in that
sentence.[96] The sentence of
community care was imposed in only a small proportion (2%) of charges resulting
in conviction and sentencing in the
first six months of the new Act. Just over
half (54%) of the charges were for property offences. The majority of community
care
sentences were non-residential (79%) and 64% were for a period of six
months or less.[97]
2.6% of
police prosecuted cases involving Mäori offenders received a community care
sentence. This was twice the rate of cases
involving non-Mäori offenders
(1.3%). Approximately 80% of cases that resulted in a sentence of community
care involved male
offenders compared to 18% for female offenders (in 2% of
cases the offender’s gender was unknown). For cases resulting in
community care, 61% of the offenders were aged under
25.[98]
In the first six months of the Criminal Justice Act 1985 supervision was less likely to be imposed than probation had been previously, as 7% of charges received a supervision sentence compared to 12% of charges that had received probation in the period October 1984 to March 1985.[99] The majority of supervision sentences were for offences against property (71%), with offences against the person accounting for 8% of sentences imposed.[100] For 44% of charges incurring supervision, this was the only sentence. Additional sentences imposed in conjunction with supervision were periodic detention (37% of the charges), reparation (11%), driving disqualification (11%) and community service (1%).[101]
1988
The increase in the imposition of periodic detention was also
noted in The Impact on Sentencing of the Criminal Justice Act 1985 (Spier
and Luketina, 1988). The proportion of cases resulting in periodic detention
doubled between 1982 (at 6%) and 1987 (at 12%).
However, there was no decrease
in the proportion of offenders given a custodial sentence over that same period.
Nevertheless, the
report commented that there was evidence to suggest that
periodic detention did provide an alternative to custodial sentences. Analysis
revealed that during the years in which the proportion of violent offenders sent
to prison dropped, more offenders were sentenced
to periodic
detention.[102]
A decrease
in the frequency of the imposition of supervision (compared to probation) was
noted in Spier and Luketina’s review.
In each of the years 1983 to 1985
(up to 1 October), 10% of convictions resulted in the offender being placed on
probation (exclusive
of convictions resulting in probation plus imprisonment
which was prohibited as a sentencing option under the new Act), whereas in
1986
the figure for supervision was 8% and in 1987,
9%.[103] Spier and Luketina
explained the decrease in the imposition of supervision by reference to the
following changes made by the Criminal
Justice Act 1985:
Spier
and Luketina argued that the last two amendments listed above were the most
influential.[104] This was
because the major contributing factor to the lower use of supervision compared
to probation was the less frequent use of
supervision in conjunction with
periodic detention than was the case with probation. The biggest drop was in
the concurrent use
of periodic detention and probation/supervision for property
offences. At the same time, the number of cases resulting in periodic
detention
plus compensation/reparation increased
significantly.[105]
Despite
the lower use of supervision compared to probation, the proportion of all cases
which resulted in supervision as the principal sentence (which excluded
sentences of supervision given in conjunction with other community-based
sentences or with imprisonment) was slightly
greater than that for
probation.[106]
In 1987
supervision was imposed predominately for offences against property (49.5% of
total supervision cases). However, only 13.2%
of total offences against
property processed by the court in 1987 resulted in the sentence of supervision.
The second largest offence
category among cases which received supervision was
offences against the person (17%), representing 11% of the total cases involving
offences against the person. 58% of offenders received a sentence of between 9
months and 1 year.[107]
The low use of community care was again shown in Spier and
Luketina’s review. Community care was imposed in only 1% of cases
in 1986
and 0.8% of cases in 1987. The authors suggested that the low use of community
care reflected either a lack of confidence
in the sentence, or insufficient
resources within either the community or the Department of Justice to provide
and organise community
care programmes for
offenders.[108]
The gender
differential was almost identical to that found in McDonald (1986), with 81% of
cases in which a sentence of community
care was imposed involving male offenders
and 18% involving female offenders. Females were marginally more likely to
receive community
care than males. Nearly 60% of offenders sentenced to
community care were under the age of
25.[109]
Property offenders
and offenders convicted of an offence against the person were the most likely in
1987 to receive a sentence of
community care with just under 2% of offenders in
each of these categories given this sentence. Of those sentenced to community
care, more than 40% were property offenders and 18% were offenders against the
person. Mäori offenders (at 1.8%) were almost
twice as likely to receive a
sentence of community care than caucasian offenders (at 1.0%). However, despite
the high number of
Mäori receiving community care a very small number of
community care sentences were recorded as Maatua Whangai placements (66
out of
1,861 community care sentences). The majority of community care programmes
(1,378) were
non-residential.[110]
Spier
and Luketina explored the issue of what sentence would have been imposed if
community care had not been introduced. Their analysis
indicated that the
introduction of community care did not result in any decrease in the proportion
of offenders receiving any other
sentence except for
fines.[111] No evidence suggested
that community care was imposed as an alternative to a custodial sentence or to
any other community-based
sentence. Rather, if community care was considered a
more severe penalty than a fine, then the introduction of community care had
resulted in an increase in the severity of the sentences imposed on offenders
who would have otherwise received a monetary
penalty.[112]
Recommendations aimed at increasing the responsiveness of the
sentences of community service and community care to Mäori, were
presented
in Jackson’s 1988 research report The Mäori and the Criminal
Justice System A New Perspective: He Whaipaanga Hou Part 2. The report
stated that:
their [the sentences of community service and care] implementation has often caused considerable anger as Mäori people see the intent of the legislation frustrated by bureaucratic and judicial insensitivity.
and
probation officers frequently reject community service or care proposals
simply because they do not satisfy certain administrative
criteria of
accountability or appropriate supervision
...[113]
1990
Despite the lower likelihood of an offender receiving periodic detention combined with supervision, Asher and O’Neill (1990) in their research project, Community Involvement with Offenders: A Discussion Paper[114] found there to be a perception that the ability to combine periodic detention with supervision maintained the credibility of the sentence of periodic detention. This was because, while offenders were contributing back to the community through their work projects (reparation), in an environment involving some element of penalty, they were also able to obtain help to address their personal difficulties. Credibility was also maintained by the possible penalty of imprisonment for breach of the sentence, which was not the case with the other community-based sentences.[115]
Asher and O’Neill found that, generally, the sentence of periodic detention was viewed as one of the ‘major successes of the penal system’. In addition to its ongoing credibility, described above, periodic detention was considered to ‘run efficiently’ and ‘relatively inexpensively’ (in contrast to prison). However, the respondents did offer two suggestions to expand on the then current format of periodic detention. Firstly, a suggestion was that periodic detention work projects should be conducted on weekdays as well as Saturdays. This was justified on the grounds that ‘many of those undergoing periodic detention are currently unemployed’ and that the availability of periodic detention on more than one day would ‘discourage the build up of criminal subcultures’. Development of the sentence of periodic detention to include ‘social skills training’ and ‘personal growth opportunities’ was the second suggestion presented. Concern was also expressed regarding the number of ‘difficult’ offenders on periodic detention, although this was not discussed in any detail.[116]
The issue of whether or not community service was imposed as an
alternative to imprisonment was examined. In contrast to Bradshaw’s
(1984) conclusions, Asher and O’Neill found that the general perception
was that community service was being imposed as an
alternative to fines and,
therefore, on first offenders or those convicted of minor charges and
drink-driving offences. Consequently
community service was viewed as a
“soft option”, inappropriate for “serious” offenders.
Other issues highlighted
in this research included:
• duplication between the sentences of community service and periodic detention in that they were seen to be ‘fulfilling the same purpose and having the same effect’;
• community service being regarded [by some] as a ‘cheap and less effective form of periodic detention rather than as a genuine attempt to involve the community’;
• inadequate administration of the sentence. For example, difficulties in identifying sponsors, sponsors hesitant about supervising community service workers in case they were later required to appear in court as witnesses when there was a breach of the sentence, and ‘poor communication between probation officers and sponsors’;
• breach procedures were of concern as the only penalty available was the imposition of a fine not exceeding $500. If community service was being utilised as an alternative to fines, then the breach penalty was considered ‘unworkable’;
• some of the judiciary and probation officers interviewed felt that
the credibility of community service would be strengthened
if it could be
combined with
supervision.[117]
Asher and
O’Neill’s research identified a number of concerns expressed by
probation officers regarding the sentence of
supervision. This was despite the
probation officers’ view that supervision was the most important sentence
administered by
the Probation Division because of the sentence’s
flexibility and the discretion given to probation officers regarding the type
of
assistance they could provide. The concerns were:
• the status and effectiveness of the sentence of supervision were
being undermined by ‘case-loads, report writing, administrative
duties and
other responsibilities of probation officers’. These were seen to
threaten the adequate supervision of offenders
and therefore the credibility of
the sentence;
• the inability to combine supervision with community service or to
make community work a condition of supervision. This posed
practical
difficulties for probation officers, especially in rural areas where periodic
detention was unavailable. It may also have
resulted in lost opportunities to
address the various difficulties in offenders’ lives (e.g. alcohol or drug
use) when judges
sentenced them to community
service[118];
• many probation officers felt that the lack of the option of
imprisonment upon breach of supervision weakened the credibility
of
supervision;
• a perception that the judiciary did not regard supervision as a
punitive measure.[119]
A
slightly different perspective was obtained in this research from community
sponsors. Sponsors expressed the view that supervision
with special conditions
attached was preferable to a community care sentence because probation officers
retained overall responsibility
for offender compliance with the
sentence.[120]
The suggestion that the sentence of community care was not being
used as originally intended (i.e. as an alternative to imprisonment)
arose again
in Asher and O’Neill’s (1990) research. Although their respondents
expressed support for the sentence of
community care, there was recognition that
the sentence was imposed infrequently and the view that, when it was imposed, it
was as
an alternative to fines. Additionally, respondents felt that community
care had involved predominately ‘structured treatment
regimes’
rather than the placement of an offender into the care of an individual, whanau,
or local group.[121]
A
legislative fault was also cited as limiting the development of the sentence of
community care. The six-month time limit imposed
on the residential component
of a sentence was seen as a major drawback by agencies that provided long-term
residential treatment
programmes. It resulted in offenders leaving the
programme at the end of six months, with the attitude that they had “done
their lag”. Other concerns expressed were confusion over the role played
by the probation service in the monitoring of community
care, especially when
breaches did not constitute an offence, and the uncertain availability of
community groups or individuals willing
to provide the required care for this
sentence to operate
effectively.[122]
1991
The increase in the imposition of periodic detention was again reported by Spier, Luketina and Kettles (1991) in Changes in the Seriousness of Offending and in the Pattern of Sentencing: 1979 to 1988. [123] As periodic detention became a much more frequently utilised sentence, two distinct themes had emerged. Firstly, offenders were sentenced to periodic detention for offences that were less serious on average than those sentenced to community care and supervision,[124] with the average offence seriousness for cases resulting in periodic detention decreasing by 12% between 1979 and 1988.[125] The authors comment that this finding “differs from the generally accepted view that periodic detention is the sentence that is next in severity to a custodial sentence”.[126] This also raised the possibility that some judges were now sentencing offenders to periodic detention relatively early in their offending histories compared to traditional practice. This raised the risk that these offenders could be fast-tracked towards imprisonment by other sentencing judges who would rank a previous sentence of periodic detention as higher in severity and therefore consider that the next sentence should be a custodial one.[127]
The second theme to emerge from this report was that, despite the decrease in the average seriousness of offences, as the numbers of those sentenced to periodic detention increased, so did the numbers of serious offenders. In 1979 there were 44 offenders who were sentenced to periodic detention after being convicted of an offence with a seriousness rating greater than 200. In 1988 there were 174 offenders in this category who received a sentence of periodic detention.[128] This reflected one of the principal conclusions of this report, that there had been a significant increase in the seriousness of the offending resulting in convictions between 1979 and 1988. The authors commented that “it is clear that the New Zealand justice system is having to deal with a much higher number of serious offenders than in the past”.[129]
The seriousness of offences resulting in probation/supervision
(as the most severe sentence imposed) was also examined in this report.
The key
finding was that offenders were, on average, sentenced to supervision for more
serious offences than was previously the
case for probation. Overall, the
average offence seriousness for cases which resulted in probation increased by
22% between 1979
and 1988. The actual number of offenders sentenced to
supervision for offences with seriousness scores of greater than 100 increased
by approximately 87% between 1979 and 1988, although numbers were relatively
small.[130]
At every level
of offence seriousness there was a decrease in the proportion of convictions
resulting in probation/supervision as
the most severe sentence between 1979 and
1988, although since the Criminal Justice Act 1985 the proportion of convictions
resulting
in supervision as the principal sentence was starting to
increase.[131]
Ongoing concern over both the limited development and low imposition of the sentence of community care resulted in the convening of a community care working party by the Department of Justice (Probation Division) in 1991. A number of issues were covered and various recommendations presented.[132] One recommendation to encourage increased use of community care was an improved focus on the effective marketing of the sentence.[133]
The incorporation of a module on “Whanau, Hapu, Iwi Development” into training for probation staff was also recommended in order to encourage increased use of community care. The working party was concerned that the ‘original intention’ of community care of strengthening whanau, hapu and iwi links, and the placement of offenders within tribal networks rather than within institutional structures, had not been translated into action.[134]
The
working party examined the appropriateness of changing the name of the sentence
of community care and decided in favour of change
on the following
grounds:
The primary factor influencing our decision was the need to move from a
concept to a sentence. The general philosophy of “community
care”
has become a well utilised concept in a number of fields such as health, aged
care and signifies movement from within
institutional state operated structures,
to care within the community. While the desirability of such devolution is a
feature of
the current sentence ...... it is felt that the name should reflect
in some way the specific nature and purpose of the sentence,
rather than the
philosophy which underpins
it.[135]
The working party
was also conscious of the requirement of the Criminal Justice Act 1985 for the
offender to undertake a “programme”
provided by a community sponsor.
The final recommendation, therefore, was for the sentence of “community
care” to be
re-named “community programme
order”[136], which was
implemented in the Criminal Justice Amendment Act 1993.
Asher and Norris (1991) examined reconviction rates in Recidivism After Custodial and Community Based Sentences.[137] Their figures were drawn from samples of 400 offenders sentenced to each of the sentences in 1989. Reconviction was defined as those who received an additional conviction within 12 months of the original sentencing date. For the sentence of supervision the actual proportion of the sample reconvicted was 46.5%, for periodic detention it was 54.8%, for community care 53.5%; and for community service 26.8%.[138]
1992
In Imprisonment as “The Last Resort” The New Zealand Experience (1992) concern was expressed regarding the increasing use of periodic detention which was the most common community-based sentence imposed in 1991 (61% of all community-based sentences). There were two key reasons for this concern. One was that periodic detention was the most resource intensive community-based sentence. Figures cited indicated that the sentences of supervision, community care and community service cost an average of $1,005 per person per year, while a sentence of periodic detention was costing around $2,522 per person per year.[139]
The second reason for concern was the mixing of persons convicted of serious offences with those convicted of less serious offences. Not only did this introduce a widely disparate offending population into periodic detention centres, which involved potential management difficulties, but the likelihood of fast-tracking offenders to imprisonment increased with the increased use of periodic detention in cases involving comparatively minor offences.[140] This was consistent with the observation of Spier, Luketina & Kettles (1991) above.
A review[141] of the sentence of periodic detention was completed in 1992 (Review of Periodic Detention Report, 1992). The purpose of the review was the critical examination of the district management of periodic detention and, consequently, the review focus was predominately operational[142]. However, the general outcome of the review was affirmation of the sentence of periodic detention:
...periodic detention fits in well with the whole range of community based sentences contributing a “hard edge” to the rest of the spectrum of sentences.[143]
Additionally, consultation with correctional staff highlighted ‘widespread agreement’ that periodic detention stood at the punitive end of the scale of community-based sentences; the last resort before imprisonment.[144]
The review team expressed concern about the increase in the imposition of periodic detention since 1985 because of the potential for net-widening, which not only resulted in increased financial costs to the State but also increased ‘human costs’. Both of these costs were incurred when some offenders were ‘dragged’ further into the criminal justice ‘net’ than necessary for the purpose of punishment. The review team argued that this was not in the ‘best interests’ of either the public or the individual offender.[145]
In order to ‘cap’ the periodic detention muster, the review team proposed the introduction of a maximum limit, at district level, of 300 offenders ‘on muster’ at any given point in time. This would encourage both ‘appropriate sentencing’ and ‘optimum use of resources’.[146] A number of strategies were proposed in order to ensure that the ‘cap’ would not be exceeded. It was envisaged that these strategies would not only slow down the increase in the use of periodic detention, but also facilitate the diversion of offenders convicted of relatively minor offences from periodic detention.[147]
Simultaneously, the review team advocated the introduction of a two tiered system of administering periodic detention in order to increase the credibility of this sentence as an alternative to imprisonment. The two tiered system would increase the intensity of the time served on periodic detention by more serious offenders, in particular property or driving offenders. The proposal centred on court servicing teams highlighting, by way of pre-sentence reports, judicial discretion to ‘specify the number of occasions in each week on which the offender is required to report’[148] and to get this group of offenders to serve two days each week, for eight hours on each occasion.[149]
The review team briefly discussed a potential new sentencing initiative to be called the “Community Corrections Order”, which would incorporate all current community based sentences. The review team did not support this initiative. It was argued that, in terms of sentencing objectives, a combined order would have ‘little to offer’ compared to what was already available; that the combined order may result in a ‘blurring’ of, or a conflict in, sentencing objectives; and that a combined order could raise the sentencing tariff and ‘fast-track’ offenders to prison because the sentencing alternatives to imprisonment would be drastically reduced.[150]
1993
The Community Corrections Division of the Department of Justice
completed a review of the sentence of community service (Community Service
Review Report) in 1993. [151]
During the early 1990s the community service muster had increased significantly
and in 1993 it was projected to be double that of
1991.[152] A number of issues
were examined.
The first of these was the cost implications of
maintaining the current community service muster and fiscal planning for the
projected
muster. The review committee identified strategies that managed both
current and projected volumes.
The review committee reported concern
about the introduction of stand-down [same day]
reports.[153] These reports were
seen by the respondents as having contributed to the increase in the use of
community service. Respondents indicated
that the introduction of same day
reports might also have affected the quality of community service assessments.
Additionally, respondents
observed that many of those now being referred for the
preparation of stand-down reports had been convicted of ‘trifling
offences’.
This was seen as representing a widening of the criminal
justice net. The review team’s recommendation for attempting to
curb
‘net-widening’ was that both the Community Corrections and Courts
divisions of the Department of Justice devise
a strategy for alternative ways of
disposing with the non-payment of fines where the original offence was
non-imprisonable.[154]
Two
particular issues for the sponsors of community service emerged in the review.
Firstly, sponsors were apprehensive about the
provision of community service
opportunities for those who had been convicted of serious offences.
Interestingly, it was the potential
for organisational harm (rather than
personal risk) that was seen as a problem. Consequently, the review committee
stressed the
importance of matching the correct sponsor with an appropriate
offender.[155]
The second
issue regarding the sponsors of community service was the clarification of their
role in providing evidence to the court
in not-guilty hearings or disputed
applications for review. The review committee commented that it was generally
accepted that sponsors
were not to be called to give evidence despite
recognition that not all breaches/applications could be successfully prosecuted
in
the absence of the sponsor’s
evidence.[156]
The
potential of community service to incorporate cultural dimensions also emerged
from the review. The recommendation was that both
the Community Corrections
division and the Cultural Advisory Unit of the Department of Justice examine the
application of community
service from the viewpoint of its cultural sensitivity.
The purpose of this was to ascertain what changes could be made to produce
alternatives consistent with the purpose of the sentence in diverse cultural
settings.
Granting remission of sentence, in terms of the number of
hours to be served, on the grounds of good behaviour and/or quick completion
rates was discussed. Proponents of remission felt that it would provide both
encouragement and an incentive for those with sentences
of over 100 hours.
However, the review team was concerned that net-widening could occur as a result
of the judiciary increasing
the number of community service hours to be served
in consideration of the fact that some of the hours may eventually be remitted.
This would increase the potential for the sentence to be abused and,
subsequently, lose credibility. The review team concluded
that the arguments
against remission outweighed the potential
benefits.[157]
The report
also raised some legislative issues. These were: the conditions and limitations
on additional sentences of community service
being imposed concurrently or
cumulatively on an offender already serving a sentence of community service;
whether the definition
of ‘service’ under s60 was too narrow; and
the need for the courts to be able to impose community-based sentences rather
than imprisonment upon review of a sentence of community service imposed for
non-payment of a fine.
Summary
Although all these reviews took place some years ago, there were a number of issues that emerged from them that remain relevant to current practice, such as:
4. Use of Community-based Sentences
Table 1 below shows the use of community-based sentences (and for comparative purposes the use of custodial sentences and monetary penalties) for all imprisonable cases (traffic and non-traffic) over the period 1988 to 1998.[158] This excludes cases where all the charges carried a sentence of a fine only. Where more than one sentence was given in a case, only the most serious sentence imposed is included in the figures. The order of sentences from the most to the least serious that is used is custodial sentences, periodic detention, community programme, community service, supervision, then monetary penalties.[159] Figures on the number of offenders receiving imprisonment or a community-based sentence as a result of non-payment of a monetary penalty are not readily available, and so are not included in this or subsequent tables, unless otherwise stated.
[160]
Sentence type |
1988 |
1989 |
1990 |
1991 |
1992 |
1993 |
1994 |
1995 |
1996 |
1997 |
1998 |
Imprisonment |
6784 |
7579 |
8004 |
8222 |
8420 |
8956 |
8321 |
8226 |
8861 |
9295 |
9492 |
Monetary* |
42978 |
39554 |
34450 |
34315 |
27865 |
28949 |
30364 |
33439 |
33624 |
32856 |
32421 |
Periodic detention** |
15575 |
19406 |
19803 |
23276 |
22492 |
23287 |
22019 |
20781 |
20416 |
20930 |
22838 |
Community prog |
777 |
848 |
771 |
1118 |
1282 |
1178 |
988 |
972 |
780 |
486 |
431 |
Community service |
2600 |
4484 |
5620 |
8632 |
9894 |
9955 |
9644 |
8883 |
8261 |
8039 |
8748 |
Supervision |
3749 |
3720 |
2937 |
2889 |
3210 |
4161 |
5278 |
5450 |
5488 |
5337 |
5331 |
TOTAL COMMUNITY |
22701 |
28458 |
29131 |
35915 |
36878 |
38581 |
37929 |
36086 |
34945 |
34792 |
37348 |
* Fines and reparation.
** Includes combined sentences of periodic detention and supervision.
The number of imprisonable cases resulting in a community-based sentence peaked in 1993 and then showed a slowly decreasing trend until 1998 when there was a significant increase (because of increases in the numbers of periodic detention and community service sentences). The numbers of supervision sentences showed a different trend to the other community-based sentences, increasing in each year after 1991, until 1997 when they levelled out. Community programme cases have shown the most dramatic drop in numbers during the 1990s (the 1998 number being less than half that of 1992 when it was at its highest).
The large decrease in the use of monetary penalties (mainly fines) between 1988 and 1992 would have been partly as a result of the introduction of the Police adult diversion scheme from 1988, with the result that a number of the less serious cases, which most likely would have previously received a fine, were diverted from the court. This would have been a major reason behind a relative increase in the cases resulting in no sentence (discharge with or without conviction). There are likely to have been other influences, such as economic factors and judges’ perceptions of offenders’ ability to pay a fine. The figures also show an increase in the use of periodic detention and community service over the period 1988 to 1993. Data show that those sentences were increasingly being imposed instead of monetary penalties for offences of low to moderate seriousness. This was more so for community service, with the increase in periodic detention mainly resulting from a relative decline in the use of imprisonment and an increase in the number of offenders with a large number of previous cases coming before the courts.[161]
However, over the period 1993 to 1997, there were small increases in the percentage of imprisonable cases resulting in monetary penalties, particularly for offences of lower seriousness, while the use of both periodic detention and community service dropped slightly for these offences.[162] The combined sentences of periodic detention and supervision have made up about 17% of the above sentence outcomes of periodic detention in recent years, although it was as low as 11% in 1992.
The next table shows the percentage of all cases that resulted in each of the community-based sentences over the last decade. The proportions of cases resulting in custodial and monetary penalties are also included for comparative purposes.
[163]
Sentence type |
1988 |
1989 |
1990 |
1991 |
1992 |
1993 |
1994 |
1995 |
1996 |
1997 |
1998 |
Imprisonment |
8.8 |
9.4 |
10.6 |
9.8 |
10.7 |
10.8 |
10.0 |
9.7 |
10.5 |
11.1 |
10.9 |
Monetary* |
55.4 |
49.0 |
45.6 |
41.1 |
35.3 |
34.9 |
36.4 |
39.6 |
39.8 |
39.3 |
37.3 |
Periodic detention** |
20.1 |
24.1 |
26.2 |
27.8 |
28.5 |
28.1 |
26.4 |
24.6 |
24.2 |
25.0 |
26.2 |
Community prog |
1.0 |
1.1 |
1.0 |
1.3 |
1.6 |
1.4 |
1.2 |
1.2 |
0.9 |
0.6 |
0.5 |
Community service |
3.4 |
5.6 |
7.4 |
10.3 |
12.5 |
12.0 |
11.6 |
10.5 |
9.8 |
9.6 |
10.1 |
Supervision |
4.8 |
4.6 |
3.9 |
3.5 |
4.1 |
5.0 |
6.3 |
6.5 |
6.5 |
6.4 |
6.1 |
TOTAL COMMUNITY |
29.3 |
35.4 |
38.5 |
42.9 |
46.7 |
46.5 |
45.5 |
42.8 |
41.4 |
41.6 |
42.9 |
* Fines and reparation.
** Includes combined sentences of periodic detention and supervision.
Table 3 gives the average number of sentenced prison inmates in each of the years 1988 to 1998 and the numbers of people serving each of the community-based sentences at mid-year for each of those years (average annual numbers serving community-based sentences are not available for all these years). These musters include multiple sentences (arising from one or more cases for the same individual) so that one individual could appear in two totals. They also include those re-sentenced to periodic detention, community service, or prison for failing to pay fines, who are not included in the case-based data. Data indicate that about 7% of the periodic detention muster may be composed of fines defaulters and that an estimated 23 to 27% of the community service muster may be made up of fine defaulters.[164]
[165]
Sentence type |
1988 |
1989 |
1990 |
1991 |
1992 |
1993 |
1994 |
1995 |
1996 |
1997 |
1998 |
Custodial* |
2951 |
3203 |
3498 |
3742 |
3834 |
4049 |
3822 |
3986 |
4212 |
4586 |
4800 |
Periodic detention |
6452 |
7776 |
7841 |
8598 |
8077 |
8093 |
7771 |
6915 |
6678 |
7091 |
7674 |
Community prog |
440 |
470 |
402 |
595 |
720 |
670 |
623 |
569 |
472 |
320 |
236 |
Community service |
2442 |
3928 |
4245 |
6215 |
8177 |
7526 |
7489 |
7019 |
6778 |
6187 |
6249 |
Supervision |
5883 |
6017 |
5357 |
4804 |
4824 |
5138 |
5765 |
7153 |
7354 |
7401 |
7283 |
TOTAL COMMUNITY |
15217 |
18191 |
17845 |
20212 |
21798 |
21427 |
21648 |
21656 |
21366 |
20999 |
21442 |
* Does not include remand inmates
The trends in annual muster levels mirror fairly closely the pattern of growth and decline shown by the number of cases resulting in those sentences. The overall community-based sentences muster peaked in 1992 mainly because of a significant increase in the number serving community service. Community service and community programme musters peaked in 1992. The periodic detention muster peaked in 1991 and the supervision muster has continued increasing since 1991 to reach its highest level in the decade in 1997 (although the 1998 figure was a little lower than the figures in the previous two years).
Table 4 below shows that in 1998 periodic detention was the most frequently imposed community-based sentence for each type of offence except violent offences, where a larger proportion of cases received supervision (either alone or in combination with periodic detention). Periodic detention (including periodic detention and supervision in combination) was imposed in a higher proportion of cases than monetary penalties for violent offences, property offences, and offences against justice. As a proportion of the total number of cases it was most often used for offences against the administration of justice (45% of cases). Community programme was used most often for violent offences (although only in just over 1% of cases), community service most often used for property offences (13% of cases) and supervision (including supervision and periodic detention) for violent offences (27% of cases).
Offences against justice were the type of convicted imprisonable offence that most frequently received a community-based sentence (over half of the cases), mainly because of the high proportion (45%) that received periodic detention (either alone or in combination with supervision). About 50% of property offences received a community-based sentence. Periodic detention is the community-based sentence used most often for traffic offences and community programme is the one least often used. Fines are used for about 1.2 times as many imprisonable traffic cases than are community-based sentences.
[166]
Offence type |
Violent |
Other against person(a) |
Property |
Drug |
Against justice(b) |
Good order(c) |
Traffic |
Imprisonment |
21.0 |
7.8 |
13.1 |
8.3 |
16.5 |
3.7 |
7.3 |
Monetary |
19.2 |
36.0 |
27.3 |
46.3 |
9.7 |
46.6 |
49.9 |
Periodic detention |
15.6 |
17.5 |
24.8 |
22.2 |
41.9 |
12.9 |
20.4 |
PD & |
10.3 |
2.4 |
4.4 |
4.1 |
2.8 |
1.0 |
3.2 |
Community programme |
1.1 |
0.1 |
0.6 |
0.2 |
0.8 |
0.1 |
0.4 |
Community |
5.6 |
5.8 |
13.0 |
8.6 |
3.2 |
3.7 |
12.5 |
Supervision |
16.2 |
5.5 |
7.2 |
4.0 |
4.9 |
3.5 |
3.4 |
TOTAL |
48.7 |
31.3 |
50.1 |
39.0 |
53.6 |
21.2 |
40.0 |
Other(d) |
11.1 |
24.9 |
9.5 |
6.4 |
20.2 |
28.5 |
2.8 |
Total |
100.0 |
100.0 |
100.0 |
100.0 |
100.0 |
100.0 |
100.0 |
Notes:
(a) These are mainly offences of obstructing or resisting police officers or other officials, a number of sexual offences, rioting, various firearm offences, and threatening and intimidation offences.
(b) Offences that are mostly the result of a breach of a sentence, including escape from custody, breach of bail, breach of protection orders, or related to court procedure.
(c) These include disorderly behaviour, carrying offensive weapons, trespassing, and unlawful assembly.
(d) This includes: suspended sentences that are imposed alone; to come up for sentence if called upon; driving disqualifications; and conviction and discharges.
Table 5 below shows that traffic offences (37%) and property offences (27%) accounted for the majority of community-based sentences imposed in 1998. Those two types of offences accounted for the majority of periodic detention sentences. Violent offences accounted for a larger proportion of supervision sentences (34%) and community programme sentences (28%) than was the case with the other community-based sentences. Traffic offences accounted for nearly half of the community service sentences imposed in 1998.
Sentence type |
Custodial |
Periodic detention |
Community programme |
Community service |
Supervision |
Total community |
Violent |
24.4 |
12.5 |
28.3 |
7.0 |
33.6 |
48.8 |
Other against person |
1.3 |
1.4 |
0.5 |
1.0 |
1.6 |
1.3 |
Property |
27.3 |
25.3 |
26.9 |
29.5 |
26.7 |
26.5 |
Drug |
6.6 |
8.7 |
3.0 |
7.4 |
5.7 |
7.9 |
Against justice |
11.1 |
12.5 |
11.8 |
2.3 |
5.9 |
9.2 |
Good order |
1.9 |
2.9 |
0.9 |
2.0 |
3.1 |
2.7 |
Traffic |
26.4 |
35.6 |
28.1 |
49.3 |
22.1 |
36.8 |
Miscellaneous |
1.1 |
1.1 |
0.5 |
1.4 |
1.4 |
1.2 |
TOTAL |
100.0 |
100.0 |
100.0 |
100.0 |
100.0 |
100.0 |
The above table also shows that the majority of offenders being sentenced to a community-based sentence (ranging from 78% of those on supervision to 51% for community service) have been convicted for a non-traffic offence. Community service stands out as being a sentence being received by nearly equal numbers of traffic and non-traffic offenders.
Table 6 looks at recent trends in the use of community-based sentences for those convicted of imprisonable traffic offences. There was a large increase in the number of cases involving a traffic offence resulting in a community-based sentence between 1988 and 1991. The marked increase may be related to an increase in convictions for serious traffic offences and to the Transport Amendment Act (No 2) 1988 which came into effect on 11 December 1988. This amendment allowed a community-based sentence to be substituted for mandatory disqualification for some traffic offences.[168] After 1991 the number of cases resulting in a community-based sentence steadily decreased until 1998, mostly because convictions for serious traffic offences decreased. The proportion of traffic cases resulting in a community-based sentence has remained reasonably steady at about 40% in recent years.
[169]
Sentence Type |
1993 |
1994 |
1995 |
1996 |
1997 |
1998 |
Custodial |
2218 (6.9) |
1891 (6.1) |
1996 (5.9) |
2290 (6.7) |
2423 (7.3) |
2501 (7.3) |
|
|
|
|
|
|
|
Periodic detention |
8723 (26.9) |
7850 (25.3) |
7709 (22.9) |
7663 (22.5) |
7585 (22.9) |
8137 (23.7) |
Community programme |
367 (1.1) |
229 (0.7) |
228 (0.7) |
223 (0.7) |
131 (0.4) |
121 (0.4) |
Community service |
5131 (15.9) |
4787 (15.4) |
4610 (13.7) |
4212 (12.4) |
3957 (11.9) |
4313 (12.5) |
Supervision |
896 (2.8) |
1018 (3.3) |
1085 (3.2) |
1192 (3.5) |
1167 (3.5)) |
1176 (3.4) |
Total community |
|
|
|
|
|
|
|
|
|
|
|
|
|
Monetary |
14186 (43.8) |
14446 (46.5) |
17218 (51.1) |
17658 (51.8) |
17061 (51.4) |
17164 (49.9) |
The 1980s showed a marked shift towards increased use of the sentence of periodic detention. This rapid increase peaked in the early 1990s and then declined as the use of monetary penalties increased. As Table 7 below shows, the percentage of cases for imprisonable offences resulting in a sentence of periodic detention more than doubled over the period 1982 to 1992 (from 11.6% of cases to 28.4%).
Analysis of sentencing data showed that the courts may have been imposing sentences of periodic detention for certain offences which in the past would have been dealt with by a monetary penalty. For example, in 1982 60% of less serious forms of assault were sentenced to a monetary penalty while 15% were given periodic detention. By 1987 47% were given a monetary penalty while 22% of convictions resulted in periodic detention.[170] Recent data show that the greater use of periodic detention was mainly for offenders committing offences of low to moderate seriousness, although much of this change was due to the increased number of previous cases involving convictions of this group of offenders.[171]
Since 1993, when the number of cases resulting in periodic detention as the most serious sentence peaked at 23,287, the number of periodic detention sentences has declined, although the number imposed in 1998 (22,838) was higher than in any other subsequent year.
[172]
Offence type |
1982 |
1983 |
1984 |
1985 |
1986 |
1987 |
1988 |
1989 |
1990 |
1991 |
1992 |
1993 |
1994 |
1995 |
1996 |
1997 |
1998 |
Violent |
13.0 |
15.4 |
15.5 |
16.3 |
17.7 |
20.7 |
22.1 |
26.8 |
26.9 |
27.9 |
27.3 |
26.5 |
26.3 |
24.7 |
24.4 |
24.2 |
25.8 |
Other against person |
7.0 |
7.3 |
9.3 |
8.5 |
9.7 |
11.9 |
13.8 |
18.8 |
19.5 |
22.2 |
24.2 |
23.4 |
22.0 |
20.6 |
16.7 |
19.3 |
19.6 |
Property |
17.4 |
19.7 |
19.5 |
20.3 |
21.2 |
22.6 |
24.3 |
26.2 |
29.5 |
31.6 |
31.5 |
30.7 |
28.2 |
27.4 |
26.6 |
29.2 |
29.2 |
Drug |
5.6 |
7.1 |
7.9 |
7.7 |
9.2 |
12.3 |
14.9 |
17.1 |
21.7 |
23.3 |
25.4 |
25.2 |
23.3 |
21.8 |
22.4 |
21.2 |
26.2 |
Against justice |
21.4 |
24.1 |
23.9 |
26.3 |
28.7 |
33.0 |
35.2 |
39.3 |
40.6 |
43.2 |
44.7 |
44.4 |
44.3 |
42.1 |
43.4 |
43.4 |
44.6 |
Good |
3.6 |
5.0 |
6.0 |
7.1 |
9.7 |
10.5 |
14.2 |
16.7 |
16.2 |
18.7 |
19.4 |
17.4 |
15.8 |
13.4 |
12.5 |
13.2 |
13.8 |
Traffic |
9.1 |
10.9 |
11.8 |
12.2 |
14.7 |
16.0 |
18.3 |
23.1 |
25.0 |
25.8 |
26.5 |
26.9 |
25.2 |
22.8 |
22.4 |
22.8 |
23.6 |
Miscell- |
3.6 |
4.9 |
4.2 |
4.3 |
6.3 |
6.1 |
6.4 |
8.7 |
11.8 |
12.3 |
14.9 |
12.9 |
10.2 |
8.8 |
7.8 |
10.2 |
15.3 |
TOTAL |
11.6 |
13.7 |
13.9 |
14.5 |
16.2 |
17.9 |
20.0 |
23.8 |
26.1 |
27.5 |
28.4 |
28.0 |
26.3 |
24.5 |
24.1 |
24.9 |
26.1 |
Note:
Cases in this table refer to all charges against a single offender which are finalised on the same day. This will produce a higher number of cases than if cases are defined as charges which share the first or final hearing date. For a case involving more than 1 charge the charge selected is the one that resulted in the most serious penalty.
An increased use of periodic detention followed the promotion of alternatives to imprisonment in the Criminal Justice Act 1985. There were substantial increases for all categories of offending. In 1982, 13% (628) of cases involving a violent offence received periodic detention as the most serious sentence. This peaked at 28% (1,852) in 1991 and then gradually declined to 24% (2,677) in 1997. In 1982, 17% of convictions for property offences resulted in periodic detention. This increased to 32% in 1991, declined to 27% in 1996 and rose to 29% in 1997. There have also been significant proportional increases in the use of periodic detention for offences against justice and drug offences. Some of these increases can be accounted for by changes in the characteristics of offenders. The probability of receiving periodic detention between 1983 and 1995 increased most for breaches of periodic detention and other offences against justice, and for drug offences, less serious violent offences and disorder offences. This has been paralleled by a decrease in the use of imprisonment for these offences. There has also been a decreased use of imprisonment and a greater use of periodic detention for persistent offenders.[173]
In 1982, 28% of convicted imprisonable cases resulting in a sentence of periodic detention were traffic offences compared to 44% of cases in 1991. In 1998 it was 36% (see Table 5). The number of traffic cases awarded a sentence of periodic detention rose from 1,965 in 1982 to 10,328 in 1991. It dropped to 7,585 in 1997 and then rose again to 8,137 in 1998. Periodic detention has accounted for between 23% to 27% of the sentences imposed on convicted imprisonable traffic cases in each of the years 1993 to 1998.
The new community-based sentences of community care and supervision in the Criminal Justice Act 1985 do not appear to have been used as alternatives to periodic detention.
Table 8 shows the proportion of convictions for imprisonable offences, by type of offence, that received a sentence of community service as the most serious sentence, for each of the full years this sentence was in force following its introduction in 1981.
[174]
Offence type |
1982 |
1983 |
1984 |
1985 |
1986 |
1987 |
1988 |
1989 |
1990 |
1991 |
1992 |
1993 |
1994 |
1995 |
1996 |
1997 |
1998 |
Violent |
2.6 |
2.3 |
2.1 |
2.7 |
1.7 |
2.0 |
2.5 |
3.6 |
3.9 |
5.6 |
6.7 |
6.4 |
6.5 |
6.0 |
5.5 |
5.7 |
5.6 |
Other against person |
1.7 |
1.9 |
1.7 |
2.0 |
1.9 |
1.1 |
1.5 |
3.4 |
3.2 |
6.9 |
7.4 |
7.8 |
8.4 |
6.6 |
5.9 |
5.9 |
5.7 |
Property |
5.0 |
5.0 |
4.8 |
4.7 |
3.8 |
3.8 |
4.5 |
5.9 |
8.6 |
12.2 |
12.9 |
13.2 |
13.2 |
12.4 |
12.2 |
12.0 |
13.0 |
Drug |
2.0 |
2.5 |
2.1 |
2.5 |
2.3 |
1.9 |
2.7 |
4.1 |
4.3 |
8.4 |
10.4 |
9.8 |
10.0 |
8.6 |
8.3 |
8.1 |
8.5 |
Against justice |
1.4 |
2.3 |
2.0 |
2.3 |
1.4 |
2.5 |
2.6 |
2.7 |
3.1 |
4.2 |
4.0 |
4.0 |
3.8 |
3.7 |
3.1 |
3.5 |
3.2 |
Good |
2.2 |
0.7 |
0.6 |
1.0 |
0.7 |
1.0 |
1.4 |
2.0 |
3.5 |
3.7 |
6.5 |
5.3 |
4.9 |
4.0 |
3.7 |
3.9 |
3.7 |
Traffic |
2.2 |
2.8 |
2.6 |
2.2 |
2.6 |
2.6 |
3.4 |
6.9 |
9.0 |
13.4 |
15.9 |
15.8 |
15.4 |
13.6 |
12.3 |
11.9 |
12.5 |
Miscell- |
1.2 |
1.5 |
1.0 |
1.2 |
1.8 |
1.5 |
1.4 |
2.4 |
3.9 |
4.5 |
6.2 |
5.2 |
5.5 |
5.6 |
5.5 |
7.0 |
7.6 |
TOTAL |
3.0 |
3.2 |
3.0 |
3.0 |
2.7 |
2.7 |
3.3 |
5.5 |
7.4 |
11.0 |
12.4 |
11.9 |
11.5 |
10.4 |
9.7 |
9.6 |
10.0 |
Note:
Cases in this table refer to all charges against a single offender which are finalised on the same day. For a case involving more than 1 charge the charge selected is the one that resulted in the most serious penalty.
There have been significant changes in the imposition of community service in the 1990s compared to the 1980s. The use of this sentence increased markedly from 3% of cases involving imprisonable offences in 1982 (1,840 cases) to 12.4% (9,894 cases) in 1992 after which it has declined to 10% (8,748 cases) in 1998. The total number of such cases resulting in community service as the most serious sentence in 1998 (8,748) was nearly 5 times the number of cases in 1982 (1,840).
There was a particularly large increase in the number of imprisonable cases, notably traffic cases, which resulted in a sentence of community service from 1988 until 1993.[175] The proportion of traffic cases resulting in community service has decreased a little in the last 6 years, with 13% receiving the sentence in 1998, compared to 16% in 1992.
Traffic and property offences have been the two offence categories accounting for the largest proportions of community service sentences and since 1989 they have resulted in about 78% of community service sentences imposed each year (with traffic offences accounting for about half of the total) (see Table 5).
The total number of community service sentences peaked at 9,956 in 1993. Its increased use up until the mid-1990s, both in terms of the number of sentences and as a percentage of cases, occurred within all offence groups. The trend also occurred at all levels of offence seriousness except for the most serious offences, with the largest changes occurring in the lower seriousness categories.
Research has shown a much larger proportion of offences of low seriousness and of offenders with less serious criminal histories (in terms of the number and seriousness of previous convictions, rates of offending and the period of time since previous offence) receiving community service in the 1990s. In terms of offending histories the increase in community service has been most great for offenders with no or only a few previous convictions. As the use of monetary penalties showed the opposite trend through the 80s to the mid-90s, and the increase in this period is much greater than can be explained by the growth in the number of cases, this indicates that community service was mainly being used in place of monetary penalties rather than primarily as an alternative to imprisonment.[176] The slight decline in sentences of community service in the late 1990s corresponds with an increase in the use of monetary penalties and supervision.
The sentence of community programme (called community care until 1 September 1993) has not been used as a sentencing option as frequently as was hoped. As Table 9 shows, the proportion of cases given a sentence of community care has declined since the sentence was introduced on 1 October 1985, particularly after 1992. Information on the use of community programme by probation districts shows an uneven geographical distribution.[177] The infrequent use of community programme may reflect a lack of confidence in the sentence or a lack of resources in both the justice system and the wider community to support the sentence.[178] There is the time involved in organising a community programme for an offender and reporting to the court on the programme and its conditions, which must precede the sentence. This may in some cases present difficulties in respect of probation officers’ workloads and the avoidance of undue delays in sentencing. Less than 1% of cases involving drug offences and offences against good order resulted in a community programme in each of the last ten years.
[179]
Offence type |
1984 |
1985 |
1986 |
1987 |
1988 |
1989 |
1990 |
1991 |
1992 |
1993 |
1994 |
1995 |
1996 |
1997 |
1998 |
Violent |
- |
0.9 |
2.3 |
1.7 |
1.7 |
1.7 |
1.9 |
2.9 |
3.3 |
2.6 |
2.9 |
2.9 |
2.0 |
1.2 |
1.1 |
Other against person |
- |
0.2 |
1.0 |
0.8 |
0.7 |
0.5 |
0.7 |
1.3 |
0.9 |
0.8 |
1.2 |
1.0 |
0.4 |
0.4 |
0.1 |
Property |
- |
0.7 |
2.1 |
1.9 |
1.5 |
1.6 |
1.5 |
2.1 |
2.1 |
1.8 |
1.4 |
1.4 |
1.2 |
0.8 |
0.6 |
Drug |
- |
0.2 |
0.5 |
0.5 |
0.5 |
0.4 |
0.4 |
0.8 |
0.6 |
0.6 |
0.4 |
0.5 |
0.5 |
0.3 |
0.2 |
Against |
- |
0.5 |
1.7 |
1.4 |
1.7 |
1.7 |
1.2 |
2.0 |
1.8 |
1.5 |
1.0 |
1.0 |
0.8 |
0.6 |
0.8 |
Good order |
- |
0.3 |
0.7 |
0.7 |
0.3 |
0.5 |
0.6 |
0.8 |
0.7 |
0.7 |
0.7 |
0.5 |
0.3 |
0.2 |
0.1 |
Traffic |
- |
0.4 |
1.0 |
0.7 |
0.7 |
0.7 |
0.7 |
0.9 |
1.2 |
1.1 |
0.7 |
0.7 |
0.7 |
0.4 |
0.4 |
Miscellan- |
- |
0.3 |
1.1 |
0.6 |
0.3 |
0.3 |
0.9 |
1.0 |
1.5 |
1.2 |
0.3 |
0.5 |
0.3 |
0.2 |
0.1 |
TOTAL |
- |
0.5 |
1.4 |
1.1 |
1.0 |
1.0 |
1.0 |
1.4 |
1.6 |
1.4 |
1.2 |
1.1 |
0.9 |
0.6 |
0.5 |
Notes:
(a) The sentence of community programme did not become available until 1 October 1985.
(b) Cases in this table refer to all charges against a single offender which are finalised on the same day. For a case involving more than 1 charge the charge selected is the one that resulted in the most serious penalty.
At no point has the use of community programme exceeded 1.6% of the total number of convictions for imprisonable offences (which was the proportion in 1992). In 1998 it was only used in 0.5% of cases (an all time low for any year since 1985 when it was only available for 3 months). The number of cases resulting in this sentence peaked in 1992 at 1,282 and thereafter fell to 431 in 1998. The number in 1998 was the lowest in any full year in which it was available.
Community programme sentences tend to be mainly reserved for offenders who have committed moderately serious offences and who have a previous criminal history. They are much more likely to be imposed for domestic violence offences and other serious offences against the person (mainly violent) than for other offence types. First offenders, and offenders convicted on only one charge or convicted of a very low or very high seriousness offence, are less likely to receive a community programme sentence.[180]
There has been a shift in the use of the sentence according to offence groups. The most significant change has been in respect of violent offences which in the last 2 years have accounted for about 28% of community programme sentences compared to between 13% and 15% in 1985 and 1986. This has coincided with a drop in the percentage of community programme sentences where the major offence was a property offence (from 47% in 1986 to 27% in 1998). The average seriousness of cases that result in community programme is greater than for other community-based sentences.[181]
The following table traces the use of probation in the early 1980s and then the sentence of supervision which replaced it in 1985.
[182]
Offence type |
1982 |
1983 |
1984 |
1985 |
1986 |
1987 |
1988 |
1989 |
1990 |
1991 |
1992 |
1993 |
1994 |
1995 |
1996 |
1997 |
1998 |
Violent |
6.0 |
5.4 |
5.5 |
5.4 |
5.7 |
6.3 |
8.0 |
8.1 |
6.7 |
7.6 |
8.8 |
11.4 |
16.3 |
17.1 |
16.8 |
16.9 |
16.2 |
Other against person |
4.3 |
4.4 |
3.5 |
2.8 |
3.4 |
3.2 |
4.3 |
3.0 |
3.4 |
2.7 |
3.3 |
4.7 |
4.9 |
6.4 |
6.1 |
5.5 |
5.4 |
Property |
10.2 |
9.3 |
8.3 |
8.3 |
8.6 |
9.3 |
9.3 |
8.9 |
7.3 |
6.5 |
6.2 |
6.8 |
7.9 |
7.9 |
8.1 |
7.4 |
7.2 |
Drug |
2.6 |
2.2 |
1.9 |
1.8 |
2.2 |
2.4 |
2.6 |
3.0 |
2.4 |
2.5 |
2.8 |
3.2 |
3.4 |
3.8 |
3.7 |
4.0 |
4.0 |
Against justice |
3.5 |
3.2 |
3.2 |
2.5 |
2.9 |
4.3 |
4.0 |
3.7 |
3.7 |
2.8 |
4.1 |
3.3 |
4.1 |
3.4 |
4.2 |
4.8 |
4.9 |
Good |
2.5 |
2.4 |
2.9 |
3.1 |
2.9 |
2.5 |
3.2 |
3.7 |
3.2 |
3.9 |
4.8 |
4.1 |
4.1 |
4.8 |
4.1 |
3.7 |
3.5 |
Traffic |
1.4 |
1.6 |
1.4 |
1.5 |
1.5 |
1.7 |
2.0 |
2.0 |
1.8 |
1.7 |
1.9 |
2.8 |
3.3 |
3.2 |
3.5 |
3.5 |
3.4 |
Miscell- |
3.3 |
3.9 |
2.8 |
3.8 |
4.0 |
4.4 |
3.3 |
4.1 |
5.9 |
6.5 |
4.9 |
5.5 |
3.9 |
4.0 |
4.7 |
5.3 |
4.6 |
TOTAL |
5.0 |
4.7 |
4.1 |
4.2 |
4.4 |
4.7 |
4.8 |
4.6 |
3.9 |
3.7 |
4.1 |
5.0 |
6.3 |
6.4 |
6.5 |
6.4 |
6.1 |
Notes:
(a)The Criminal Justice Act 1985 replaced probation with supervision.
(b) Cases in this table refer to all charges against a single offender which are finalised on the same day. For a case involving more than 1 charge the charge selected is the one that resulted in the most serious penalty.
The use of supervision shows a different trend to the other community-based sentences. There was some decline in its proportionate use in the early and mid 1980s following the introduction of community service in 1981. It then increased rapidly in the early 1990s before stabilising in the mid 1990s (peaking in 1996). This pattern of increase in the 1990s occurred for supervision both as a primary sentence and as a second sentence in combination with imprisonment or periodic detention. In total over 9,000 supervision sentences (primary and secondary) were imposed in 1998, compared to about 5,000 in 1986.
Between 1990 and 1995, the proportion of violent offence cases which resulted in supervision as the most serious sentence increased from 7% to 17%. The number of cases went from 410 to 2,022. There has been a slight decline in 1996 (1,908), 1997 (1,863), and 1998 (1,801). Much of the increase was related to the rapid increase in the number of convictions for male assaults female (mostly domestic violence), which result in supervision more frequently than other violent offences, as well as an increase in the use of supervision in these cases. The later stabilisation is partly due to a decreasing number of domestic violence cases.
Violent offences now make the largest contribution to the total number of supervision sentences imposed as the primary sentence, followed by property and traffic offences. However, in 1982 property offences accounted for nearly two-thirds (65%) of the cases resulting in probation as the most serious sentence, while violent offences accounted for 10% of the cases resulting in this sentence. In 1988 violent offences accounted for 15% and property offences for 54%. By 1998 only 27% of supervision cases resulted from property offences, and the proportion of violent offences had increased to 34%. There has been a slowly increasing trend in the use of supervision as the most serious sentence for imprisonable traffic offences in the last 7 years, although the proportion is very small (3.4% in 1998).
In each year
probation/supervision was used to a significant extent in combination with
another sentence (periodic detention, imprisonment
except from 1986 to 1992, and
community service until 1985). In 1982 probation was the most serious sentence
in 3,018 cases and
in a further 3,379 cases it was imposed as a secondary
sentence. In 1998 it was used as the most serious sentence in 5,360 cases
and
as a second sentence in 5,051
cases.
[183]
Sentence |
1982 |
1983 |
1984 |
1985 |
1986 |
1987 |
1988 |
1989 |
1990 |
1991 |
1992 |
1993 |
1994 |
1995 |
1996 |
1997 |
1998 |
Imprison- |
8.9 |
9.9 |
9.2 |
8.4 |
0.0 |
0.0 |
0.0 |
0.0 |
0.0 |
0.0 |
0.0 |
0.5 |
8.7 |
11.5 |
13.6 |
12.6 |
13.6 |
Periodic |
33.5 |
31.6 |
30.2 |
25.2 |
15.5 |
16.1 |
16.3 |
14.7 |
12.7 |
11.6 |
11.1 |
12.7 |
15.3 |
17.0 |
16.8 |
16.6 |
16.3 |
Comm- |
26.4 |
23.4 |
23.2 |
14.8 |
1.43 |
0.5 |
0.6 |
0.2 |
0.1 |
0.04 |
0.1 |
0.1 |
0.2 |
0.2 |
0.1 |
0.1 |
0.1 |
Total |
5.6 |
6.1 |
5.8 |
4.8 |
2.6 |
2.9 |
3.3 |
3.5 |
3.3 |
3.2 |
3.2 |
3.6 |
4.9 |
5.3 |
5.5 |
5.6 |
5.8 |
Notes:
Sentence |
1982 |
1983 |
1984 |
1985 |
1986 |
1987 |
1988 |
1989 |
1990 |
1991 |
1992 |
1993 |
1994 |
1995 |
1996 |
1997 |
1998 |
Primary |
3018 |
3012 |
2828 |
2855 |
3165 |
3565 |
3765 |
3682 |
2946 |
3113 |
3232 |
4178 |
5308 |
5476 |
5521 |
5360 |
5360 |
Second* |
3379 |
3952 |
3994 |
3307 |
1862 |
2217 |
2571 |
2807 |
2521 |
2702 |
2509 |
3012 |
4134 |
4518 |
4680 |
4689 |
5051 |
Total |
6397 |
6964 |
6822 |
6162 |
5027 |
5782 |
6336 |
6489 |
5467 |
5815 |
5741 |
7190 |
9442 |
9994 |
10201 |
10049 |
10411 |
* In combination with either periodic detention, imprisonment, or community
service.
The ethnicity of offenders
receiving community-based sentences
The table below shows the number
of offenders receiving each type of community-based sentence according to their
ethnicity. Ethnicity
is recorded by the prosecuting authority (mostly the
Police) on the basis of self-identification by the offender and entered on the
Law Enforcement System. The table only covers non-traffic cases because data on
the ethnicity of offenders in traffic cases are
frequently not recorded.
[185]
Sentence imposed
|
NZ European
No % |
Mäori
No % |
Pacific
Peoples No % |
Other
No % |
TOTAL
No % |
Periodic detention*
|
5840 41.1
|
7038 49.6
|
1164 8.2
|
152 1.1
|
14194 100
|
Community
Programme |
47 15.7
|
215 71.9
|
35 11.7
|
2 0.7
|
299 100
|
Community
Service |
1738 42.7
|
1914 47.0
|
359 8.8
|
64 1.6
|
4075 100
|
Supervision
|
1752 42.9
|
1779 43.6
|
473 11.6
|
81 2.0
|
4085 100
|
TOTAL
|
9377 41.4
|
10946 48.3
|
2031 9.0
|
299 1.3
|
22653 100
|
* Includes combined sentences of periodic detention and
supervision.
Note: The table excludes cases where the ethnicity of the
offender was unknown; and 295 cases where the offender was recorded as being
a
corporation were excluded from this table
Nearly three-quarters of the
non-traffic cases which resulted in a community programme in 1998 involved
Mäori offenders (who
received nearly 5 times as many sentences of community
programme than New Zealand European offenders). There was a slightly higher
proportion of periodic detention and community service sentences imposed on
Mäori offenders than on New Zealand European offenders.
The table
below shows the proportion of offenders according to ethnicity that received
each type of community-based sentence in that
year. Overall, Mäori
offenders and Pacific peoples offenders had a similar likelihood of being
sentenced to a community-based
sentence (48% and 47% respectively). These are
higher proportions than was the case with European offenders (41%). A
relatively
high proportion of Mäori offenders (31%) were sentenced to
periodic detention compared to European and Pacific peoples offenders.
Pacific
peoples offenders had a higher proportion receiving supervision than either
Mäori or European
offenders.
[186]
Sentence imposed
|
NZ European
% |
Mäori
% |
Pacific
Peoples % |
Other
% |
Periodic detention*
|
25.7
|
30.7
|
26.9
|
19.3
|
Community programme
|
0.2
|
0.9
|
0.8
|
0.3
|
Community service
|
7.6
|
8.3
|
8.3
|
8.1
|
Supervision
|
7.7
|
7.8
|
10.9
|
10.3
|
Total community-based sentences
|
41.2
|
47.7
|
46.9
|
38.0
|
Other sentences
|
58.8
|
52.3
|
53.1
|
62.1
|
TOTAL
|
100.0
|
100.0
|
100.0
|
100.0
|
* Includes combined sentences of periodic detention and
supervision.
Note: The table excludes cases where the ethnicity of the
offender was unknown; and 295 cases where the offender was recorded as being
a
corporation were excluded from this table
A recent research study has
shown that ethnicity is a significant factor in the likelihood of an offender
receiving a periodic detention,
community programme or community service
sentence, even after taking into account other factors, including differences in
current
and past offending patterns. Mäori and Pacific offenders are about
twice as likely to receive the sentence of community programme
as other
offenders, controlling for other variables, and periodic detention and community
service are also used relatively more for
Mäori and Pacific
offenders.[187]
The
age and gender of offenders receiving community-based sentences
The
following tables show the breakdown of cases receiving community-based sentences
in 1998 according to the age and gender of the
offenders.
[188]
Sentence imposed
|
Under 17
No % |
17-19
No % |
20-24
No % |
25-29
No % |
30-39
No % |
40+
No % |
Total
No % |
Periodic detention
|
20 0.1
|
3376 18.0
|
5278 29.0
|
3896 21.8
|
4638 22.5
|
1876 8.7
|
19084 100
|
PD &
Supervision |
13 0.4
|
689 18.5
|
887 26.1
|
715 20.5
|
1004 25.6
|
419 9.1
|
3727 100
|
Community
Programme |
6 1.4
|
129 22.2
|
79 21.6
|
65 21.2
|
106 23.3
|
46 9.7
|
431 100
|
Community
Service |
19 0.2
|
2150 24.4
|
1695 20.1
|
1346 16.2
|
2114 24.2
|
1394 15.1
|
8718 100
|
Supervision
|
33 0.6
|
1048 19.8
|
1068 20.2
|
990 20.0
|
1430 26.6
|
756 12.9
|
5325 100
|
TOTAL
|
91 0.2
|
7392 19.8
|
9007 24.2
|
7012 18.8
|
9292 24.9
|
4491 12.0
|
37285 100
|
Offenders aged under 25 years accounted for about 43% to 45% of the
cases resulting in each of the sentences of periodic detention
and community
service (and also imprisonment), for 50% of cases resulting in community
programme, and for 40% of the cases resulting
in
supervision.
[189]
Sentence imposed
|
Male
No %
|
Female
No %
|
Total
No %
|
Periodic detention |
16942 89.1
|
2063 10.9
|
19005 100
|
PD & Supervision
|
3309 89.1
|
403 10.9
|
3712 100
|
Community programme
|
332 77.8
|
95 22.3
|
427 100
|
Community service
|
5623 64.6
|
3085 35.4
|
8708 100
|
Supervision
|
4145 78.1
|
1164 21.9
|
5309 100
|
TOTAL
|
30351 81.7
|
6810 18.3
|
37161 100
|
The percentage of community-based sentences imposed in 1998 on female
offenders (18%) is much higher than is the case with custodial
sentences (7%).
Community service is the community-based sentence with the highest proportion of
female offenders (35%) and periodic
detention has the lowest proportion
(11%).
Research shows that female offenders are more likely than males to
receive a sentence of community service or community programme
and less likely
to receive a periodic detention sentence, even taking into account the
differences in the type and seriousness of
offence committed (the average
seriousness of offending committed by women being lower than for men) and in the
extent of previous
offending (women offenders having on average fewer previous
convictions). For one community-based sentence, community service, gender
is
the most important statistical variable influencing its imposition (although the
study could not measure for all factors that
might influence sentencing, such as
gender differences in the circumstances of the average
offender).[190]
Combined
sentences
A community-based sentence can be imposed in conjunction
with a fine or reparation or both of these, a suspended sentence of
imprisonment,[191] or a driving
disqualification, and the sentences of supervision and periodic detention can be
combined. Since 1993 the courts have
had the power to impose a community-based
sentence cumulative on a sentence of imprisonment of 12 months or
less.
In 1988 there were 2,536 cases which resulted in a supervision
sentence in conjunction with a periodic detention. This had increased
to 3,735
cases in 1998. Up until 1990 this combination of sentences was used most
frequently for property offences (for more than
twice the number of times it was
used for violent offences in 1988) followed by traffic offences. From 1994
violent offences account
for the highest proportion of cases resulting in these
combined sentences followed by traffic and property offences (there was a
44%
increase in the number of violent cases receiving this sentence combination
between 1993 and 1994).
[192]
Offence type
|
1988
|
1989
|
1990
|
1991
|
1992
|
1993
|
1994
|
1995
|
1996
|
1997
|
1998
|
Violent |
448
|
574
|
520
|
575
|
732
|
931
|
1343
|
1268
|
1183
|
1129
|
1141
|
Other against person
|
34
|
37
|
27
|
24
|
29
|
33
|
35
|
42
|
33
|
37
|
37
|
Property
|
1075
|
968
|
803
|
794
|
660
|
696
|
784
|
822
|
790
|
897
|
875
|
Drug
|
144
|
128
|
125
|
135
|
163
|
173
|
195
|
209
|
206
|
200
|
310
|
Against justice
|
99
|
114
|
137
|
117
|
85
|
108
|
114
|
132
|
120
|
143
|
179
|
Good order
|
52
|
59
|
40
|
44
|
43
|
42
|
52
|
51
|
56
|
48
|
49
|
Traffic
|
652
|
962
|
822
|
976
|
757
|
932
|
845
|
972
|
1019
|
1012
|
1112
|
Miscellaneous
|
32
|
27
|
27
|
24
|
26
|
36
|
18
|
37
|
23
|
30
|
32
|
TOTAL
|
2536
|
2869
|
2501
|
2689
|
2495
|
2951
|
3386
|
3533
|
3430
|
3496
|
3735
|
Figures show that in the years 1994 to 1998 approximately 60% of
property charges resulting in a reparation
sentence[193] also had a
community-based sentence imposed, most commonly periodic
detention.
[194]
Additional sentence type
|
1994
No %
|
1995
No %
|
1996
No %
|
1997
No %
|
1998
No % |
Periodic detention |
4367 33.8
|
4763 35.1
|
3583 31.4
|
4061 36.4
|
3873 34.5
|
Community prog
|
260 2.0
|
214 1.6
|
179 1.6
|
98 0.9
|
112 1.0
|
Community service
|
1725 13.3
|
1762 13.0
|
1496 13.1
|
1385 12.4
|
1331 11.9
|
Supervision
|
1764 13.6
|
1718 12.7
|
1609 14.1
|
1040 9.3
|
1335 11.9
|
Total
|
8116 62.7
|
8457 62.4
|
6867 60.2
|
6584 59.0
|
6651 59.3
|
|
12938 100.0
|
13559 100.0
|
11400 100.0
|
11160 100.0
|
11230 100.0
|
In each of the years from 1994 (the first full year of their
availability) to 1998 between 80% and 89% of offenders who received a
suspended
sentence also received a community-based sentence. Between 51% and 60% had to
serve periodic detention (Table
19).
[195]
|
1994
No %
|
1995
No %
|
1996
No %
|
1997
No %
|
1998
No % |
Periodic detention & Supervision
|
421 15.4 |
601 19.4 |
526 18.2 |
720 22.0 |
829 24.8 |
Periodic detention only |
981 35.9
|
1208 39.0
|
1091 37.7
|
1220 37.3
|
1179 35.3
|
Supervision only
|
599 21.9
|
635 20.5
|
657 22.7
|
709 21.7
|
761 22.8
|
Community programme
|
116 4.2
|
135 4.4
|
113 3.9
|
87 2.7
|
80 2.4
|
Community service
|
76 2.8
|
117 3.8
|
108 3.7
|
134 4.1
|
117 3.5
|
Total
|
2193 80.2
|
2696 86.9
|
2495 86.2
|
2870 87.8
|
2966 88.8
|
Total suspended sentences*
|
2734 100.0
|
3101 100.0
|
2893 100.0
|
3268 100.0
|
3341 100.0
|
* Includes suspended sentences combined with a monetary penalty or a driving
disqualification as well as suspended sentences with
no additional
penalty.
The Criminal Justice Amendment Act 1993 amended the
principal Act to allow the courts to impose a community-based sentence
cumulative
on a sentence of imprisonment of 12 months or less. In 1994, the
first full year of this provision, it was applied in 761 cases
which represented
9% of all cases which resulted in a custodial sentence. In 96% of cases where
there was this conjunction of sentences,
supervision was the cumulative
sentence. In 1998 the 1,383 cases which had a community-based sentence imposed
cumulative to a custodial
sentence represented 15% of all cases resulting in a
custodial sentence in that year
(9,492).
[196]
Sentence type
|
1994
No %
|
1995
No %
|
1996
No %
|
1997
No %
|
1998
No %
|
Periodic detention |
16 2.1
|
19 1.8
|
47 3.6
|
45 3.6
|
52 3.8
|
Community programme
|
15 2.0
|
26 2.6
|
24 1.9
|
20 1.6
|
15 1.1
|
Community service
|
1 0.1
|
1 0.1
|
1 0.1
|
2 0.2
|
6 0.4
|
Supervision
|
729 95.8
|
961 95.4
|
1218 94.4
|
1186 94.7
|
1310 94.7
|
TOTAL
|
761 100.0
|
1007 100.0
|
1290 100.0
|
1253 100.0
|
1383 100.0
|
Criminal histories of offenders
receiving community-based sentences
Recent research has shown that
the criminal history of offenders (the number, seriousness and frequency of past
convictions; the period
since the previous conviction; and the previous
sentences imposed) does affect the probability of their receiving different
types
of community-based sentence (and the probability of receiving imprisonment
or a monetary penalty). A higher probability of community
service is associated
with having a small number of previous cases involving convictions, particularly
where the past offending has
not been serious and the rate of
conviction[197] has been low, or
the most recent offence was committed several years
ago.[198] Offenders with many
previous cases, or moderate to high rates of conviction involving offences of
moderate to high seriousness,
or with a previous conviction within the past
year, have a higher probability of a periodic detention
sentence.[199]
The
criminal history variables are not, however, with the exception of the previous
sentence, generally among the most significant
variables in determining
sentence. For example, the higher the offender’s rate of conviction the
higher the probability of
the offender receiving supervision but this is of
limited significance once account is taken of other
factors.[200]
The table
below shows the number of previous convicted cases for people convicted and
sentenced to a community-based sentence in 1995.
A lot of cases will have
involved more than one criminal charge.
[201]
Number of previous
convicted cases |
Periodic detention
No % |
Community prog
No % |
Community service
No % |
Supervision No %
|
0
|
1300 6.7
|
117 13.2
|
2351 27.4
|
993 19.1
|
1
|
1432 7.4
|
101 11.4
|
1536 17.9
|
609 11.7
|
2
|
1484 7.6
|
84 9.5
|
937 10.9
|
500 9.6
|
3-5
|
4041 20.8
|
166 18.7
|
1574 18.3
|
956 18.4
|
6-10
|
4664 24.0
|
162 18.3
|
1120 13.0
|
957 18.4
|
11-20
|
4189 21.5
|
167 18.8
|
759 8.8
|
755 14.6
|
21-50
|
2289 11.8
|
85 9.6
|
302 3.5
|
410 7.9
|
More than 50
|
53 0.3
|
4 0.5
|
6 0.1
|
7 0.1
|
TOTAL |
19452 100.0
|
886 100.0
|
8585 100.0
|
5187 100.0
|
Average number of previous convicted cases |
9.6
|
8.3
|
4.4
|
6.9
|
The most recent sentence prior to the current case, and also other past
sentences, have a significant impact on the probability of
what sentence an
offender will receive. Previous sentences are the most significant of the
criminal history variables. Essentially,
the previous sentence increases the
risk of the same sentence or a more serious sentence and decreases the risk of a
less serious
sentence, all other factors being
equal.[202]
[203]
Most recent previous sentence
|
Periodic detention
No % |
Community prog
No % |
Community service
No % |
Supervision
No % |
First offender |
1300 6.7
|
117 13.2
|
2351 27.4
|
993 19.1
|
Custodial
|
1657 8.5
|
92 10.4
|
204 2.4
|
347 6.7
|
Periodic detention
|
6918 35.6
|
190 21.4
|
717 8.4
|
864 16.7
|
Community prog
|
160 0.8
|
38 4.3
|
71 0.8
|
57 1.1
|
Community service
|
1284 6.6
|
62 7.0
|
993 11.6
|
344 6.6
|
Supervision
|
750 3.9
|
59 6.7
|
301 3.5
|
386 7.4
|
Monetary
|
5605 28.8
|
224 25.3
|
3091 36.0
|
1575 30.4
|
Other
|
1778 9.1
|
104 11.7
|
857 10.0
|
621 12.0
|
TOTAL
|
19452 100.0
|
886 100.0
|
8585 100.00
|
5187 100.0
|
Forecasted use of community-based
sentences[204]
In the
table below the forecasted numbers of offenders starting community-based
sentences over the next five years, if current conditions
continue, are
presented.
Sentence |
2000/01
|
2001/02
|
2002/03
|
|
Periodic detention |
23,466
|
23,622
|
23,781
|
23,940
|
Supervision
|
10,009
|
10,084
|
10,161
|
10,239
|
Community service
|
10,342
|
10,327
|
10,396
|
10,465
|
Community programme
|
429
|
432
|
435
|
439
|
TOTAL
|
44,246
|
44,465
|
44,773
|
45,083
|
It has been forecast that the use of periodic detention will
stabilise at its present level, based on the reversal in 1997 of the
downward
trend in its use after 1993, and there being no indication that there will be
significant decline in the use of other sentences.
The small ongoing increase
in the forecasted figures is due to the projected increases in the volume of
cases coming before the
courts. Between 1995 and 1997 the use of supervision
stabilised following the sharp increase between 1993 and 1995 and this level
of
use is forecast to continue with a small increase due to the increasing volume
of cases. The general decreasing trend in the
use of community service is
predicted to continue, although only very gradually, for the next 2 to 3 years.
This is because with
the Department of Courts’ new powers and procedures
for obtaining payments from fine defaulters it is expected that fewer
alternative
sentences will be imposed. (It has been estimated that in 1996, 44%
of community service new starts were fine defaulters and that
in 1997 the
proportion was 34%.) It has been predicted that the number of new starts to
community programme will gradually stabilise
over the next few years. This is on
the basis that numbers are already so small, that there will remain a core of
support among probation
officers and judges for community programmes and that at
least some regions are actively promoting the sentence.
A number of
changes currently being implemented may impact on the use of community-based
sentences and affect the accuracy of these
forecasts. For example, more
accurate assessments of offenders following the full implementation of
Integrated Offender Management
(IOM) in the Department of Corrections may change
the relative use of the different sentences. Another possibility is that
expansion
of the Community Wage Scheme may make community service placements
more difficult to arrange. Enforcement operations targeting serious
traffic or
property offences can also have significant flow-on effects on the number of
community-based sentences imposed. A significant
increase in the issuing of
infringement fees because of the new road safety legislation may lead to
increasing community-based sentences
depending on the extent to which they
become subject to fines enforcement
procedures.
Summary
On
30 June 1998, the number of people in New Zealand serving community-based
sentences was 21,442. In 1998, a total of 37,348 imprisonable
cases resulted in
one or more community-based sentences being the most serious sentence imposed.
By way of comparison, 9,492 imprisonable
cases resulted in a custodial sentence
that year (the average annual muster was 4,800) and 32,421 imprisonable cases
resulted in
a monetary penalty as the most serious sentence
imposed.
There have been very substantial changes in the use of periodic
detention between 1982 and 1998. In 1998, 26% of all proved cases
for
imprisonable offences resulted in a periodic detention sentence compared to 12%
in 1982. The number of offenders receiving periodic
detention increased from
7,068 to 22,838 in that period. There has been a greater use of periodic
detention in the 1990s compared
to the 1980s for offences of low to moderate
seriousness. However, other analysis has shown that the increased use is also
due to
decreased use of imprisonment for certain offences following the change
of emphasis in the Criminal Justice Act 1985 to the use of
alternatives to
imprisonment. Also, around half the increase is due to changes in the type of
offences and type of offenders coming
before the courts, especially an increase
in the number of persistent offenders.
Community service is the next most
frequently imposed community-based sentence after periodic detention. Its use
increased rapidly
in the late 1980s and early 1990s, and the indications are
that it is now more widely used as an alternative to monetary penalties
and less
as an alternative to imprisonment. A slight increase in the use of monetary
penalties in the late 1990s has coincided with
a reduced use of community
service.
Following its introduction in 1985 the sentence of supervision
was not imposed as often as probation, which it had replaced. However,
its use
kept on increasing in the 1990s until a levelling off in 1996 and subsequent
years. The overall increase in the number of
offenders sentenced to
supervision, especially between 1991 and 1995, can to a significant extent be
explained by the rapid increase
in the number of domestic and other violent
cases prosecuted, combined with an increase in the use of supervision for those
offences.
The sentence of community programme continues to be
infrequently imposed. The number of cases resulting in community programmes has
never exceeded 1.6% of the convictions for imprisonable cases. The number of
such cases that resulted in a community programme decreased
from 780 in 1996 to
431 in 1998. Mäori offenders receive the sentence of community programme
more frequently than non-Mäori.
In 1998 for example, community programme
was imposed on 215 Mäori and 84 non-Mäori. However, despite a higher
proportion
of Maori than non-Mäori receiving the community programme
sentence, this sentence was imposed on less than 1% of all imprisonable
non-traffic cases involving Mäori in 1998.
The level of use of
community-based sentences in New Zealand is forecast to increase a little
between now and 2003 because of a predicted
increase in the number of cases
coming before the courts. A key question is therefore whether or not this
extensive use of community-based
sentences represents a cost -effective
sentencing practice. This question will be explored in the following
chapter.
A claim
often made for community-based sanctions is that, to the extent that they are
used as alternatives to imprisonment, they save
money, and that the savings
achieved equal the difference between the average sentence costs per annum for
each offender. The first
thing to note in respect of this claim is that
different types of community-based sentences are likely to have quite different
costs
depending on the duration, level of intensity and enforcement of the
sentences, as well as on the range of supportive services (including
non-government services) provided to control, supervise and support the
offenders in their assigned work, programme, or code of behaviour.
This will be
dependent to some extent on the selection of offenders for the particular
sentences.
Fiscal costs
The
latest costs for the Department of Corrections associated with community
sentences and imprisonment in New Zealand are as
follows:
[205]
Sentence type
|
Per annum
$ |
Per month
$ |
Average sentence
months |
Average sentence cost
$ |
Imprisonment (average)
|
52,935
|
4,411
|
11.8
|
52,050
|
Maximum security
|
71,529
|
|
|
|
Medium security
|
53,677
|
|
|
|
Minimum security
|
52,044
|
|
|
|
Periodic detention
|
2,725
|
227
|
6.5
|
1,476
|
Supervision
|
2,075
|
173
|
6.5
|
1,125
|
Community programme
|
1,364
|
114
|
8.3
|
946
|
Community service
|
1,104
|
92
|
3.5
|
322
|
In terms of assessing the cost effectiveness of various sentences,
however, there are certain considerations that make the average
annual costs per
offender of community-based sentences not directly comparable with the average
annual cost per offender of imprisonment
or the cost of one type of community
sentence comparable with another. These considerations include:
Net-widening
Net-widening
is the term used to describe the phenomenon of increasing the number of people
under the control of the correctional
system through the introduction of a new
sanction. This may occur even though it was the intention that the new sanction
should
be imposed on some offenders in lieu of a more severe sanction. It is
also used to describe increasing the severity of sanctions
for offenders. This
can happen when a new sanction is introduced to reduce the use of a more severe
sanction and instead it reduces
to a greater extent the use of a sanction of
lesser severity. Often it happens when non-custodial sanctions are introduced
to replace
imprisonment and they come to be used, instead, as substitutes for
more traditional sanctions such as probation or fines. Meanwhile,
the use of
imprisonment goes on as before.
A hypothetical scenario that would
illustrate this effect could start with a situation where 20% of convictions
result in a sentence
of imprisonment and 80% result in probation. A new
sanction of intensive supervision is then introduced as a less severe and less
costly alternative to imprisonment for some offenders currently receiving
imprisonment. The intended result is to reduce the use
of prison sentences by
say 10%.
However, research has shown that the introduction of community
sanctions as alternatives to imprisonment does not usually bring about
the
expected reduction in custodial
sentences.[206] Instead, to a much
greater extent, they become alternatives to other alternatives to custody. In
terms of the hypothetical scenario,
this means that the percentage of offenders
receiving imprisonment decreases to a small extent only and intensive
supervision is
mostly imposed on offenders who previously received probation,
which is a less severe and intrusive disposition than intensive supervision.
The net result is therefore an increase in sentence severity due to those
probationers now serving intensive supervision. Contrary
to the original
intention, it is the less severe sanction of probation rather than the more
severe one of imprisonment which is mainly
diminished by intensive
supervision.
This starting point, intended result and actual result are
illustrated below:
Imprisonment 20%
|
Probation 80%
|
Imprison-
ment 10% |
Intensive supervision
10% |
Probation 80% |
Imprisonment
18% |
Intensive
supervision 10% |
Probation 72% |
The process does not stop here. Although 8% of the offenders who would
previously have received probation will be placed under intensive
supervision,
there is likely to be no real decrease in the overall use of probation. The
missing 8% of probationers will be replaced
by a selection of those offenders
who used to receive a less severe sanction of, say, a fine. The process can
continue to have this
domino effect in the direction of less severe sanctions so
that it eventually involves those offenders who previously were diverted
from
the correctional system and received no sanction, thus increasing the overall
number of people in the correctional system.
This can be illustrated as
follows:
d) The net widening effect
|
|
Expanded use of
probation |
72% + 8% |
Imprisonment
18% |
Intensive
Supervision 10% |
Probation
72% |
Fines
Reduced by 8% |
Former use of
Imprisonment 20% |
Former use of probation
|
80% |
|
Two things are happening that were not intended. First, imprisonment
rather than one of the new community sanctions continues to
be used for crimes
that are at an intermediate level. Second, the more severe community sanctions
are being used for some of the
least serious offences, where they are
disproportionately onerous, instead of being imposed, as intended, for offences
of medium
gravity.
Recent data show that in New Zealand extending the
range of community-based sentences did lead to a substantial increase in the use
of these sentences. Although imprisonment rates for some offences did decrease,
these decreases were much smaller than the overall
increases in the use of
community-based sentences. In particular, there are indications that community
service is now being used
where previously (in the 1980s) a monetary penalty
would have been imposed. This suggests that net-widening has
occurred.[207]
Breaches
of community-based sentences
Even if savings are made by diverting
some offenders from prison to community-based sentences, breaches of
community-based sentences
reduce the savings to the criminal justice system of
those sentences. For example, the net savings in the number of prison beds
would be the number of persons diverted, less the number of persons sentenced to
imprisonment for breaching the alternative sentence
or committing new crimes
while not incapacitated by a prison sentence. In New Zealand periodic detention
has a breach rate of about
20% (see table below) and in 1997 18% of these cases
resulted in imprisonment (in 1988 it was as high as 26%) with an average
custodial
sentence length of 1.9
months.[208] The 1997 prison
census revealed 50 inmates whose major offence was breach of periodic detention
out of a total of 4,935 sentenced
inmates.[209] Breaching the
conditions of a supervision sentence or a community service sentence is not an
imprisonable offence and there is no
offence of breaching community programme.
However, a review of these sentences can result in a sentence of imprisonment
being imposed.
Where net-widening occurs, breaches can produce a net
increase in imprisonment. If 30% of offenders sentenced to a particular
community-based
sentence are diverted from prison and 70% from fines, diversion,
or another community sentence for which imprisonment is not available
as a
sanction for breach, then the proportion of that 70% who have the sentence
revoked and are imprisoned represent a new demand
for prison beds, the costs of
which may exceed the savings made from the 30% diverted from
imprisonment.
The table below shows the trends in convictions for breaches of community-based sentences over the last decade. As noted above, in New Zealand a breach of a community-based sentence can lead to a review of the sentence by the court and the offender can be re-sentenced on the original charge for which the community-based sentence was imposed. This type of breach of sentence resulting in a sentence review rather than a prosecution for breach is not included in the data below.
Sentence type
|
1989
|
1990
|
1991
|
1992
|
1993
|
1994
|
1995
|
1996
|
1997
|
1998
|
Periodic detention
No of sentences No of cases involving a breach Breach rate (per 1000 sentences) |
19070 3406 179 |
19885 3368 169 |
23336 3786 162 |
22608 3935 174 |
23387 4256 182 |
22131 4507 204 |
20854 4517 217 |
20584 4574 222 |
21110 4355 206 |
23015 4586 199 |
Supervision
No of sentences No of cases involving a breach Breach rate (per 1000 sentences) |
6680 462 69 |
5666 500 88 |
6062 456 75 |
6053 520 86 |
7484 563 75 |
9808 683 70 |
10316 657 64 |
10563 551 52 |
10402 616 59 |
10760 589 55 |
Community service
No of sentences No of cases involving a breach Breach rate (per 1000 sentences) |
4406 100 23 |
5600 165 29 |
9318 254 27 |
9906 341 34 |
9965 447 45 |
9662 414 43 |
8890 399 45 |
8293 328 40 |
8068 324 40 |
8774 276 31 |
Periodic detention is the community-based sentence that has the highest breach rate (over 5 times that of community service and 3½ times that of supervision). This is likely to be because of the different characteristics of the offenders receiving that sentence and the fact that it is closely supervised and breaches will therefore nearly always be detected. It should also be noted that community service is imposed with the consent of the offender and will generally require the employing authority to report any breach in order for it to come to the attention of the system and action to be taken.
Convictions for breach of periodic detention increased substantially over the decade. The increase in the period between 1989 and 1991 is likely to have been partly due to an increase in the use of the sentence. The increase in breaches between 1992 and 1996, however, occurs despite the use of periodic detention decreasing, then levelling off. It therefore appears that the proportion of offenders breaching periodic detention increased, or else the likelihood of periodic detention wardens laying informations in court for such breaches increased, or both. In 1997 and 1998 the number of periodic detention sentences increased and the breach rate declined.
As the proportion
of offenders who receive imprisonment for breach of periodic detention has
declined there has been an increase in
the use of periodic detention as the
sentence for this offence (in 51% of cases in 1995 compared to 29% of cases in
1983).[211]
The breach rate
for supervision declined from 1993 to 1996, increased in 1997, and then fell
again the following year. The number
of convictions for breaching community
service in 1998 was nearly triple the number in 1989. The increase was most
apparent between
1989 and 1993 (as was the breach rate) but decreased over the
next 5 years. This pattern is similar to the use of community service
as a
sentence over the same period except for an increase in the number of sentences
in 1998.
The proportion of offenders prosecuted for breach of a
particular sentence may tell us as much about the degree of tolerance towards
violations or the effectiveness of the mechanisms for dealing with breaches as
it does about true compliance with the sentence.
With community service it is
the community sponsor (“employing authority”) that oversees the
offender (although statutory
responsibility for overall supervision rests with
the community probation service). Some sponsors, at least in the past, have
avoided
any enforcement role in the event of the offender not fulfilling the
sentence requirements and have chosen not to inform the probation
service of
breaches because they have no wish to appear in court as a witness against the
offender.[212]
Reviews
of community-based sentences
There are also the costs associated with
the community probation service actioning reviews of community-based sentences
where there
are difficulties over compliance. These are different from actions
for breach of sentence. The reviews involve applications to
the courts and may
result in changes to the conditions of a sentence, cancellation of a sentence,
or a new sentence.
Combined
sentences
The extent to which community-based sentences are used
concurrently with each other increases the cost of their imposition. In New
Zealand the two community-based sentences of periodic detention and supervision
can be imposed concurrently. In 1998 supervision
was imposed as the most
serious sentence in 5,331 cases. It was imposed in a further 3,735 cases in
combination with periodic detention.
To add a sentence of supervision to one of
periodic detention significantly adds to the cost of the total sentence (see
table
24).
Re-offending/Reconvictions
Any
full cost effectiveness analysis of the different community and custodial
sentences needs to take into account any differential
impact that the sentences
may have on re-offending. In other words, in terms of later criminality by
convicted and sentenced offenders,
do community-based sentences diminish or
increase crime compared with comparable groups of offenders sentenced to
imprisonment or
to monetary penalties? If community-based sentences produce
higher re-offending rates than is the case with the other sentences,
then there
is an additional cost involved with community-based
sentences.
Reconviction rates provide the only viable means of assessing
the effectiveness of particular sentences in preventing re-offending
but are
limited in their usefulness in making comparisons for two principal reasons.
One is that reconviction rates are only an
approximate measure of reoffending,
since they record only offending that has been successfully detected and
prosecuted. The other
is that reoffending is influenced more by other factors
than by the sentence. Factors closely associated with reconviction are age,
gender, ethnicity, and criminal
history.[213] Different types of
sentences tend to be given to different sorts of offenders with widely different
probabilities of reoffending.
The table below is based on a study of
reconviction rates for offenders in the two years following the conviction date
of their first
1991 proved case or, for offenders sentenced to imprisonment,
within two years of their estimated release date. All offenders who
had one or
more proved cases involving an imprisonable offence in 1991 were included in the
data-set (about 77,000 offenders). The
figures show the predicted probability
of reconviction for each sentence type calculated from a statistical model of
reconviction
rates, using current and past offending and demographic
characteristics of offenders as predictor variables. This is compared with
the
actual reconviction rate. [214]
Predicted reconviction percent
|
Actual reconviction
percent |
|
Imprisonment |
83.0
|
81.8
|
Periodic detention
|
74.4
|
76.9
|
Community care/programme
|
73.6
|
69.7
|
Community service
|
50.7
|
51.8
|
Supervision
|
65.2
|
66.4
|
Monetary penalty
|
47.7
|
46.2
|
Other sentence
|
63.2
|
63.7
|
No sentence
|
55.9
|
53.4
|
Reconviction rates for most of the sentences are very close to the
rates that were predicted for each group on the basis of the criminal
histories
of the offenders (e.g. the seriousness and frequency of past convictions) who
received that sentence, along with their
age, gender, and ethnicity. In other
words, the fact that community service had a significantly lower reconviction
rate than the
other community-based sentences is accounted for by the type of
offenders receiving that sentence rather than the type of sentence
per
se.
The results of the modelling indicated that the most important
variables for predicting recidivism were the criminal history and the
demographic group (age, gender, ethnicity) of the offender. None of the
sentence types were highly significant predictors of recidivism.
Community
programme and prison had no significant effect on recidivism rates, relative to
monetary penalties, once other factors
(such as differences in criminal history
and current offending) were taken into account. Periodic detention, community
service,
and supervision appeared to be associated with an increased risk of
recidivism, relative to monetary penalties, although this may
mean that people
sentenced to those community-based sentences have other characteristics that
increased the likelihood of re-offending
that could not be measured
statistically. Previous sentences of imprisonment or any community-based
sentence appeared to increase
the risk of recidivism. The model also indicated
that the seriousness of the current offence, despite being a key factor in
determining
which sentence is imposed, has relatively little impact on
recidivism following completion of the
sentence.[215]
The above
findings are consistent with a 1984 study of recidivism within one year
following the imposition of either a sentence of
community service or of
periodic detention.[216] The
analysis found an overall reconviction rate of 38% for the community service
group and 59% for the periodic detention group.
However, reconviction rates
varied significantly when the samples were disaggregated. For example, the
highest reconviction rate
following a sentence of community service (74%) came
from a subgroup who had not received additional probation and who were 17 years
old or younger at the time of their first conviction. The lowest rate (25%)
came from the group who had not received probation and
who were 23 years or more
at the time of their first conviction. Similarly, the highest reconviction rate
following periodic detention
(80%) came from a subgroup who had not received
additional probation and who were 17 years or younger at the time of their first
conviction. The lowest rate (25%) came from the group who did not receive
probation and who were 23 years or more at the time of
their first
conviction.[217]
The
study concluded that “reconviction rates depended to a great extent on
factors other than the actual sentence”. The
analysis
showed that when certain of these factors were taken into account when comparing the sentences of community service and periodic detention, in many cases there was no significant difference in the relative reconviction rates. Specifically, there was no difference in the reconviction rates of community service and periodic detention groups when extreme groups were compared – the highest risk group and the lowest group.[218]
In the case of moderate risk groups, there was a difference in
reconviction rates between the two sentences. However, this did not
necessarily
mean that those who posed a moderate risk of re-offending would be less likely
to be re-convicted if the sentence of
community service rather than periodic
detention was imposed. A different interpretation was favoured for 3 reasons.
Firstly, as
reconviction rates varied greatly in relation to factors besides the
sentence given, the validity of an apparent difference between
sentences was
questionable. The second reason was that the variables utilised were not fully
inclusive of all factors that may impact
on individuals’ reconviction
rates. For example, employment, family, and education details were excluded
from the analysis.
Thirdly, the study did not examine post-sentence
circumstances that might have made a difference to reconviction
rates.[219]
The table below
shows reconviction rates after one and two years, for sentences imposed in 1995.
Reconviction rates for custodial
sentences of one year or less are included as a
comparison. As already noted, the most important variables for predicting
recidivism
were the criminal history and the demographic group (age, gender,
ethnicity) of the offender. None of the sentence types were highly
significant
predictors of
recidivism.
[220]
Sentence
|
One year reconviction rate
|
Two year reconviction rate(2)
|
Prison for one year or less(1)
|
0.63
|
0.80
|
Periodic detention
|
0.60
|
0.73
|
Community programme
|
0.47
|
0.63
|
Community service
|
0.37
|
0.51
|
Supervision
|
0.45
|
0.61
|
Monetary
|
0.30
|
0.41
|
Other
|
0.39
|
0.51
|
Note:
(1) Reconviction rates are within one or two years from the estimated date of release from prison. People given a custodial sentence of longer than one year in 1995 were excluded from the table as in most cases, all or part of the one and two years after the prison sentence was imposed was spent in custody which limits the opportunity for reoffending and hence does not allow a valid comparison with reoffending rates for non-custodial sentence types.
(2) Two year reconviction figure excludes data for 6% of cases where there
was less than two years between the person’s estimated
date of release
from prison and when the data on reconvictions were
extracted.
Fast-tracking
Re-offending
increases in significance when it also leads to the fast-tracking of offenders
through the range of available penalties
towards imprisonment. This arises when
there is a general perception among the judiciary that when one type of penalty
has been
tried on an offender and he or she re-offends, then that penalty has
failed and a more severe one must be imposed. In other words,
when there is
repeat offending, sentences become progressively more severe with each new
offence, causing offenders to escalate up
the penalty scale. Fast-tracking then
occurs when offenders start receiving penalties out of proportion to the gravity
of the current
offence. Thus, an offender sentenced to community service
relatively early in his or her offending history, for a comparatively
minor
offence, may be sentenced to periodic detention for a subsequent offence of
similar severity rather than community service
again or a fine, which might have
been the penalty if it had been a first offence. A further offence is then
punished with imprisonment.
In comparison, someone who receives a fine at the
early stage may receive community service for the subsequent offending. In
reality
persistent offenders do not progress step by step up a ladder of
sentences since they neither consistently offend at the same level
of
seriousness, nor offend at a consistently increasing level of seriousness.
Rather they will engage in a wide range of offending
of varying seriousness and
type which will result in a variety of penalties before they end up in prison
(unless at any stage they
commit an extremely serious offence). Nevertheless,
“fast-tracking” may be the generalised trend, with sentences
increasing
in severity if offending were to remain at the same
level.
Recent research to determine the relative influence of various
statistical factors on
sentencing[221] does show that the
probability of receiving a particular community-based sentence is strongly
influenced by the type of any community-based
sentence served in the past. The
research also shows a degree of escalation taking place with sentencing. That
is, the previous
sentence increases the risk of the same sentence or a more
serious sentence being imposed, all other factors being equal. For example,
the
probability of receiving a periodic detention sentence is higher if the most
recent or previous sentences are periodic detention
or community service.
Having a previous periodic detention sentence increases the probability of
receiving a prison sentence and
decreases the probability of a community service
sentence or monetary penalty.
If an offender has already served a
community service sentence then they are more likely to get periodic detention
or supervision
or community service again as the next sentence, but less likely
to get a monetary penalty. Similarly, once a periodic detention
sentence has
been served the less serious community service is less likely than periodic
detention or imprisonment to be the next
sentence, even when the seriousness of
the offence and criminal history of the offender are taken into account.
However, it needs to be noted that although the likelihood of
imprisonment is relatively higher for offenders whose most recent sentence
was
periodic detention, the use of imprisonment for this group of offenders has
decreased considerably since 1983. In that year
32% of offenders whose last
sentence was periodic detention received a custodial sentence as their next
sentence and in 1995 this
had decreased to 16%. There has also been a decline
in the use of imprisonment in general for offenders with several previous
convictions.
Thus, the impact of fast-tracking has been reduced in practice by
a decrease in the use of imprisonment for these
offenders.[222]
Other
considerations
There are three other considerations that complicate
cost comparisons: transaction costs, marginal costs, and costs to the wider
community.
The first of these considerations is that, in addition to
the additional sentence costs of the net-widening process that shifts those
who
might have been fined to a community sentence and then shifts some of those to
prison because of a breach of sentence, this process
creates transaction costs.
These are new expenses for prosecutors, the courts, and the probation service in
administering each of
those violations and transfers.
The second
consideration is that imposing a community sentence on an offender who would
otherwise have received 6 months or 1 year’s
imprisonment does not save
the prison system the average cost of an inmate serving six months or a
year’s prison sentence.
When the marginal costs of 50 to 100 inmates in a
prison system of 5,000 inmates (spread over 19 institutions) are compared with
the marginal costs of placing that number of offenders in a small programme then
the potential cost savings are diminished. Unless
the reduction in the number
of inmates reaches a level which enables a prison or a prison unit to be closed
or not opened, the only
savings from diverting that number will be incremental
costs for food, laundry, supplies, and other routine items. The major costs
of
payroll, administration, debt servicing, maintenance, and depreciation will not
be affected to any great extent. In other words,
savings in the prison system
will only accrue when the alternative sanctions reach a threshold of usage that
allows institutional
changes in costs of imprisoning.
Third, there are
the costs of crimes (often not “cleared” by the police) that will
occur if offenders are assigned to
a community sentence rather than imprisoned.
This specifically relates to crimes committed in the community while the
offender is
on the sentence rather than recidivism in general, which is
discussed above. It is likely that averting crimes through incapacitation
produces savings to the larger community not possible with alternative
sanctions, although estimates of the level of savings have
been contested,
particularly in terms of the supposed number of crimes prevented for each inmate
confined and the dollar amount that
that
saves.[223]
A full
cost-effectiveness analysis of community-based sentences would also have to take
into account such factors as the benefits
of the work done by offenders on
periodic detention or community service. A recent Department of Corrections
publication states
that the estimated value of the work done by detainees is $18
million per annum.[224] There are
also the benefits to offenders of attending programmes while on supervision or
community programme. These might include
the learning of new
skills.
Effects of the availability of
community-based sentences on the use of imprisonment
The evidence
available from overseas seems to point to it being unlikely that a sustainable
reduction in the prison population can
be brought about through expanding
community-based sentencing options. Even when such sentences have been
specifically designed
to reduce imprisonment this appears to be difficult to
realise. Studies monitoring imprisonment rates in the United States, Canada,
and Britain during the 1970s and 1980s, found that in spite of the development
and implementation of a range of alternative community-based
sentences,
imprisonment rates kept climbing. In the United States and Canada there were
also dramatic increases in corrections expenditure
and personnel over this
period.[225] The explanation for
this was that it was because many of those receiving the alternatives would not
have gone to prison in the first
place and when they were being used as genuine
alternatives they were nearly always impacting on the use of the shortest
custodial
sentences and thus having little impact on prison
musters.[226] Both these trends
(increasing musters and corrections expenditure) have also shown up in New
Zealand.
However, any historical association between a rising prison
population or the rate of imprisonment and an expanding system of community
sanctions does not mean that the latter provided the means for the former to
happen, and certainly does not establish a direct causal
link between the two
trends. There are likely to be other factors at work which bring about changes
in the prison population. Such
factors include changes in policing practices
(law enforcement), legislation (e.g. penalties), sentencing by the courts (e.g.
length
of prison sentences or the imposition of imprisonment for particular
types of offences), crime rates, and the types and seriousness
of offending
being dealt with by the courts, the circumstances and criminal histories of
offenders being sentenced, and changes to
parole eligibility or final release
dates for prison inmates. In New Zealand the size of the prison population is
particularly sensitive
to the number of serious violent offenders prosecuted
because they serve by far the longest sentences.
In New Zealand the
percentage of convicted imprisonable cases resulting in imprisonment has changed
relatively little, fluctuating
between 8% and 11% in the period 1982 to 1998.
However, the indications are that there has been a relative decrease in the use
of
imprisonment in that with most offences other than the more serious violent,
sexual, and drug dealing offences there was almost twice
the likelihood of
receiving a prison sentence in 1983 than there was in 1995. This reflects the
introduction of presumptions against
the use of imprisonment for less serious
property offences by the Criminal Justice Act 1985 and the introduction of
suspended prison
sentences in 1993. This is strong evidence that the
availability of community-based sentences has reduced the range of offenders
being sentenced to imprisonment.
Nevertheless, the prison population has
increased by more than 50% in the last decade (1989-1998). The factors driving
the growth
of the prison population have been significant increases since 1983
in the average seriousness of cases being prosecuted and in the
average number
of previous convictions of convicted offenders (fewer first offenders and more
very persistent offenders), and increases
in sentence lengths for very serious
offences. There has been an increasing proportion of violent offenders in the
prison population.
In particular there has been a significant increase in the
length of prison sentences served for serious violent offenders due in
no small
part to the removal of parole for serious violent offenders and an increase in
the minimum non-parole periods for inmates
serving life imprisonment and
preventive detention. [227] The
growth in New Zealand’s prison population is examined in detail in The
Use of Imprisonment in New Zealand
(1998).[228]
Summary
There is no
evidence to suggest that community-based sentences are generally more or less
effective than imprisonment in terms of
recidivism, although the specific
programme content of any sentence may of course have an impact on recidivism.
Therefore, the relative
costs of the various sentences become important
considerations. While it is the stated purpose of the community-based sentences
to act as an alternative to more costly sentences of imprisonment, the overall
cost savings from the availability of community-based
sentences may be
considerably less than what at first appears likely to be the case, for the
following reasons:
The points noted above reduce the chances of
achieving net cost savings. They also mean that the difficulties in making any
calculation
of those savings are formidable and would involve making a
considerable variety of
assumptions.[229] A true
cost-benefit analysis of the impact of community-based sentences would only be
possible if sentences were imposed in accordance
with strict guidelines. If
this were the case it would be possible to determine the savings or additional
costs which might result
from changes to the guidelines which, for example,
caused all cases of a particular offence type to result in one specific sentence
rather than another. However, the sentencing menu provided by the Criminal
Justice Act 1985 was deliberately established to provide
the courts with a range
of sentencing options, whereby any particular sentence imposed would be
determined on the basis of a very
wide range of factors (including aggravating
and mitigating circumstances) specific to the individual case rather than by,
for example,
offence type only. It is not possible, therefore, to assume on the
basis of statistical data, what alternative sentences might have
been imposed
had the sentencing menu been more restricted. The high premium placed on
judicial discretion in the sentencing process
means that an accurate
cost-benefit analysis of the impact of community-based sentences is not
possible.
6. International Comparisons
In
order to provide a comparative context for New Zealand community-based
sentencing options, a number of international jurisdictions
were examined. The
selected jurisdictions were England and Wales, Scotland, Ireland, Australia,
Canada, the United States of America,
Germany, the Netherlands, and Finland.
The detailed description of the community-based sentencing based options in
these jurisdictions
is contained in Appendix 1. The table below summarises the
community-based sentencing options available in the above jurisdictions.
Probation
supervis/ correction order |
Intensive
probation, supervision, correction order |
Comm
service order |
Comm
based order/ combin-ation order |
Comm-unity
program |
Attend-ance/
day report centre |
Training order |
Periodic
detention |
Curfew
orders |
Punitve
work order |
|
Australia[230] |
(7) |
(3) |
(7) |
(2) |
|
(3) |
|
(2) |
|
(1) |
Canada |
|
|
|
|
|
|
|
|
|
|
England & Wales |
|
|
|
|
|
|
|
|||
Scotland
|
|
|
|
|
|
|
|
|
|
|
Finland |
|
|
|
|
|
|
|
|
|
|
Germany |
|
|
|
|
|
|
|
|
||
Ireland |
|
|
|
|
|
|
|
|
|
|
Nether- lands |
|
|
|
|
|
|
|
|
||
U.S.A[231] |
|
|
|
|
|
|
|
|
|
|
New Zealand |
|
|
|
|
|
|
|
|
|
|
The table above highlights the following:
Probation
As
the table above illustrates, a probation type sanction is a commonly available
community-based sentencing option across the international
jurisdictions.
Probation is available in all but two jurisdictions, Finland and the
Netherlands. Its overall objective is generally
the control and monitoring of
an offender in the community. Conditions, which emphasise the prevention of
future offending, are
applicable (although the options vary in each
jurisdiction). The sentencing court generally imposes these conditions and the
probation
service is responsible for the ongoing sentence administration and
offender supervision.
The method by which probation is utilised varies
among the jurisdictions. In England and Wales, probation exists as a sentence
in
its own right[232] and is
imposed as an alternative to imprisonment. German use of probation is
restricted to concurrent application with a suspended
sentence of imprisonment
for sentences of up to two years. In the U.S.A it is possible to combine
probation with suspended sentences
although it remains available as an
“intermediate” or community-based sentencing
option.[233] Judges may also
decide to employ ‘split sentencing’, which is the imposition of a
jail term followed by time served
on probation.
Similarly, the New
Zealand judiciary can impose a sentence of supervision cumulative on a term of
imprisonment of 12 months or
less.[234] Supervision can be
imposed concurrently with either a suspended sentence of imprisonment or
periodic detention or, as a sentence
‘in its own right’. In Ireland
the courts impose probation orders when offenders are discharged conditionally
on entering
into a recognisance to keep the peace and be of good behaviour. The
Canadian judiciary can impose probation in a number of sentencing
situations: as
part of a conditional discharge; as a condition of a suspended sentence; as part
of an intermittent sentence; as a
sentence in its own right; or following a
prison term of less than 2 years.
The type of offenders targeted for
probation is different among the jurisdictions. Probation in England and Wales
is specifically
designed to target offenders with a high risk of reoffending.
Similarly, Germany targets high-risk offenders, illustrated by the
use of
probation only in conjunction with a suspended sentence. However, in Australia,
probation is considered suitable for an offender
who “has not yet
manifested a high degree of criminality but who does show signs of personal
inability to cope with
stress”[235], the low to
medium risk offender. In both Ireland and the USA the sentence of probation (as
distinct from intensive probation/supervision/correction
orders) is targeted
towards the first-time offender, the non-serious offender and/or the casual
offender.
The permitted duration of a sentence of probation in England
and Wales, Ireland, and Canada is 3 years whereas in New Zealand, the
maximum
length is 2 years. For Australia the duration of probation varies across the
individual States and Territories, although
it is generally between 2 to 5
years. Germany has a discretionary maximum duration for probation, anywhere
between 2 to 5 years
(for sentences of imprisonment of up to 2 years,
subsequently suspended). One commonality in all these jurisdictions is the
existence
of breach procedures, which allow for the terms of an order to be
either modified or revoked. When revoked, the offender is re-sentenced
and a
sentence of imprisonment is an option available to the
court.
Community
service
The sentence of community service is available in all the
selected jurisdictions, albeit in different
forms.[236] In each case the
objectives are similar and involve reparation to the community through the
performance of unpaid work (direct reparation
to the victim can occur in
Australia). The appropriate work site locations vary among the jurisdictions,
with activity for community
(not profit) organisations cited the most
frequently. Additional objectives of community service include the punishment
of offenders
through the deprivation of ‘free time’, and the
facilitation of their reintegration back into the
community.[237]
In four
jurisdictions, Ireland, England and Wales, Australia, and New Zealand, the
decision to impose community service is not dependent,
in the first instance, on
a decision to imprison. Here, community service is a sentencing option in its
own right. Irish courts
can impose community service for offences which, in the
court’s opinion, would otherwise have received a term of
imprisonment.[238] The English
and Welsh courts can impose community service concurrently with curfew orders,
or with a fine. It is not possible to
combine community service with a prison
sentence (including a suspended one) or with a probation order (except as part
of a combination
order). The Australian States or Territories may impose
community service either in substitution for, or in default of, payment
of
fines. In New Zealand, for an imprisonable offence, community service may also
be imposed in lieu of fines, and also for other
offences when there has been a
fine default.
However, the situation is different for both the Finland
and Netherlands jurisdictions where the decision to impose community service
follows the initial decision to impose an unconditional prison sentence.
Finland’s process is that the community service sanction
is only imposed
as an alternative to imprisonment once the sentencing decision is made applying
normal sentencing principles and
criteria. If the result is unconditional
prison then the court may substitute the sentence with one of community service,
if certain
requirements are fulfilled. When commuting imprisonment into
community service, one day in prison corresponds to one hour of community
service (e.g. 2 months of a custodial sentence becomes approximately 60 hours of
community service).
Within the Dutch jurisdiction, community service can
also only be imposed as a substitute for an unconditional prison sentence of
6
months or less. Additionally, community service can be imposed for a
part-suspended-part-unconditional prison sentence when the
unconditional
component is 6 months or less. Community service cannot be imposed as an
alternative to a suspended prison sentence,
a fine, or a fine-default
detention.
Community service in Canada exists only in the form of a
condition attached to a probation order (a maximum of 240 hours is set).
This
was similar to German sentencing practice until the 1980s when community service
was extended as an option for fine defaulters
who would have otherwise received
imprisonment for non-payment of a fine.
Two interesting divergences from
the New Zealand use of community service exist. The first is within the Dutch
regime where compliance
with community service is monitored by the prosecution
service (with assistance from the probation service). This is in contrast
to
the role of the probation service in New Zealand. The second divergence is that
in Australia, where community service is regarded
as a severe sanction, there is
an increasing move to incorporate educational, counselling, and personal
development programmes into
community service conditions.
Two States in
Australia, Queensland and South Australia, have a stipulation on community
service that supervising officials are to
avoid providing directions to
offenders that would result in conflict with their employment, educational
opportunities, family commitments,
or religious beliefs. In New Zealand
community service must be appropriate to the offender with regard to his or her
character and
personal
history.
Combination
orders
Two Australian jurisdictions, Victoria and Western Australia,
and England and Wales currently have the option of a combination order
in their
sentencing regimes. Combination orders (combined probation and community
service orders) were introduced into England and
Wales in 1992. Offenders aged
16 or over are eligible for this sentence, which requires the person to be under
the supervision of
a probation officer for a specified period between 12 months
and 3 years. The key purpose of community service, the performance
of unpaid
work for a specified number of hours (between 40 and 100) remains. Before the
court is able to impose this sentence, the
judge must be of the opinion that the
order is:
The combination order is only
available for imprisonable offences and cannot be combined with other sentences
of probation, community
service or imprisonment. However, a combination order
can be imposed concurrently with either a curfew or compensation order, or
disqualification. It is generally imposed on more serious offences than either
probation or a community service
order.[239]
The
community-based order was introduced in Victoria in 1985 and became available in
Western Australia in 1995. The community-based
order was designed to replace
three non-custodial sanctions: supervised probation, community service orders
and attendance centre
orders. The rationale underlying the introduction of
community-based orders was to increase judicial flexibility when
sentencing.[240] This is because
the orders are considered suitable for a broad spectrum of offenders and
offences (including those who demonstrate
a high risk of re-offending). There
are two limitations to this ‘broad spectrum’. Firstly, the orders
are not available
for offenders who have committed crimes of violence or who may
present a continuing threat to the community in terms of future serious
offending. Secondly, the community-based order is considered unsuitable for
offenders who present little or no risk to the community
and whose criminal
behaviour is sufficiently sanctioned by a fine or a non-supervised order.
[241]
The Victorian courts
require the offender’s consent to the imposition of a community-based
order, whereas in Western Australia,
the offender must only consent to any
treatment conditions imposed.
[242] In Victoria the legislative limit
on the duration of community-based orders is that the order cannot exceed 24
months. The total
number of hours that may be worked in any seven day period
must not exceed 20, unless the offender gives written consent in which
case he
or she may be able to work up to 40 hours in 7 days. In Western Australia, the
duration of a community-based order cannot
be less than 6 months. A community
service requirement (or condition) of an order cannot exceed 120 hours but must
be more than
40 hours. Where more than one community-based order is made, the
total number of outstanding hours to be performed must not exceed
240. The
minimum number of hours to be worked in any one week is 12.
[243]
A key difference between
Victoria/Western Australia, and England and Wales in the introduction of
combination/community-based orders
is that in Victoria/Western Australia the
orders replaced probation and community service. However, in England and
Wales, the combination order expanded the sentencing options available.
Periodic
detention
Periodic detention is available in two Australian
jurisdictions, New South
Wales[244] and Australian Capital
Territory. There are two key differences in periodic detention between the
Australian jurisdictions and New
Zealand. Firstly, in order to impose periodic
detention, the Australian judiciary must first decide to impose imprisonment.
Once
this occurs, the judiciary can progress to determining that the offender
can serve their sentence of imprisonment by way of periodic
detention.
Cancellation of the periodic detention order, therefore, results in
imprisonment.[245]
The
second key difference is that periodic detention is primarily a residential
sentence in both Australian jurisdictions (in New
Zealand periodic detention is
a non-residential sentence). Detainees are required to report to a periodic
detention centre for a
48-hour period, usually over a
weekend.[246] While resident at
the centre, the detainee may be required to perform work activity suitable to
their physical capacity or attend
any programme considered conducive to the
detainee’s welfare or
training.[247]
However, in
New South Wales a detainee can progress from the residential component (Stage I)
of the periodic detention sentence to
a non-residential component (Stage
II). [248] The progression occurs
once the detainee has completed either three months or one-third of their
sentence and after the lodgement
of an application with a Community
Committee.[249] This committee
assesses the detainee’s attitude to work, offences, and eligibility. If
accepted the detainee is required
to report directly to a nominated work site on
each of the 2 days of their weekly detention and is no longer required to stay
overnight
in a periodic detention centre. If the detainee subsequently fails to
attend the nominated work site without prior approval or if
they receive an
adverse report from the work site supervisor they can be returned to Stage I of
the sentence. The objective of Stage
II is to provide detainees with an
incentive to comply with their order, particularly when the sentence is at the
upper end of the
scale.[250]
7. Options for Change
As
set out in section 5, there are a number of reasons why community-based
sentences may not realise their full potential in terms
of being used as genuine
alternatives to imprisonment and enabling significant cost-savings to be made to
the criminal justice system.
Community-based sentences can reduce costs and
divert offenders from imprisonment, but these results are not easy to obtain.
There
are also issues that have been raised in previous reviews of these
sentences, regarding the overuse or under-utilisation of particular
sentences,
some of which relate to how the sentences are managed/administered and others to
a lack of clarity and unanimity/consensus
among legislators, the judiciary, and
the probation service about the principal purpose or rationale of the various
sentences.
It would make sense for a sentencing system to be based on
rationales or principles that are reflected in community-based sentences
that
can be distinguished from each other so that there is a logic to using one
rather than another and for using a particular one
rather than imprisonment.
According to the principle of
restraint,[251] sentencers should
try and ensure that the least intrusive and least severe sanction consistent
with public safety, the seriousness
of the offence, and the aims of the
sentencing system is imposed in each case. The latter will also usually be
consistent with using
a less costly sanction ahead of a more costly one. It
also makes sense (if rehabilitation is to be a sentencing rationale for
particular
offending and offender circumstances) to use in appropriate cases the
sentence likely to be most effective at rehabilitating the
offender. Previous
studies have shown that there could have been greater use of community-based
sentences at the expense of
imprisonment.[252]
This
section sets out issues in respect of the imposition of community-based
sentences and possible ways to address them that could
lead to improved
management of the corrections system. The arguments for and against each
response are discussed, although no one
or more approaches are being recommended
here. To proceed with any one of them would first require greater analysis as
they all
involve considerable amendment to current sentences and the way they
are used.
Reduce net-widening
Community-based sentences seem to be highly vulnerable to
net-widening, as discussed in section 5. There are a variety of measures
which
could be used to minimise this tendency.
Sentencing
Guidance
One means commonly put forward to reduce net-widening is
the use of sentencing guidelines to indicate when community-based sentences
are
to be used instead of, on the one hand, a fine or discharge or deferment and, on
the other hand, imprisonment.[253]
There could also be guidance regarding the use of one community-based sentence
rather than another. The debate about sentencing
guidance is essentially over
obtaining a balance that ensures that sentences are imposed according to the
intentions of the legislature
without unduly circumscribing judicial discretion
which enables judges to provide justice in a wide range of individual
circumstances.
One consideration that complicates this balancing act is that
parliaments often do not specify to a high degree how a particular
sentence
shall be used because the use of generalities and the possibility of achieving a
variety of goals assists legislation pass
through its various stages.
At
present New Zealand legislation provides little sentencing guidance other than,
in fairly general terms, when to impose and not
impose imprisonment. There is
little direction about which community-based sentence should be used in which
circumstances, and no
directions as to the type of offending that each
community-based sentence could be used for (although indications of this have
been
provided by case law). Possible elaborations in legislation could include:
If it is decided that community-based sentences should
be limited to replacing sentences of imprisonment, there could be a requirement
that in the sentencing process the judge must indicate that the case is one that
merits a custodial sentence, but that there are
some circumstances which make a
community sentence appropriate. The judge would also indicate the term of
imprisonment that the
community-based sentence is substituting for. It should
be noted that there are, in the New Zealand context, these sorts of legislative
requirements in respect of the imposition of suspended sentences of imprisonment
and yet studies show that only a minority of suspended
sentences have been
replacing prison sentences, with most being used in place of or in addition to
community-based
sentences.[254]
One of the
difficulties encountered overseas with developing guidelines for the use of
community sanctions is that there is a perception
that community sentencing is
too complicated and too individualised to be subjected to general rules. Many
judges believe that guidelines
are in principle incompatible with mildly to
moderately serious crimes for which community-based sentences are most
appropriate.
While it has proved fairly easy to proportion prison time to crime
severity for most serious crimes, more considerations –
appropriate
treatment conditions, the judge’s reasons for imposing a particular
sentence, determining the balance and the effect
of different work,
restriction-on-liberty, treatment and monetary conditions in combination –
are often seen as relevant for
less serious offending and are not easy to
encapsulate in guidelines.[255]
Sentencing guidelines do not remove the need for the sentencing judge to have
adequate information about the offender and his or
her financial and personal
circumstances in order to decide on the applicability to each convicted offender
of a fine, or a particular
community-based sentence, and they will not stop
community-based sentences being used as an alternative to fines for those
offenders
unable to pay a fine.
Community-based sentences in
their own right
One reason suggested why community-based sentences may not be used as alternatives to imprisonment is the possibility that judges will tend to see imprisonment and alternatives to imprisonment as serving completely different functions. The factors taken into account in sentencing an offender to incarceration are different from those taken into account in sentencing someone to a community sentence. For example, community sanctions may be seen as never being appropriate for offenders who commit serious violent offences or those who have a very long and serious prior criminal record. A related difficulty is the resistance of those in the justice system to using them for offenders at the higher end of the risk spectrum because of concern over the likely criticism that would follow if they commit a serious crime while participating in the sentence.[256]
One
possibility for reducing this confusion is establishing community-based
sentences as sentences in their own right, like fines
and imprisonment, instead
of having the general provision that a community-based sentence can be used
where an offence is punishable
by imprisonment. In practice this would involve
listing them as specific penalties for particular offences so that, for example,
an offence would have listed as a penalty a sentence of periodic detention
either as the sole sentence option, or as one of two or
more sentencing options
which could include a fine and imprisonment and other community-based sentences.
In other words the penalty
for one offence could be imprisonment for a term not
exceeding 5 years or periodic detention; the sentence for another offence could
be imprisonment for a term not exceeding 2 years or periodic detention or
supervision. The duration of the community-based sentence
may or may not be
specified. A variation would be that the community-based sentence option would
(only) be available for particular
offences when this was the first time the
offender had committed the offence.
Restructure the range of
community-based sentences
This approach would involve removing or changing those community-based sentencing options that are most often imposed instead of fines. It would mean developing new community-based sentences or modifying existing ones so that they are more explicitly designed as alternatives to imprisonment, that is, able to deal with more serious offenders. They would be more punitive and have a high degree of control and monitoring. This would not necessarily have to be at the expense of rehabilitation and reintegration, although a tension might exist between these characteristics. There would probably still need to be one community-based sentence for judges to use in cases where the offender is unable to pay a fine.
Such a development would be to follow the example of the US in its development of intermediate sanctions that involve more stringent requirements than standard probation conditions. These sanctions include a variety of intensive supervision probation programmes which incorporate elements such as electronic surveillance, daily reporting, drug testing, and curfews. (Many also include mandatory community service.) It should be noted, however, that any benefits of such an approach will not be in terms of reducing reoffending unless the sentence also incorporates programmes designed to address criminogenic needs.
A possible restructure is to combine the two sentences of community programme and supervision. Community programme has tended to be imposed on offenders with a higher risk of reoffending (a frequent rate of previous offending) and whose offences are at the higher end of the scale in terms of seriousness, but is very little used. There are currently less than 300 offenders serving community programme out of a total community-based sentence muster of nearly 22,000. Offenders on community programme comprise only just over 1% of both the male and female community-based sentence musters. Combining it with supervision would be with the aim of increasing the number of serious offenders receiving supervision/community programme.
Both sentences provide for the treatment of addictions or other behavioural problems that an offender might have. Community programme was intended to be a community-orientated rehabilitative sanction in which the offender’s consent is required to the specific terms of a programme drawn up by a probation officer with the agreement of the offender and the person or agency responsible for the programme. The sentence is broadly defined so there is considerable flexibility in developing and specifying relevant programmes for offenders. It is generally used to place offenders in a community environment where they will be subject to influences and examples expected to have a beneficial and supportive effect. It is a less structured and more personalised sentence than supervision with day-to-day supervision provided by community persons. The difficulty of finding individuals or agencies in the community able to provide a suitable programme and ensure the offender maintains a suitable standard of behaviour appears to be one reason behind its limited use.
This option envisages having the elements of the community programme sentence as possible conditions of the supervision sentence with the probation service having a clear responsibility to oversee the sentence. If community programme was incorporated into the sentence of supervision in this way, one of the key elements peculiar to community programme, the community sponsors having responsibility for both the care and control of the offender, would cease. A difficulty with repealing the discrete sentence of community programme is that it is a unique sentence in terms of targeting Mäori offenders and setting up a process for placing them in a culturally appropriate setting.
Community service has been viewed as a “soft
option” not suitable for serious offenders. There is evidence it is being
used as an alternative to fines. One way to change this might be to combine
periodic detention and community service, with the probation
service being in
charge of the sentence. There is already a large overlap in the legislation of
the type of service or work offenders
may be required to perform and the view
has been expressed that the two sentences essentially fulfil the same purpose
and have the
same effect. Offenders could be allocated work by the probation
service, on a periodic detention basis alongside other offenders
in work
parties, or according to more flexible hours and alongside individuals in the
community, but in both cases they would be
closely supervised. The type of work
could be specified at sentence.
Another option is to combine community
programme and community service. Both sentences involve the community in a
supervisory role
although community programme involves more constant supervision
by the community organisation. This option would involve placing
the probation
officer in a legal supervisory relationship with the offender on the sentence,
as is the case with community service.
It would generally involve some
community work.
Improve the matching
of sentences with offenders
A case can be made for trying to improve
the effectiveness of community-based sentences so that there is reduced
reoffending.
Combine community-based sentences into
one
There is a view that one approach to getting offenders on to
the programmes that will most assist with their rehabilitation, while
remaining
committed to the view that punishment should reflect the seriousness of the
offending, is to combine the community-based
sentences into one sentence. This
would involve having one community sentence with a menu of conditions (that
includes the elements
of community service, periodic detention, supervision,
community programme) from which judges can select (and the community probation
service can recommend). This was the proposal in the 1995 UK Green Paper
Strengthening Punishment in the Community which was not put into effect.
It was also discussed in the 1992 Department of Justice review of periodic
detention. The argument
for this option is essentially that it would provide
the courts with greater flexibility in tailoring a sentence to the particular
circumstances of the offender and the offence.
An argument against this
proposal is that it could lead to an increase in imprisonment because courts
would only have the one alternative
to imprisonment other than a fine and would
only try it once or twice before imposing imprisonment on repeat offenders.
This would
be in comparison with trying the full range of community sanctions
before imprisoning a repeat offender. However, the flexibility
this change
seeks to provide could also be obtained by removing the limits on the
courts’ powers to combine sentences (see
next
option).
Abolish restrictions on combining community-based
sentences
A version of the above approach is to abolish restrictions on combining community-based sentences. Under s13 of the Criminal Justice Act 1985 the only community-based sentences that can be imposed concurrently are periodic detention and supervision. The option of permitting other combinations of community-based sentences would give sentencers a greater choice and flexibility in constructing a sentence to meet the individual circumstances of each case. There are potential net widening implications with this approach and associated cost increases if judges regularly imposed two or more community-based sentences where they previously would have been able to impose only one.
The reason why combinations in general were not
permitted in the Act was that it was considered that different sentences were
designed
for different types of offender and had different objectives. For
example, an offender who is sufficiently motivated to perform
a sentence of
community service will not be in need of any form of supervision beyond the
limited level which is currently an ancillary
part of the sentence. In
contrast, an offender sentenced to supervision would be an offender deemed to
require a more intensive
level of control and monitoring. Where the court
considers that an offender should be under fairly close supervision in addition
to carrying out work in the community, periodic detention can be imposed,
involving as it does supervision during completion of the
work requirements, or
the combination of periodic detention and supervision where the supervision is
required on a more continuous
basis.
There is the view that a
supervision-community service combination would be suitable for offenders who
are candidates for community
service but who also have serious social/medical
problems, such as alcoholism, drug addiction, domestic violence, psychiatric
problems,
anger management problems, or other dysfunctional behaviours. These
could be addressed by special conditions imposed under a sentence
of supervision
(for instance a course of education or training). Their offending would be such
that periodic detention would be
overly punitive, as well as being a more costly
option that carries the risk of “contamination” of minor offenders
by
the more experienced offenders placed on periodic detention. There could
also be offenders who would respond to supervision but
whose offence warrants
the imposition of an additional punishment element short of periodic
detention.
The combination of supervision and community service (and that
of supervision and community programme) could also be a useful one
for offenders
otherwise suitable for community service/programme except for the need for some
additional monitoring to ensure they
complete the sentence. Combinations would
generally increase the degrees of sentencing severity, e.g. a combination of
supervision
and community service would lie between the individual sentences of
community service or supervision and periodic detention in terms
of
punitiveness.
Any broadening of the sentence combinations allowed could
be accompanied by sentencing guidelines in legislation to target the imposition
of particular combinations in respect of certain circumstances. This would
hopefully minimise the risk of net-widening. In the
light of previous
experience, however, it is not unreasonable to assume that, even with statutory
guidelines stipulating that a combination
sentence should only be imposed where
one sentence would not suffice or where the court would otherwise impose a more
severe sanction,
there will be occasions when a combination sentence will be
used in cases that fall outside the intended range.
Abolish
periodic detention
This sentence is a sentence with standard
features that do not vary according to the needs of offenders and it currently,
with few
exceptions, has no training or education components to address the
criminogenic needs of offenders. It has long been viewed as a
major success
story for the criminal justice system because it combines elements of
punitiveness (involving genuine hardship and
inconvenience to the offender) and
reparation to the community and permits the offender to remain in employment,
which is thought
to assist with avoiding future offending. However, it is now
an old sentence, remaining largely unchanged in most of its essential
features
since 1962 (other than the abolition of any residential component). The public
shaming aspect of it does not sit well in
a modern penal system and may be
counter-productive as far as the goal of preventing reoffending is concerned.
It is replicated
in few other jurisdictions. On the other hand some of the work
undertaken by detainees is very constructive and has made important
contributions to upgrading community facilities and the sentence is now finally
being developed to include training and education
elements.
An additional community-based sentence
There is an argument that there is a need to
widen the range of community-based sentences available to the courts to better
ensure
that imprisonment is not used
unnecessarily.[257] However, it
needs to be asked what would be the unique components of any new sentence that
sufficiently distinguish it from other
sentences, making it more appropriate for
certain types of offenders who would have otherwise have received a less
suitable sentence.
There is also the risk of further net-widening.
Allow the probation service to determine the conditions of community-based sentences
This is an option that would be most
appropriate in the event of there being a single community sentence. One
approach would be for
the courts to impose a sentence and a term which requires
the offender to comply with conditions set by the community probation service.
It would need to be specified that these conditions would have to be designed to
reduce reoffending. Another approach is for the
court to impose a fairly
broadly defined sentence after the particular terms of it are arranged by the
probation service. There
would be a need to obtain the consent of the offender
in respect of treatment programmes, and provision for variation or cancellation
of conditions following an application by either the offender or a probation
officer.
Reducing the direct cost of
community-based sentences
There are two obvious options which could
achieve this. One is to abolish periodic detention (which has already been
discussed above
in another context). It is the most costly of the
community-based sentences and the one most frequently used (involving over 50%
of offenders commencing a community-based sentence in 1997/98 and 36% of the
total community-based sentence muster at 30 June 1998).
Its abolition would
generate savings to the extent that offenders were instead sentenced to one of
the remaining community-based
sentences (subject to different costs relating to
breaches and re-sentencing) but there would be the risk that a significant
number
of offenders who would previously have received periodic detention would
be sentenced to imprisonment.
The other option is to prohibit the court
from combining any one community-based sentence with another. This would likely
mean that
many of the types of cases which currently receive combined sentences
of periodic detention and supervision would receive periodic
detention only and
the cost of the additional sentence of supervision would be saved. As discussed
above, this would be sacrificing
some ability to address the treatment needs of
offenders sentenced to periodic
detention.
Conclusion
At present we are not able to predict the extent to which each of the above changes would impact on the direct costs of sentence administration, on net-widening, and on the treatment needs of offenders. One reason for this difficulty relates to the division of powers in respect of the application of community sanctions. Authority for the use of them comes from legislation, the judiciary orders the sanction in particular cases, and the corrections system must implement and enforce the sanction. The problems with this jurisdictional split are that inadequate legislative guidance for the judiciary may mean that judges do not always impose sentences as parliament intended, or adequate resources for the community corrections system may not be put in place to enable the sentences to be recommended when appropriate, or properly administered once they are imposed by the judiciary (who are often not made aware of these resource difficulties).
An over-riding consideration is that there are no clear statements or understanding as to which sentencing purposes (just deserts, deterrence, incapacitation, rehabilitation, restitution) should apply in which circumstances and which sentences are consistent with those purposes. In practice, the range of possible circumstances will always make it difficult to be precise in this area. There is also no official policy as to how the various community-based sanctions rank in severity. A further consideration is that the Department of Corrections is currently (through Integrated Offender Management) making changes within the current sentencing framework which will affect how the current community-based sentences are managed, and their programme content, to better match them on an individual basis with the re-offending risk and treatment needs of offenders.
8. Conclusions
The starting
point for this review was the observation in The Use of Imprisonment in New
Zealand (1998) that there had been a significant increase in the use of
community-based sanctions since 1986, although this had not been
accompanied by
any overall decrease in the numbers going to prison or in the proportion of
offenders being sent to prison. Part
of the increase in the community-based
sentence musters appeared to be due to their being applied to those who would
otherwise have
received a fine, or have been diverted. This had the effect of
escalating some offenders up the sentencing tariff and widening the
net of the
criminal justice system to bring more people into the correctional system and
ultimately into prison.[258] This
review looks at these statements in more depth through a detailed examination of
what has been happening with community-based
sentences in New Zealand.
In
New Zealand there are currently four community-based sentences – periodic
detention, supervision, community service, and
community programme. The history
of these measures (and the same has been the case overseas) shows a great deal
of ambiguity and
variety of expectations underlying their introduction. To some
they were simply a more humane, constructive, and cheaper alternative
to short
sentences of imprisonment; to others they were introducing into the penal system
a new dimension with an emphasis on reparation
to the community; others stressed
the value of bringing or keeping offenders in close touch with those members of
the community most
able to provide help and support and change the outlook of
the offender. There was the expectation that they would reduce the frequency
and seriousness of the offender’s law breaking through supervision,
advising, treating, providing care, or simply by giving
the offender a second
chance. Probation officers trained in the principles and practice of social
work were to play a large role
in most of these sentences. Their role was seen
as a combination of welfare management and law enforcement.
On the
international scene the common types of community sentence are probation,
supervision, community service, and special forms
of education, training, or
treatment. In some jurisdictions they are imposed as a condition of suspending
a prison sentence, which
may or may not be specified, and in others as
alternatives to imprisonment. There is considerable variation in the degree of
supervision
and control of offenders involved. It ranges from intensive
supervision to reduce opportunities for recidivism, to ensure the conditions
of
the sentence are fulfilled and to assist with reintegration into society,
through to minimum contacts between the supervisor and
the offender, with little
attempt to assist the offender in reintegration into the community. Supervision
is sometimes exercised
by professionals, sometimes by individual or community
group volunteers, or a combination of these options.
In many
jurisdictions (for example Australia, Canada, United States, various European
countries), there is a clear development towards
having a greater range of
non-custodial sanctions, (although some countries are at a relatively early
stage of this process). This
can be seen for example, in the adoption of a
greater number of different non-custodial sanctions, in the increased
possibilities
for the adding of conditions to existing sanctions, and in the
increased possibilities for combining different non-custodial sanctions.
In
some cases these reforms also involve developing more punitive non-custodial
sanctions.
In New Zealand the Criminal Justice Act 1985 gave a new
emphasis to community-based sentences as alternatives to imprisonment. Since
1985 there has been a very substantial increase in the use of these sentences,
particularly periodic detention and community service,
although there has been
very low use of the community programme sentence (no more than 1.5% of all
convictions for imprisonable offences
in any one year). At the same time there
has been a decrease in the relative use of imprisonment, particularly for
breaches of periodic
detention, for offences of low to moderate seriousness, for
offenders with previous convictions, and for youth offenders, with these
groups
now more likely to receive the more serious community-based sentences of
periodic detention and supervision than in the 1980s.
But there has also been a
decrease in the use of monetary penalties for imprisonable offences (an absolute
decrease of 20% over
the period 1983 to 1995). Some of this trend can be
accounted for by changes in the type of offenders and offences dealt with by
the
courts (involving a higher average seriousness of offending and a higher
percentage of persistent offenders) but most can be
attributed to the imposition
of community-based sentences (especially community service), where previously a
monetary penalty would
have been
imposed.[259]
In contrast to the assumed benefits of community-based sanctions, there are a number of concerns about them and obstacles to their successful implementation. Perhaps the most frequently cited concern about the development of community sanctions is the possibility of net-widening.[260] As discussed in section 5, net-widening refers to a situation in which individuals previously not coming under the control of the correctional system now do so simply because, with the existence and expansion of community sanctions, there is a control apparatus available to handle them. It also refers to a sanction being introduced to diminish the use of one that is more severe with the outcome that it instead gets used in lieu of a less severe one. In respect of community-based sentences it means that they get used more for offenders who would not have received imprisonment than for offenders who would otherwise have served a prison term. The Canadian Sentencing Commission noted its concern that intermediate sanctions were often used as additions rather than as alternatives to existing measures.[261]
When it comes to determining whether community-based sentences are being used in New Zealand as alternatives to prison the evidence is mixed. The prison population continues to rise, although it is likely to have risen more in the absence of community sentences. As indicated above, some sentences have been used for offenders who would otherwise have been fined. There is clearly a real net-widening risk that if more community sentences become available, they will increasingly be used not for those who would otherwise go to prison, but for those who might otherwise have been dealt with by means of an alternative penalty including a fine.
The reasons why claims that community-based sentences result in significant cost-savings should be very qualified were discussed in section 5. The argument that community sanctions are less costly than imprisonment is complicated because costs can be variously defined. There are the immediate financial costs of administering/enforcing the sentence, and the indirect financial costs resulting from an increase or decrease in crime. What is generally implied is that the wider use of community sentences would allow the state to administer the enforcement of sanctions more cheaply. However, this depends on the various changes in the rate with which the different sanctions are used. There is now a considerable record of the use of community-based sentences from which to draw the lesson that it is extremely difficult to achieve sustainable savings in the prison system through their introduction. This is mainly because, although community sentences may reduce the number of offenders entering prison, the impact on the prison population will be lessened by the fact that such sentences (when they are not net-widening) generally replace only the shorter sentences of imprisonment which are not the major driver of prison musters and so have little practical effect on the overall size of the prison population (although reducing numbers entering prison will decrease the workload of prison administration). Minor cuts in the number of offenders in prison at any one time will not reduce the number of prison units or the maintenance costs of prisons, and so make only marginal cost savings in existing prisons which have many relatively fixed costs. There is also the consideration that as community-based sentences replace monetary penalties, then there are additional administrative costs to the corrections system and a reduction in fines revenue.
A major difficulty with community sanctions is that of establishing criteria for the measurement of the success or otherwise of them. Success could be measured by cost-effectiveness, crime prevention effects (recidivism and deterrence), sentence completion rates, the extent to which they reduce the use of custodial sentences without dramatic increases in reoffending, changes in offenders’ attitudes or behaviour, or community and victim satisfaction (which could relate to reparation made to the community or victim). Once one or more of these criteria are selected, there may still be varying levels of acceptability among various sanctions. For example, what is considered an acceptable rate of sentence completion in one sanction may not be acceptable for a different sanction.
The difficulty with reconviction/recidivism rates is that the available evidence indicates they are related to differences in the gender, age, and criminal histories of those receiving the sentences, rather than the sentences themselves. In respect of recidivism rates, robust overseas evaluations of intensive supervision, community service, and other intermediate sanctions have found that for offenders sentenced to such sanctions that are well-managed these rates do not differ significantly from those of comparable offenders receiving other sentences.[262] In New Zealand, research findings also show that community-based sentences do not reduce recidivism rates once factors such as the criminal history, age, and ethnicity of those receiving the sentences are taken into account.
Despite these qualifications regarding how community-based sentences work in practice compared to the policy intentions of reducing the role of prisons and adopting a more humane and cost-effective approach to the containment of offenders, it would be going too far to conclude that all community-based sentences are primarily a negative development. For some types of offenders, some community-based sentences under certain conditions (which may be localised) may keep them from a prison sentence both initially and in the longer term. It is probably an over-generalisation to state that community-based sentences will only expand the system of penal control with no real benefit to the criminal justice system. It would be more accurate to say that we are not yet in a position to state with certainty the exact (quantifiable) relationship of community-based sentences to imprisonment statistics, or to offending for that matter. Different studies have cited contradictory evidence and interpretations (which make a range of assumptions about the variables measured) to reach widely divergent conclusions about this relationship.[263] The only safe (and limited) conclusion to be drawn is that the operation of community-based sentences is heavily dependent on decisions of the courts and the penal climate in which they operate.
This paper has looked briefly at
possible changes to the community-based sentence framework to better target
punishment severity to
crime seriousness, reduce net-widening, and save costs.
Sentencing guidelines could better influence judicial decisions in the use
of
community sentences. If community-based sentences are to be genuine
alternatives to imprisonment there could be a direction that
they are only to be
imposed in circumstances where the court would otherwise have sentenced the
offender to imprisonment. An alternative
is for guidelines to be in the form of
presumptions concerning non-custodial sentences based on sets of
offence/offending history
combinations. One set is presumed appropriate for
imprisonment, another for one type of community sanction, another for a
different
community sanction. Another approach is to have time-units of
punishment which can be served by way of a community sentence or imprisonment.
There is a potential problem that the many considerations that go into deciding
a community sentence for less serious offending
will not be easy to convert into
guidelines. Also, sentencing guidelines do not remove the need for the
sentencing judge to have
adequate information about the circumstances of the
offence and about the offender and his or her financial and personal
circumstances
to decide on the applicability to each convicted offender of a
fine, or a particular community-based sentence.
There is the possibility of establishing community-based sentences in their own right, by listing them as specific penalties, either on their own or with other penalties, for particular offences. Another response (which has happened overseas) is to develop types of community sentences that are designed to focus more on surveillance and control, providing for incapacitation in community settings. Overseas this has been part of a strategy for diverting offenders from prison without appearing “soft” on crime, which is how some traditional community-based sentences have been viewed. The possible consequence is that non-prison bound offenders who are low-risk and who neither require nor need this level of control are then placed on these sentences.[264] An appropriate mechanism needs to be put in place to ensure that the more restrictive sanctions are used to divert people from prison, rather than in place of less restrictive sentencing options.
In order to better match offenders with
community-based sentences the question arises whether community sentences should
be more integrated,
for example having one community sentence to incorporate all
the elements of the current orders. Another approach is to abolish
restrictions
on combining community-based sentences. Both concepts could involve increased
costs if judges impose many conditions
or two or more sentences where before the
sentences would have been more limited.
The possibility has been raised
in the literature of limiting judicial authority to the choice of imprisonment,
a fine, or a community
sentence, and leaving the probation service to decide on
aspects of the community sentence–home detention, intensive supervision,
training, treatment (with the offender’s consent), etc.–to be
applied as conditions.
Even if the role and purpose of community-based
sentences were clarified and this carried over into their imposition,
administration,
and enforcement, this alone could not be expected to solve the
problem of the rising prison population, or produce significant cost
savings to
the criminal justice system (particularly in the short-term). Whether
community-based sentences keep people out of prison,
or whether they contribute
to the prison population, or widen the net of surveillance and social control,
is not a matter that can
easily be resolved and explained. There is some
evidence that at particular times (which are likely to relate to the life
circumstances
of convicted offenders amongst other matters) they can end up
reducing the use of fines. This has certainly happened in the New
Zealand
context.
Finally, any proposals to change the community-based
sentencing framework need to reflect the fact that the rationale, role, and
nature
of community penalties are a part of a much larger and complex network of
relationships between policy (legislation), decision-making
processes (courts),
and other criminal justice activities (probation officer functions, police
enforcement) in the context of shared
or diverse (and changing over time)
“world views” of crime and punishment and about the desirability or
futility of imprisonment
and alternative methods of sanctioning
offenders.[265]
Appendix 1: International
Comparisons
England and
Wales
England and Wales have the following community sentences:
probation orders, community service orders, combination orders (which combine
probation and community service), curfew orders, and supervision orders and
attendance centre orders (for younger juvenile
offenders),[266] with all but
curfew orders supervised by the probation service. Under the Criminal Justice
Act 1991, as amended by the 1993 Act,
these sentences are subject to the
sentencing principles that the severity of the punishment should correspond to
the seriousness
of the offence to which it relates, taking account of previous
convictions or failure to respond to previous
sentences.[267] In most cases,
community orders are discrete penalties and are not combined with each other in
a single sentence, although an individual
offender may be subject to a number of
concurrent orders for different offences. The principal exception is the
combination order
(see below) which permits a limited amount of community
service to be combined with probation supervision. For offenders sentenced
in
the Youth Court, the range of community orders available depends on the age of
the offender. Probation orders and community service
orders are not available
for offenders under 16 years. However, a court may impose an attendance centre
order from 10 years or a
supervision order for offenders aged between 10 and 17.
Community service and combination orders are currently only available as
penalties for imprisonable
offences.[268]
The 1991
Criminal Justice Act states that community penalties can only be imposed where
the relevant offences, taking account of previous
offences or failure to respond
to previous sentences, are “serious enough” for such a sentence but
not “so serious”
that only custody is justified (ss1, 6 and 29). In
other words community sentences are to be used for offences of intermediate
seriousness
that lie between those where a fine or discharge would be
appropriate and those which require
custody.[269] Within that band
the court is required to select the “most suitable” community order,
in which the restrictions on liberty
“are commensurate with the
seriousness of the offence” (s6(2)).
Probation Order
Probation was officially introduced in England with the passing of the Probation of First Offenders Act in 1887. Courts were enabled to release first offenders to supervision by “probation” officers. This was followed by the Probation of Offenders Act 1907 (and the development of a fledgling probation service) and the Criminal Justice Act 1948 which also introduced prison after-care and attendance centres. The objective of probation supervision was the moral reformation of the offender and the prevention of crime.[270] This is now the probation order which is available for offenders aged 16 or over convicted of any offence other than one for which the penalty is fixed by law. (The juvenile equivalent is a supervision order which may place the offender under the supervision of a probation officer or a local authority social worker).
Until the Criminal Justice Act 1991 a probation order was made “instead of sentencing”. This meant that if an offender breached the conditions of the order or committed a further offence he or she would be brought back to court and could be sentenced for the original offence as well as the new one. The 1991 Act made it a sentence of the court. Further offences committed during the life of an order do not in themselves constitute a breach of the order. [271] A probation order is for a period between 6 months and 3 years. It is used mostly for indictable offences.[272] Under the Powers of Criminal Courts Act 1973 the court may make a probation order if it is:
of the opinion that the supervision of the offender by a
probation officer is desirable in the interests of:
(a) securing the
rehabilitation of the offender;
(b) protecting the public from harm from him or preventing the commission
by him of further offences. (s2 Powers of Criminal Courts
Act
1973)
Section 2 of the Act also requires the consent of the offender.
It is possible to combine a probation order with other community penalties
either in the form of a combination order (see below) or separately with, for
example, a curfew order. It cannot be combined with
a custodial
sentence.[273]
The standard
conditions of probation are that the offender keep in touch with the probation
officer responsible for his or her supervision
in accordance with such
instructions as he or she may from time to time be given by that officer and
notify him or her of any change
of
address.[274] In addition to
supervision most probation orders include requirements imposed by the court for
the purposes of securing the rehabilitation
of the offender or protecting the
public from harm or preventing further offending. There are also specific
additional requirements
listed in legislation that may be imposed. Specific
requirements may include requirements as to residence, specified activities,
attendance at a non-residential probation centre (for up to 60 days), medical
treatment, or treatment for drug or alcohol
dependency.[275] Probation orders
with such requirements are designed to target offenders with a high risk of
re-offending. A residence requirement
usually obliges the offender to stay in
an approved probation hostel for a period which may be equal to or less than the
period of
the probation order. Probation centres (initially termed day centres)
and specified activity requirements to the order were introduced
as possible
special requirements by the Criminal Justice Act 1982.
A probationer may
be brought back to court for:
In
cases of serious or repeated non-compliance with the terms of an order the order
may be revoked and the offender re-sentenced.
If the original offence was
imprisonable, then the court may impose a custodial sentence.
Community service order
The Criminal Justice Act 1972 introduced the
community service order as an all-round sentence that would involve reparation
to the
community, act as an alternative to imprisonment, provide punishment, and
rehabilitate offenders. Initially trialed in 6 probation
areas it was extended
to all areas in 1974. By 1983 it was being imposed on nearly as many offenders
as were probation orders although
numbers sentenced to community service
declined during the 1980s. Numbers rose in the 1990’s.
A community
service order may be imposed on an offender aged 16 or over provided the
offender consents, the offence is punishable
with imprisonment, and the court is
satisfied that the offender is a suitable person to perform work under an order.
The offender
is required to perform unpaid work for a specified number of hours
(between 40 and 240) at intervals within 12 months of the date
of the
order.[277]
A community
service order may not be combined with a prison sentence, even a suspended one,
or with a probation order except as part
of a combination order (see below). It
may be combined with a fine or a curfew
order.[278]
The types of
work provided vary, depending on local attitudes and opportunities. Examples
are helping the elderly or disabled with
gardening, decorating, home repairs,
shopping; activities with handicapped or deprived children or making toys or
equipment for them;
helping people in hospitals or homes for the elderly; nature
conservation projects; maintaining camp grounds or churchyards; helping
in youth
clubs. Most of the activities involve the offenders working with volunteers or
paid staff.[279]
While
subject to a community service order the offender is required to report to a
probation officer to arrange the work and the times
for the specified number of
hours.[280]
Combination orders
The combination order (combining a probation
order and a community service order) was introduced in the Criminal Justice Act
1991
(s11) and came into effect on 1 October 1992. It is an order for offenders
aged 16 or over, requiring the offender to be under the
supervision of a
probation officer for a specified period between 12 months and 3 years (as
compared with between 6 months and 3
years in the case of a probation order),
and to perform unpaid work for a specified number of hours between 40 and 100
(as compared
with between 40 and 240 hours in the case of a community service
order). The court must be of the opinion that the order is desirable
in the
interests of securing the rehabilitation of the offender, or of protecting the
public from harm, or preventing the commission
of further offences. It is only
available for imprisonable offences.
The combination order cannot be
further combined with probation or community service, or imprisonment. It can
be combined with a
curfew order, a fine, a compensation order, or
disqualification. It is generally given to more serious offenders than either
probation
or a community service order
alone.[281]
Curfew orders
Curfew orders were included in the Criminal
Justice Act 1991 (s12) and have yet to be introduced on a national basis. They
require
a person to remain for specified periods at a specified place. They
were trialed (in the form of electronic monitoring using transmitter
bracelets)
in 1995/96 and 1996/97 in 3 areas. (They had also been trialed, not very
successfully, in 1989/90 although as a way of
enforcing bail conditions rather
than as a sentence). The results were mixed, with there being a low take-up
rate by the courts,
although the technology proved reliable (in contrast to the
earlier bail study) and the completion rate of 82% in the second year
of trials
compared favourably with that for probation orders and community service.
Indications were that curfew orders were being
used at the higher end of
community sentences (community service orders and combination orders) and for
relatively experienced
offenders.[282]
Orders may
specify different places of curfew or different periods on different days but
may not last longer than 6 months from the
date of the order. They must not
involve curfew periods of less than 2 hours or more than 12 hours duration in
any one day. They
can be imposed on an offender 16 years or over who is
convicted of any offence (except where the sentence is fixed in law), although
the Crime (Sentences) Act 1997 made curfew orders up to 3 months available for
juveniles aged 10 to 15. Curfew orders are not run
by the probation service,
but by private contractors.
Curfew orders can be combined with a fine, a
compensation order, an order for disqualification or forfeiture, or another
community
sentence. They cannot be combined with either a sentence of
imprisonment or a conditional or absolute
discharge.[283]
Attendance centre orders
Attendance centre orders were introduced in the
1948 Criminal Justice Act. The orders are only available to those aged 20 or
under
and do not require the consent of the offender. The maximum number of
hours is 36 for those aged 16 to 20 years and 24 hours for
those aged under 16.
The minimum number of hours is 12 except where an offender is under 14 years and
the court is of the opinion
that 12 hours would be excessive. There were fewer
than 30 senior attendance centres in England and Wales in 1996 dealing with
around
1,000 offenders a year, so the order is still not available as an option
to all courts. Junior centres are far more common and most
attendance centre
orders are made in the youth court.
The order seeks to punish through
restriction on leisure time; to provide occupation and instruction to assist the
development of
self-discipline, skills, and interest; and develop social skills
through structured activity. Centres are run by the police on behalf
of the
Home Office and usually open for 3 hours (the maximum hours of attendance on any
day) every second Saturday afternoon, with
a regime of physical training, first
aid, woodwork, car maintenance, etc. Orders are not to be made if the offender
has to travel
for more than 90 minutes to reach a
centre.[284]
Supervision orders
When a court passes a suspended sentence of
more than 6 months, it may make a suspended sentence supervision order (SSSO)
placing
the offender under the supervision of a supervising officer (who must be
a probation officer) for a specified period not exceeding
the operational period
of the suspended sentence. This is available in s26 of the Powers of Criminal
Courts Act 1973.
The requirements are keeping in touch with the
supervising officer in accordance with any instructions he or she may give from
time
to time, and notifying him or her of any change of address. No other
requirement may be added either by the court or the supervising
officer. An
SSSO ceases to have effect if the suspended sentence is activated or if, on the
application of the offender or the supervising
officer, the SSSO is
discharged.
An SSSO differs from a probation order in 3 important
respects:
SSSOs were introduced in order that
offenders who were dealt with by means of suspended sentences should not be
deprived of the help
or guidance which a probation officer might be able to
give. There has been no systematic comparison of the success rate –
by
any criteria – of offenders under suspended sentences with and without the
order.[285]
There are also
monetary payment supervision orders (MPSO) which can be made in cases of
non-payment or late payment of fines. The
supervising officer does not collect
the instalments but is to have an advisory role, with a view to persuading the
offender to pay,
and may be asked to report to the court on the offender’s
conduct and means. The order ceases as soon as payment is completed
or the
offender is dealt with for default. Most of the offenders receiving a MPSO are
young offenders because of the statutory prohibition
on imprisoning them for
fine default unless a MPSO has been
tried.[286]
For offenders
aged between 10 and 17 the court may impose a supervision order for a period of
up to 3 years. The order may incorporate
a variety of specified conditions
(such as psychiatric treatment, educational requirements, night restriction
requirements, specified
activities, and resident requirements) and is supervised
by social services departments or the probation
service.[287]
Sentencing practices
The introduction of the combination order in
1992 has contributed both to an increase in community sentences and to changes
in the
use of community service and probation. In the magistrates’ courts
the use of community sentences (probation order, supervision
order, community
service orders, attendance centre orders, combination orders, and curfew orders)
rose from 21% of indictable offences
in 1992 to 29% in 1996. In 1997 some
118,000 people started a community sentence, compared to about 90,000 in
1992.[288] This compares to
81,600 offenders (excluding fine defaulters) sentenced to imprisonment in
1997.[289]
The number
starting a probation order in 1997 was 50,700. Some 33% of those orders had an
additional requirement.[290] In
1981, almost 9 out of 10 probation orders had no additional requirements; by
1994 this was the case for only three-quarters of
probation orders. In the mid
1980s probation centres were the most popular additional requirement, but they
have now been overtaken
by specified activities. Of the offenders commencing
probation in 1994, 5.7% had a probation centre requirement on their order and
13.5% had a specified activity
requirement.[291] The number of
probation orders imposed for summary offences has increased from 10% of
sentences in 1985 to 30% in 1995 (reflecting
the definition of summary offences
changing to include more offences of assault and criminal damage and the greater
use of police
cautioning for minor offenders). In 1993 45% of offenders
commencing a probation order had been convicted of indictable offences
of
dishonesty, including theft, handling stolen goods, and burglaries; 9% had been
convicted of violent offences (mostly minor but
including occasionally
manslaughter or threat to kill). Two-thirds of probationers have records of at
least one previous conviction.
[292] In 1993 49% of probation orders
(excluding those which are part of a combination order) were for one year and
38% were for 2 years.[293]
In 1997 47,400 offenders started a community service order. There has
been a very strong growth in the numbers of combination orders
from 1,390 in
1992 to 18,700 offenders in 1997 (with 24% of those orders having an additional
requirement). When they were first
introduced, the courts used almost half of
them (49% in 1993) for offenders with a previous custodial sentence. However,
in 1996
and 1997 there was little difference between probation and combination
orders in terms of the offender’s previous criminal
history. In 1997 some
37% of offenders receiving either order had a previous custodial sentence and
19% had no previous convictions.
This compares to 22% of people receiving
community service order having had a previous custodial sentence and 34% having
no previous
conviction.[294]
The number
of people starting a Money Payment Supervision Order rose 94% in 1996 to 6,400,
having declined each year between 1989
and 1995. This is likely to have been
the result of a High Court judgment in January 1996, which ruled that the courts
must consider
all other methods of enforcing payment of fines before sentencing
defaulters to custody. The numbers declined again in 1997 to 4,800.
1993
figures show that the majority of probation orders ran their full course (80% of
those for 1 year or less, 59% of those for 2
years and 56% of those for 3 years)
a further 8, 17 and 18% respectively were terminated for good progress. The
majority of those
given a community service order (48,179) finished after the
specified number of hours were completed.
A survey of magistrates’
courts in 1995 showed that those receiving a combination order were more likely
to be sentenced for
more than one offence and to have previous criminal
convictions than those given a community service order. They were more likely
to have been charged with a violent offence or a serious motoring offence such
as driving while disqualified, whereas a greater proportion
of those who
received probation and community service orders had committed property
offences.[295]
In 1995 only
0.6 % of those aged 18 to 20 years who were sentenced for all offences in the
magistrates’ courts received an attendance
centre
order.
Table
Numbers (thousands) of offenders given
community sentences at all courts by type of
order[296]
Sentence
|
1992
|
1993
|
1994
|
1995
|
1996
|
1997*
|
Probation order
|
43.9
|
43.8
|
50.5
|
49.4
|
50.9
|
54.1
|
Supervision order
|
5.9
|
7.3
|
9.2
|
10.1
|
10.9
|
11.2
|
Community
service order |
44.1
|
48.0
|
49.5
|
48.3
|
45.9
|
47.1
|
Attendance centre order
|
7.2
|
6.8
|
7.3
|
7.5
|
7.5
|
7.6
|
Combination
order** |
1.3
|
8.9
|
12.4
|
14.6
|
17.3
|
19.5
|
Curfew order
|
|
|
|
0.0
|
0.2
|
0.4
|
All community
sentences |
102.4
|
114.8
|
128.9
|
129.9
|
132.6
|
140.0
|
* Provisional.
** Available since 1 October 1992.
Reconviction rate
For those given probation orders, community
service, or combination orders in 1993 the respective 2 year reconviction rates
in respect
of a standard list offence (these include all indictable and some of
the more serious summary offences, but exclude most summary
motoring offences
and other less serious summary offences such as drunkenness and prostitution)
from commencement of the sentence
were 60%, 52% and 61% (the reconviction rate
for all community penalties was 57%). There was some variation for those given
probation
orders according to the type of requirements. Much of the difference
between the reconviction rates can be explained by reference
to the
characteristics of those sentenced to these orders and similarly with the
different rates for different types of probation
order. The comparable rate for
those discharged from prison was 53%.
The proportion of offenders who
were sentenced to custody within 2 years of commencing each type of community
penalty in 1993 ranged
from 20% for community service to 39% for the probation
centre group.[297]
Future
In 1995 the Government produced a Green Paper,
Strengthening Punishment in the Community. It suggested a single
integrated community sentence – designated “the community
sentence”–to replace and
incorporate all the current orders
available in the adult courts: probation orders, community service orders,
combination orders,
curfew orders, and possibly supervision orders and
attendance centre orders. When passing this sentence the court would have
discretion
to determine the content of the community sentence in terms of
restrictions and compulsions considered to be required for individual
offenders.
The court would have available to it, singly or in combination, all the
ingredients of existing community orders. The
green paper argued that this
change would provide the courts with greater flexibility in the range of or mix
of community orders
they could make, though this was disputed by some
commentators (see comments by Penal Affairs Consortium). One criticism is that
this was likely to reduce public understanding of sentences because they could
have little idea what a community sentence involved
in individual cases.
Another, that it would increase the use of prison because there is only one
community sentence to try before
imprisonment. The paper also proposed that the
requirement that offenders provide consent to community sentences be abolished.
The idea was subsequently dropped (Home Office, Protecting the Public,
1996).
The Crime and Disorder Act 1998, which principally addresses youth
offending, created a number of new community orders, to be piloted
prior to
national implementation in 2000/2001. These included:
Republic of
Ireland
At present the main sanctions available to the Irish courts
are imprisonment, probation, community service, and fines. A custodial
sentence
can be deferred, or suspended in part or in full.
Under the Criminal
Justice (Community Service) Act 1983 a community service order can be made where
a person has been convicted of
an offence for which, in the court’s
opinion, the appropriate sentence would otherwise be a term of imprisonment.
There is
a maximum limit of 240 hours and a minimum of 40 hours. In 1992 the
average number of hours stipulated in such orders was 150 hours.
They generally
require unpaid work involving the maintenance and improvement of property, with
an average of 8 to 10 hours served
per week. The role of the probation and
welfare service officers is to report to the court on whether arrangements can
be made for
the offender to perform work, to report on the suitability of the
offender with regard to community service and to supervise the
offender’s
work. Failure to comply with the order can result in a fine or the replacement
of the order with the prison term
that otherwise would have been appropriate.
There were 1,745 community service orders made in 1992. The types of offences
with
regard to which they were most regularly made were assault, burglary and
larceny, car theft, driving offences and malicious damage.
36% of orders were
made with regard to crimes involving violence.
Apart from the community
service order, the Probation Service provides three other alternatives to
prison: probation, adjourned supervision,
and the intensive probation scheme.
Probation orders are made by the courts when offenders are discharged
conditionally on entering
into a recognisance to keep the peace and be of good
behaviour while under the supervision of a Probation Officer for a fixed period,
not exceeding 3 years. Additional conditions may also be included, e.g.
attendance at a particular treatment centre. A person is
usually placed on
probation subsequent to a Social Enquiry Report being prepared for the courts in
the light of which probation officers
make an assessment of the offender’s
willingness to change and, therefore, his or her suitability for probation. In
1990 1,322
people were placed on probation.
Under the sentencing option
of adjourned supervision, the judge postpones a final penalty decision and
requests the Probation Officer
to supervise the offender and return to court
with regular progress reports. 1,423 offenders were placed on this form of
probation
in 1990, which is used frequently for quite serious
offences.
The intensive probation scheme is run by the probation service
along with a board of management which includes representatives from
the
Congress of Trade Unions, the judiciary, Gardai, and the Irish Youth Foundation.
It is designed for serious, persistent offenders.
Phase 1 of the scheme is a
detailed assessment period. Phase 2 is a 4 month group work programme.
Participants get an opportunity
to deal with personal problems, to undertake
work training courses and to follow through on job opportunities. Phase 3 is a
follow-up
period in which continuing, individual supervision focusing on areas
like employment and training is undertaken with the client.
This can go on for
varying lengths of time depending on the offender’s needs and the judges
view of his or her progress.
The scheme has been operating since the early
1990s and referrals come from the circuit courts and from prisoners who get
temporary
release while participating. In 1996 it was still only operating in
Dublin and
Cork.[298]
Scotland
Probation
Under the Criminal Procedure (Scotland) Act
1975, where a person is convicted of an offence (other than an offence for which
the sentence
is fixed in law), the court may, instead of sentencing him or her,
make a probation order. It may do so where it is of the opinion,
having regard
to the circumstances, including the nature of the offence and the character of
the offender, and having obtained a
special enquiry report, that it is expedient
to do so. A probation order is an order requiring the offender to be under the
supervision
of an officer of the local authority in the area in which the
offender resides, for a period of not less than 6 months nor more than
3 years.
A summary court can make an order where the court is satisfied that the person
committed the offence but without proceeding
to a conviction. A probation order
may direct the offender to comply with such requirements as the court considers
necessary for
securing the good conduct of the offender or for preventing
re-offending. Before making a probation order a court should explain
to the
offender the effect of the order and that if he or she fails to comply with it
or commits another offence during the probation
period he or she will be liable
to be convicted of and sentenced for the original offence. The offender’s
consent to the terms
of the order is required.
Since the Criminal Justice
(Scotland) Act 1987, a court may include a requirement for the offender to pay
compensation for any personal
injury, loss, or damage caused by the offence,
when making a probation order. Payment of the compensation must be completed no
later
than 18 months after the order is imposed or 2 months before the end of
the probation period, whichever comes first. Section 7 of
the Community Service
by Offenders (Scotland) Act 1978 enables the court in making a probation order
to require that the offender
perform community service, if the offender is of or
over the age of 16, has committed an offence punishable with imprisonment, and
the conditions for making a community service order have been met (see below).
This option does not appear to be widely used in
practice, and may not be
available as yet in all court districts throughout the country. For breach of a
probation order the court
may impose a fine, or sentence the offender for the
original
offence.[299]
Community
service order
In Scotland, after trialing in 4 areas the option of
imposing a number of hours of unpaid work for the community as a condition of
a
probation order, community service was made available by the Community Service
by Offenders (Scotland) Act 1978. Section 1 of
the Act made community service
available where an offender aged 16 or over was convicted of an offence
punishable by imprisonment,
other than murder. The Act does not state that
community service is to be imposed as an alternative to custody. It enables the
courts to impose a community service order on an offender “instead of
dealing with him in any other way”. Community
service is now available as
a sentencing option throughout Scotland for the High Court and sheriff courts.
As community service
involves a considerable outlay of resources in assessing
candidates and supervising work, it is not considered to be an appropriate
option for trivial offences.[300]
Prior to an order being imposed the court must obtain a report from the local
authority and be satisfied that the offender is suitable
for the work and that
there is work available. The offender’s consent is required. The minimum
number of hours of community
service which may be ordered is 40 and the maximum
is 240. An order can be made concurrently with or consecutive to another
community
service order but the total number of hours may not exceed 240.
Normally the work must be completed within 12 months although the
court has the
power to extend this. A community service order may be altered or revoked on
the application of the offender or the
local authority. The court may vary the
number of hours or revoke the order and impose some other sentence. In the
event of the
offender breaching an order the court may impose a fine and
continue the order, revoke the order and sentence him or her again (including
to
a custodial sentence), or vary the number of hours. In 1991 the enabling
legislation was amended to require that the courts impose
community service
orders only upon offenders who are facing custodial
sentences.[301]
There are
two types of community service placements. Team placements (which comprise
about 64% of community service orders) involve
small groups of
offenders–usually between 4 and 6–who carry out work for
disadvantaged members of the public or non-profit
community organisations and
who are overseen by a supervisor employed by the local community service scheme
(social workers employed
by local government rather than the probation service).
Agency placements involve the offenders providing services to non-profit
organisations and they are supervised by staff of the agency.
A community
service order may be accompanied by disqualification from driving, caution,
forfeiture or a compensation order but not
with any other sentence for the same
offence. In 1995 it was reported that roughly half of the offenders sentenced
to a community
service order in Scotland were sentenced in lieu of
incarceration. The order was otherwise used as an alternative to other
non-custodial
sanctions.[302]
Australia
Generally, when a person is found guilty of an offence in an
Australian Court, the judge has available a number of sentencing options.
The
first decision to be made is whether or not a conviction will be recorded. Once
this is determined, the courts will ascertain
whether the individual should be
dealt with by way of monetary penalty, unconditional release order, unsupervised
release order,
supervised release (intermediate sentences), or imprisonment.
Additionally, there are ancillary orders that a Court can attach to
various
modes of release. Ancillary orders refer to the payment of reparation,
restitution, compensation or costs and
damages.[303] This section
discusses unsupervised release order and supervised
release.
Unsupervised conditional release
This is
available in all jurisdictions. It had its origins in ‘bonds’ which
have now been abolished in Northern Territory,
South Australia, Victoria, and
Western Australia. The conditions of release are considered necessary to
minimise the risk of further
offending. There are four categories of
unsupervised conditional release under the different statutory sentencing
regimes:
In
most jurisdictions courts have the power to require that offenders enter into a
financial bond aimed at securing their compliance
with the conditions of their
release. It may be supported by sureties. South Australia is the only state
that has a statutory limit
to the amount which may be fixed by way of
recognisance (a bond with conditions i.e. good behaviour for a specified period)
or security.
In all jurisdictions there are statutory provisions regarding the
combining of unsupervised conditional release with other sanctions.
For
example, Tasmania can combine it with prison, fine, or a community service
order; New South Wales, Northern Territory, Queensland,
Victoria and Western
Australia can combine it with a fine only.
There is provision for both
mandatory and optional conditions to be attached to the conditional release
order. A mandatory requirement
is that the offender be of good behaviour during
the term of the order (the bad behaviour must bear some relationship to the
original
offence). Additional conditions may include: orders for compensation,
restitution or reparation (ancillary orders); pecuniary penalties;
treatment;
reporting to the Police; abstention from alcohol/drugs; surrender of passports;
residence; and participation in educational
programmes.
It is common to
jurisdictions (except Commonwealth and Australian Capital Territory) that courts
require an offender to reappear before
the court if and when called upon.
Non-compliance with conditions exposes the offender to being re-sentenced for
the original offence.
Courts should explain the purpose and consequences of any
orders they propose to make, as well as the consequences of any failure
to
comply with their conditions. However, failure to provide such explanation will
not necessarily invalidate any orders made).
Theoretically, orders require the
offender’s consent.
Intermediate sentences
of supervised release
Supervised probation
This is a form of release requiring an offender to be subject to the supervision of, and to obey the reasonable directions of, a probation or community corrections officer. It can be either a conviction or a non-conviction order. It may be attached to conditional release orders with or without conviction upon an offender giving security to be of good behaviour.
Supervised probation is considered suitable for an offender who “has not yet manifested a high degree of criminality but who does show signs of personal inability to cope with stress”[304]. Eligibility requirements are the same as those for unsupervised conditional release (as probation orders are attached as a condition of a conditional release order). Orders depend on offender’s consent to their imposition.
There are a number of standard conditions usually included in all supervised probation orders. These are that:
There are specific variations in standard conditions and their applicability among states. In Commonwealth, Australian Capital Territory, and New South Wales conditions are at the courts’ discretion, although most courts use some, if not all.
In Queensland the standard conditions are mandatory. In addition the state has two extra requirements. These are that the offender take part in counselling and satisfactorily attend other programmes as directed by the court or supervising officer and/or that the offender not leave or stay out of Queensland without the supervising officer’s permission.
South Australia has only two mandatory conditions. These are that the offender must comply
with all lawful instructions of the supervising officer and that they must report within two working days of the making of the order to the supervising authority. Section 50(1)(a) of the Criminal Law (Sentencing) Act 1988 (SA) also provides that the supervising probation officer may give reasonable directions to the offender with respect to reporting requirements, notification of change of address or employment, obtaining permission to leave the State, residing in any particular place or with any particular person, or taking up or giving up any particular employment.
Generally, the courts have a wide discretion to include in a supervised probation order any other conditions necessary to ensure the future good behaviour of the offender. This may include requirements that the offender: attend for medical, psychological or psychiatric treatment; reside in particular locations or with a particular person; abstain from alcohol or drugs; take part in counselling or education programmes; or make reparation, restitution or pay compensation for any personal or property damage resulting from the offence in respect of which the order was imposed. In exercising the discretion to include any other conditions in a supervised probation order, courts should have regard to the efficacy and practicability of any condition imposed.
The maximum time limits on supervised probation orders are generally between 2 and 5 years although in the cases of Australian Capital Territory and New South Wales there is no limit when there is a conviction, and South Australia has a maximum of 12.5 years both with and without a conviction.
In Commonwealth, Australian Capital Territory, Northern Territory, and Tasmania the courts can combine supervised probation orders with other penalties for the same offence (there is no legislative prohibition upon the imposition of a custodial sanction for one offence and a probationary term for another), and can impose both imprisonment and probation for the same offence (commencement of probation occurs once custodial sentence is completed).
Community service orders
Community service
orders require offenders to make restitution to the community for their criminal
conduct by performing unpaid work
in the community for a set number of hours.
The criteria for work while on a community service order are:
In all jurisdictions where community service orders are
available, they may be used as a sentence in their own right. In no Australian
jurisdiction is the imposition of this penalty still dependent upon a
determination that imprisonment should otherwise be imposed.
Community service
orders can be imposed either in substitution for, or in default of, payment of
fines. A substitution order may
be imposed either at the time of the original
sentence, if it appears that an offender has insufficient means to pay a fine,
or if
an offender subsequently defaults in payment.
Community service
orders are regarded as severe sanctions. It is a penalty that is not to be used
where a less intrusive or serious
sanction would serve the sentencer’s
purpose. On the sentencing scale, it is regarded as more severe than supervised
probation
and only marginally less severe than a custodial sentence.
A number of factors are considered by the court when deciding whether to make a community service order. These include:
There is an increasing
move to incorporate educational, counselling, and personal development
programmes as a component of community
service. New South Wales, the Northern
Territory, Tasmania, Queensland and South Australia all have a statutory
provision which
allows for community service specifically to include
participation in approved educational or specified rehabilitation programmes
or
provides a very general definition for the term which encompasses any
‘activity’. The Australian Capital Territory
makes provision for
unpaid community service work only. Any other ‘activity’ can not be
included in a community service
order.
In all jurisdictions, offenders
subject to a community service order must report to the supervising authority
within a specified time
of the order being imposed. A supervising officer or
the court must notify the offender in writing of their obligations under the
order, which may include the day and time at which they are required to report
for work. The statutory obligations of offenders
common to all jurisdiction are
to:
Specific requirements relating
to an offender’s behaviour while performing the assigned work under a
community service order
are generally laid down in subordinate legislation.
These requirements relate to such matters as abstaining from alcohol or drug
consumption, refraining from obscene or threatening behaviour and not damaging
property at the work site.
There are variations among the States on the
maximum number of hours that can be imposed (ranging from 208 to 500 hours); the
minimum
age of offenders (16 or 18); whether or not a community service order
can only be imposed when a conviction is recorded; whether
the consent of the
offender is required (it is in all states except Tasmania and South Australia);
and offences to which they cannot
apply.
An additional restriction on
supervising officials peculiar to Queensland and South Australia, is that
officials are directed to avoid,
as far as practicable, giving directions which
would produce conflict with an offender’s employment, education, family
commitments,
or their religious beliefs. In New South Wales it is also possible
to impose 15 hours per week attendance at an attendance
centre.
Attendance centre orders
Attendance
centre orders[305] are available
in the Commonwealth, New South Wales, South Australian and Victorian
jurisdictions. They require an offender to attend
an attendance centre within
the community at regular, specified times during the week and weekends. Once
there, offenders engage
in personal development, education and other programmes
(for example, employment, financial management, driving education and drug
dependency) as directed and provided by the supervising authority.
Attendance centre orders were first introduced in Victoria in 1975.
They were originally only available when the court was of the
view that a term
of imprisonment would otherwise have been appropriate. The problem with this was
that it tended to produce an escalation
of penalties. Courts threatened
imprisonment in order to make available these orders in cases where a probation
order or fine would
have been equally appropriate.
These problems were
overcome in Victoria by the abolition of the attendance centre orders along with
probation orders and community
service orders and their replacement with a
single form of order called the community based order. However, the old orders
continue
to apply to juvenile offenders under the Children and Young Persons Act
1989 (Victoria). Attendance centre orders as a direct substitution for
imprisonment are no longer available in any Australian jurisdiction.
In
New South Wales, attendance centre orders can be made in addition to a fine and
may be combined with orders to perform unpaid community
work under the Community
Service Orders Act 1979 (NSW). Attendance centres offer a core programme which
is undertaken by all offenders. In addition, other programmes are provided
for
offenders with special needs in particular areas such as basic literacy and
numeracy and basic vocational skills. The legislation
further specifies that
the court may, when making an attendance centre order, require the offender to
undergo testing for alcohol
or drug use as directed by the assigned officer.
This serves two purposes. First, it enables those who have severe addiction
problems
and who may, for that reason, be unsuitable for an attendance centre
order, to be excluded from this penalty. Secondly, it enables
those who are
likely to respond to an AC dependency programme to be identified.
In
South Australia attendance centre orders imposed under ss39 and 42 of the
Criminal Law (Sentencing) Act 1988 (SA) can be combined with other
conditions applying to bonds, such as supervised probation orders and community
service orders. Section
39(1) refers to the court making orders under that
section “without imposing a penalty”, neither a sentence of
imprisonment
nor a fine could be imposed in conjunction with an attendance order
for the same offence. Additionally, s42(5) of the Criminal Law
(Sentencing) Act
1988 (SA) provides that any fees which may be required to be paid for
undertaking an approved programme are to be
borne by an offender, unless relief
from payment is given by the programme provider in accordance with conditions
imposed by the
Attorney-General.
Community-based orders
A community based
order[306] is a multi-faceted
non-custodial sanction available only in Victoria and Western Australia. It was
first introduced in Victoria
in 1985 and became available in Western Australia
under the Sentencing Act 1995 (WA).
The community based order was
designed to replace 3 non-custodial sanctions: supervised probation, community
service orders, and attendance
centre orders. It was introduced to allow
greater flexibility in sentencing. Community based orders are not considered to
be a
‘soft’ sentencing option as they place significant constraints
upon an offender’s behaviour and liberty.
Community based
orders’ increased flexibility makes them a suitable disposition for a
broad spectrum of offenders (including
those who demonstrate a high risk of
re-offending) and offences. They are considered unsuitable for offenders who
have committed
crimes of violence or who may present a continuing threat to the
community in terms of future serious offending. Factors such as
a history of
violent offending, or of committing offences while on bail, or during the term
of a previous community based order,
would tend to indicate a lack of
suitability for this sanction.
Community based orders should not be
imposed on offenders who present little or no risk to the community and whose
criminal behaviour
is sufficiently sanctioned by a fine or a non-supervised
order. As provision can be made for offenders to undergo medical treatment
or
treatment for alcohol or drug dependency, offenders with problems of this nature
should not be assessed on this ground alone as
unsuitable for this sanction.
Factors favouring the imposition of this disposition include stable family
relationships and a degree
of residential stability.
The offender’s
consent to the imposition of a community based order is necessary in Victoria.
In Western Australia, the offender
must consent only to any treatment conditions
imposed. The absence of any general consent requirements may represent an
acknowledgement
of the apocryphal nature of any consent given by the offender in
such circumstances.
In Victoria the time limit on the duration of
community based orders is a maximum of 24 months. The total number of hours
that may
be worked in any seven day period must not exceed 20, unless the
offender gives written consent in which case they may be able to
work up to 40
hours in 7 days.
In Western Australia, the duration of a community
based order cannot be less than 6 months. A community service requirement (a
primary
requirement, or condition, able to be attached to the community based
order) cannot exceed 120 hours but must be more than 40 hours.
Where more than
one order is made, the total number of outstanding hours to be performed must
not exceed 240. The minimum number
of hours to be worked in any one week is
12.
In Victoria:
In Western Australia:
Both Victoria and Western Australian
community based orders consist of core (mandatory) conditions and programme
conditions. To be
valid, an order must contain the core conditions and at least
one program condition. The core conditions deal with the basic regulatory
and
administrative aspects of the order (these differ between States).
In
Victoria, several programme conditions are provided. The purposes and
requirements of the first three major programme conditions
(community service,
supervision and personal development) are then specified separately. The court
has broad discretion to impose
any conditions considered desirable in addition
to those specified in the statute. The only limitation is that the court cannot
impose orders relating to the making of restitution or the payment of
compensation, costs or damages as conditions of a community
based
order.
In Western Australia, the programme conditions are divided into
supervision, community service and programme requirements. Programme
requirements include the personal development condition and the conditions
relating to medical, psychiatric and drug dependency assessment
and treatment.
There is specific provision for residence requirements to be imposed upon
offenders undergoing medical assessment
or treatment as part of a community
based order.
Supervising officers in Western Australia are directed to
avoid, as far as practicable, giving orders to offenders which conflict
with
their religious or cultural beliefs, or which interfere with their educational,
employment or training commitments.
Intensive correction
orders
Intensive correction orders are a form of sanction
available in Queensland, Victoria and Western Australia. Such orders serve both
punitive and rehabilitative functions. Rehabilitation is sought through
intensive supervision and participation in community work
programmes and/or
programmes designed to promote personal development and to reduce offending.
The punitive aspect of this sanction
is provided by the considerable constraints
it imposes upon an offender’s liberty within the community. In the
hierarchy of
sentences intensive correction orders rank just below imprisonment
but they are imposed only after a community based order or community
service
order has been excluded from consideration.
Victoria and Queensland
intensive correction orders are utilised for offenders sentenced to a term of
imprisonment of up to 12 months
to serve that sentence in the community, but
subject to more onerous supervision and program conditions that can be imposed
as conditions
of either suspended sentences of imprisonment or community based
orders. Intensive correction orders can only be imposed where a
conviction is
recorded.
In these two States, a primary precondition for the imposition
of an intensive correction order is that an offender must first be
sentenced to
a term of imprisonment of 12 months or less. The sentence is only suitable for
offenders who would genuinely merit
a custodial sentence if this sanction were
not available. The correct procedure for imposing this sentence is for the
sentencing
court to determine first the type and quantum of sentence that should
be passed. Only if imprisonment of 12 months or less is selected
can the court
resort to an intensive correction order. Accordingly, such orders are
appropriate for offenders who would otherwise
be sentenced to short terms of
imprisonment, but whose offending is not so serious that it warrants a
significant term of incarceration.
In Western Australia there is no
requirement that a term of imprisonment be imposed prior to the making of an
intensive correction
order. Again, such orders can only be imposed where a
conviction is recorded. A court cannot make a spent conviction order when
making an intensive supervision order.
In Queensland and Victoria, the
duration of intensive correction orders is the term of the prison sentence
originally imposed, which
cannot exceed 12 months. Accordingly, if an offender
is sentenced for more than one offence in the same proceedings, the court may
only make an order if the aggregate period of imprisonment imposed for all
offences does not exceed 12 months. In Western Australia,
an intensive
correction order must not be for less than 6 months nor more than 24
months.
Intensive correction orders consist of mandatory core or standard
conditions which attach to all orders made and optional conditions
which the
court may attach to the order.
In Queensland and Victoria, supervision,
community service and counselling or personal development conditions are all
provided as
core conditions which automatically attach to all orders. This also
marks the distinction between intensive correction orders and
community based
orders. The core conditions of intensive correction order also provide a higher
level of intervention than the maximum
conditions available under community
based orders. Additionally, an offender must perform unpaid community service
for 8 hours per
week and must attend other specific programmes (i.e.
counselling, treatment for drug abuse or personal development programmes) for
up
to 4 hours per week. In Queensland, offenders may also be required to reside at
community residential facilities for periods
of up to 7 days at a time, if so
directed by an authorised supervising officer.
In Western Australia the
only mandatory conditions are the supervision requirements. Community service
and personal development are
provided as optional conditions available to the
court in tailoring the sentence to the particular needs of offenders.
The
optional conditions that may be attached to an intensive correction order
include:
Periodic detention
Periodic detention is available in two
Australian jurisdictions, New South
Wales[307] and Australian Capital
Territory. For both, periodic detention is imposed as an alternative to full
time imprisonment and not as
a sentence in its own
right.[308] The Periodic
Detention of Prisoners Act 1981 (NSW) allows for the imposition of periodic
detention when a person is convicted of an offence and sentenced upon that
conviction
to a term of imprisonment of not less than 3 months and not more than
3 years (s 5(1)).[309] However,
periodic detention can be ordered for less than 3 months for certain
offences[310] including domestic
violence offences (s5A). In 1994 periodic detention eligibility was extended to
include fine defaulters (s 5C). Overall, periodic detention is considered
appropriate for offenders (aged 18 years or older) who, due to the nature and
circumstances
of their offending, may ‘deserve’ to be imprisoned but
who do not need continual custody in order to protect the community
from
harm.[311]
The sentence of
periodic detention is, in the first instance, a residential programme. Once
sentenced, detainees are required to
report to a periodic detention centre for
two days each week, usually from 7.00pm on Friday evening to 4.30pm Sunday
afternoon[312] for the duration
specified by the sentencing
court.[313] The maximum number of
hours of work that a periodic detainee can perform in any one day is 8 hours
(s23(1)). The detainee may be involved in any activity that the Commissioner of
Corrective Services considers conducive to the detainee’s
welfare/training
(s10(1)(a)) or, to perform work suitable to their physical capacity (s
10(1)(b)). Detainees cannot perform any work that would take the place of any
other person who would otherwise be employed in that work as
a regular employee
(s10(2)).
Once a detainee has completed either three months or one-third
of their sentence, whichever is greater, an application can be lodged
with a
Community Committee[314] for
placement onto Stage II of the periodic detention sentence (ss10 and
11).[315] Stage II is the
non-residential component of the sentence, where the detainee is required to
report directly to a nominated work
site on each of the two days of their weekly
detention. The detainee, therefore, is no longer required to stay overnight in
a periodic
detention centres. Placement into Stage II is not automatic as the
Community Committee examines the detainee’s attitude to
work, offences and
eligibility. If accepted and the detainee subsequently fails to attend work
sites without prior approval or if
they receive an adverse report from the work
site supervisor they can be returned to Stage I of the sentence. The objective
of Stage
II is to provide detainees with an incentive to comply with their order
particularly when the sentence is at the upper end of the
scale.[316]
The New South
Wales judiciary cannot impose periodic detention to be either concurrent or
cumulative with additional sentences of
periodic detention, if the length of
time to be served exceeds 3 years. When an order is cancelled the detainee
serves any unexpired
portion of the original sentence by way of full-time
imprisonment (s27(2)(a)). If the detainee has been convicted of additional
imprisonable offences while serving periodic detention, then the unexpired
portion
of the original imprisonment sentence will be served concurrently with
the subsequent sentence of imprisonment (s27(2)(b)).
Within the
Australian Capital Territory[317]
jurisdiction, the sentence of periodic detention as provided for by the Periodic
Detention Act 1995 can only be imposed when the
court would have otherwise
sentenced the person to a term of imprisonment between 3 and 24 months
(s4(1)(b)). Consequently, if the
sentence of periodic detention is cancelled,
imprisonment is imposed. The number of detention periods (or weekends) to be
imposed
is calculated at the rate of one detention period for each week of the
term of imprisonment to which the person would otherwise have
been sentenced (s
4 (2)). Consequently, the overall length of periodic detention can vary between
12 and 104 months. If a sentence
of periodic detention is combined either
concurrently or cumulatively with additional sentences of periodic detention,
the total
time to be served can not exceed 104 detention periods (or
approximately 21 months) (s 9). Offender consent is required before periodic
detention can be imposed (s
6(1)(f)).[318]
Unlike New
South Wales, the Australian Capital Territory periodic detention regime is
solely residential. Detainees (as with New
South Wales) are required to report
to the Symonston Periodic Detention
Centre[319] for two days each
week, usually from 7.00pm on Friday evening to 4.30 p.m. Sunday afternoon. Once
there, the Director of Corrective
Services can direct a detainee to participate
in any activity, class, group or undergo any instruction considered conducive to
the
detainee’s welfare or training. Additionally, work activity can be
performed either at the detention centre or at another
location. The work
activity is required to be suitable to the detainee’s physical capacity
(s15(1)). Examples of possible
work locations are hospitals; charity
organisations; educational institutions; homes for the elderly, infirm, or
persons with disabilities;
or any other place where the Australian Capital
Territory is the owner, occupier or administrator (s15(2)). The Australian
Capital
Territory jurisdiction contains the identical limitation to activity
performed while on periodic detention as New South Wales: that
the detainee can
not take the place of any person who would otherwise be employed on that work as
a regular employee (s15(3)).
Punitive work
orders
Punitive work
orders[320] are only available in
the Northern Territory. They were created in 1996 in response to what was
perceived to be a community demand
for harsher sentencing of property offenders.
Punitive work orders are provided in addition to and not in substitution for the
already
available community service orders.
The Attorney-General (1996)
explained the purpose of punitive work orders as (a) requiring offenders to
perform ‘hard work’
and (b) requiring that the work be performed in
a publicly degrading manner. Offenders undertaking these orders are required to
wear a distinctive uniform or label that will identify them to members of the
public as punitive work orders recipients. This punishment
has been described
as stigmatising shaming. The type of work is not specified but projects must be
approved by the Minister for
Correctional Services.
The order can only be imposed on offenders over the age of 15 years who have committed specified property offences and where imprisonment has been imposed under s78A of the Sentencing Act 1995 (NT). Accordingly, a punitive work order will not be imposed unless the sentencing court decides that, in addition to the mandatory term of imprisonment, such an order is warranted. Because a punitive work order cannot be imposed in substitution for a mandatory term of imprisonment and may not be imposed if its effect would be to release the offender from the requirement to actually serve any mandatory term of imprisonment imposed under s78A, it may be that this sanction will be used infrequently. The legislation, however, does not prevent a punitive work order from being imposed in substitution of any term of detention that a court might consider imposing in addition to the mandatory terms specified in s 78A. Further, while it is clear that a punitive work order cannot curtail any mandatory custodial term, the legislation leaves unanswered the question of whether a punitive work order can be undertaken during a term of detention where this would not result in the offender’s release from the requirement to serve the mandatory minimum term.
A punitive work order
cannot be imposed unless the sentencing court is notified that arrangements have
been made or will be made for
the offender to participate in an approved project
and the court must obtain a probation officer’s report on the offender and
his or her circumstances.
The legislation fixes a mandatory term of 224
hours for punitive work orders. The court has no discretion to order fewer
hours but
does have discretion as to the time within which those mandatory hours
are performed. Additionally, unless the offender consents,
he or she cannot be
required to undertake a punitive work order for more than 8 hours in any one
day. Conditions are placed on the
orders.
Table
Australian Community Supervision Sentences by
State
|
Community Supervision |
|
Community Based Sentences |
Alternatives to Imprisonment/Custody |
|
Australian Capital Territory |
Bail Supervision & Parole
|
|
New South Wales
|
Supervision, Community Service, Work Order, Supervised Attendance Centre
Order, Fine Substitution
|
Order excluding imprisonment e.g. bail supervision & Post-Prison Orders
e.g. Parole, License, After Care Probation, Partially
Suspended Prison
Sentences, Pre-release Order
|
Northern Territory
|
Court Ordered Community Service Order, Probation & Fine Default
Community Service Order
|
Bail Supervision & Parole
|
Queensland
|
Probation, Community Service & Intensive Correction
|
Qld Commonwealth Recognisance, Fine Option, Prison/probation, Parole &
Post Prison Home Detention
|
South Australia
|
Probation, Community Service Order & Fine Option Community Service
|
Parole & Supervised Bail
|
Tasmania |
Supervision, Community Service (Work Orders) & Fine Substitution (by community service orders) |
Wholly or Partially Suspended Prison Sentences |
Victoria
|
Intensive Correction Orders, Community Based Orders & Community Work
Orders
|
Parole & Fine Default Orders
|
Western Australia |
Community Based Order (may include supervision, community service
programs), Intensive Supervision Order (may include supervision
curfew or
program) & Community Service Order
|
Parole, Home Detention (Prison, Bail, Work Release, Work & Development
Order)
|
Table
Number of offenders by type of detention, by state
1996-97
|
Vic
|
Qld
|
WA
|
SA
|
Tas
|
ACT
|
NT
|
Aust
|
|
Prisons |
6,323 |
2,478 |
3,563 |
2,231 |
1,475 |
272 |
143 |
541 |
17,026 |
Community Supervision (as defined in Table ...) |
14 578 |
7 063 |
14 966 |
4 659 |
7 381 |
1 765 |
542 |
1 192 |
52 146 |
Periodic Detention |
1 562 |
NA |
NA |
NA |
NA |
NA |
61 |
NA |
1 623 |
|
22 481 |
9 541 |
18 888 |
6 890 |
8 964 |
2 037 |
746 |
1 780 |
71 222 |
|
1:2.6 |
1:2.8 |
1:4.2 |
1:2 |
1:5 |
1:6.5 |
1:4.2 |
1:2.2 |
1:3.2 |
NA – Periodic Detention is not available in this
State
Source: Report on Government Services, Vol 1, Education, Health,
Justice Emergency Management, Steering Committee for the Review of
Commonwealth/State Service Provision, 1998, p 444
Note: New Zealand’s ratio of people in prison to people on community based sentences is 1:4.2.
Canada
A number of alternatives
to imprisonment exist in Canada, the best known (aside from fines and
restitution) being probation and the
community service order. By far the
greatest number of offenders are handled by the provincial jurisdictions who
have had a major
role in the development of intermediate sanctions.
Probation
This is the most widely imposed sentence in
Canada (even exceeding fines), with adult probationers in 1996 numbering about
100,000.[323] It is principally
intended to be rehabilitative. The length and conditions of a probation order
can be varied to suit the individual
needs and circumstances of the offender, up
to a maximum of 3 years for adults and 2 years for young offenders (aged 12 to
17 inclusive).
Nationally, the median length of adult probation orders is 1
year.
There are 5 ways adult offenders can be on probation:
In the last instance,
probation begins either at release from prison or at the expiration of parole.
In provincial courts, more than
25% of probation orders follow
imprisonment.[324]
Most
probationers, except in Quebec, report regularly to probation officers who have
both a support and an enforcement function.
Probation officers may find a
programme or agencies for the treatment of drug addiction, the teaching of
financial management skills,
or education upgrading. They are to offer general
guidance intended to prevent reoffending. They are also to monitor compliance
with the conditions of the order.
There are 3 mandatory conditions with
each probation order: keep the peace and be of good behaviour; appear before
the court when
required to do so; and notify the court or probation officer of
any change of name, address, or employment. The court can also select
from a
range of other probation conditions, according to the circumstances of the
offender. They can include, but are not limited
to, the following:
Also, where available, a probation
order may contain the provision that the offender be placed under home
confinement and electronically
monitored for compliance. Upon request from a
probation officer the court may increase or decrease the number of optional
conditions,
eliminate all optional conditions, or reduce (but not lengthen) the
total period of the probation
order.[325]
An adult
probationer who, without reasonable excuse, fails or refuses to comply with a
condition of probation or commits a new offence,
may be charged with breach of
probation. It is a hybrid offence and can carry a maximum penalty of 2 years
if proceeded with by
indictment. There is evidence to suggest that probation
officers exercise considerable discretion in deciding whether to intervene
and
seek to revoke the probationary status of
offenders.[326]
Although
probation is widely used, few evaluations have been conducted of its
effectiveness in addressing the needs of offenders or
reducing their involvement
in criminal behaviour.
Probation is also the most common disposition in
the youth courts (being the most serious disposition in 48% of cases overall in
1994/95,
and in over 50% of both violent and property offences), where it can be
imposed on its own or follow a period of custody. Optional
conditions include
requirements to attend school, seek and maintain employment, or live with
parents or another adult the court considers
appropriate.
Community service order
As noted above, a community service order can
be a condition of an adult probation order under the Criminal Code. It
generally requires
the offender to work for a number of hours in a designated
community service programme. The Young Offenders Act 1985 also gives
judges in
youth courts the option of ordering a young offender to perform work for the
community, called a community service order.
Such work may be cleaning up
litter from parks, or removing graffiti from public buildings or structures.
The judge sets the number
of hours of work and defines a time period during
which the hours need to be
completed.[327]
Intermittent sentences
If a prison sentence is 90 days or less, the
judge has the option of making it intermittent. This most commonly involves the
offender
living at home during the week to work or attend school and spending
the weekends in prison. During the periods outside prison,
the offender is
technically on probation and must comply with the conditions of the order. Fine
defaulters who go to prison can
serve their time intermittently, with the prior
approval of the
court.[328]
Home confinement and electronic monitoring
Electronic monitoring is a way by which some
inmates may serve their prison sentences under home confinement. All of the
existing
programmes are operated by provincial corrections systems (as the
federal government decided against the option for federal sentences),
although
not all provinces use it. Alberta uses home confinement without the electronic
monitoring technology, relying on random
visits and telephone calls to check on
the offender’s presence at home. Individual provinces have evolved their
own way of
using the technology. It is possible to use electronic monitoring as
a condition of probation or for intermittent inmates for the
periods when they
are not in custody.
Saskatchewan uses electronic monitoring as a
front-end sentencing option with the judge placing inmates on it at the time of
sentencing.
Participation in such electronic monitoring programmes is generally
restricted to offenders who have been convicted of less serious,
non-violent
offences and who have a stable residence and a telephone. The programme may
require the offender to pay towards the
costs of the equipment and monitoring.
Electronic monitoring programmes are designed to be genuine alternatives to
imprisonment,
that is, in the absence of this option, the offender would have
been incarcerated for a term.
In British Columbia it is a back-end
option. Electronic monitoring can be recommended by the judge at the time of
sentencing an offender
to imprisonment, but the final decision remains with
corrections officials who release suitable candidates from prison on temporary
absences. Newfoundland has been using back-end electronic monitoring since
1994, which involves compliance with a schedule of community
programming. This
can include anger management, alcohol abuse, and cognitive skills programmes.
Home visits are also made, and
sobriety can be checked with an alco-meter. Only
low risk/low need offenders are eligible and sex offenders and men with records
of family violence are excluded. Offenders may be required to sign a consent
form to allow victims to be notified of their early
return to the
community.[329]
Conditional sentence
This is a new sentencing option available since
1996 which can be used for adult offenders sentenced to less than 2 years in
prison.
If the judge “is satisfied that serving the sentence in the
community would not endanger the safety of the community”
then he or she
can allow the offender to serve the prison sentence in the community, subject to
the supervision of a provincial correctional
agent, usually a probation officer.
At the same time, the judge imposes a jail term but suspends it as long as the
offender fulfils
the conditions of the
sentence.[330]
Conditions
are imposed which can be added to or reduced by the court over time. In
addition to standard conditions such as reporting
to a supervisor, the judge can
define such additional conditions as:
Selection of these or other conditions is to be aimed at preventing “a repetition by the offender of the same offence or the commission of other offences.”
The unique aspect of this sentence is that non-compliance with the conditions can result in imprisonment. Once an allegation that a condition has been breached goes to court, the onus is on the offender to establish that this is not true. If the judge is satisfied on the balance of probabilities that a condition has been breached, there are 4 options:
Conditional supervision
This is an infrequently used option available in the Young Offenders Act. The court can sentence a young offender to a period of custody not exceeding 3 years. Upon release from custody, the offender is placed on conditional supervision. The two measures combined cannot be longer than 5 years. While out of custody, the offender must comply with conditions chosen by the judge just prior to release.
Conditional supervision is a lot like probation, although closer to the full parole supervision of adults because it can be suspended if a condition is breached. The offender is returned to custody and may or may not be released again.
The individual states of the United States have a narrow range of court-ordered community sanctions which can be imposed. These can be grouped into common types: probation, intensive supervision probation, and other sanctions. By far the most common of these is probation.
Probation
Probation is the major sentence in the United States. It began in 1841 and by 1956 all States had adopted adult and juvenile probation laws. Adult probationers numbered nearly 3.3 million at the end of 1997 (the number of prisoners in custody totalled nearly 1.2 million) up from almost 2 million in 1985 and 1.1 million in 1980. They currently comprise about 58% of all adults under correctional supervision.
Probation is the most common form of criminal sentencing in the
United States. It is a court-ordered sanction through which an offender
is
placed under the control, supervision, and care of a probation staff member in
lieu of imprisonment, so long as the probationer
meets certain standards of
conduct. Probation in the United States is administered by hundreds of
independent government agencies,
each jurisdiction operating under different
laws and many with widely differing philosophies.
Anyone who is
convicted, and many of those arrested, come into contact with the probation
department. Probation officials, operating
with a great deal of discretionary
authority, significantly affect most subsequent judicial processing decisions.
Their input affects
not only the subsequent liberties offenders will enjoy, but
their decisions influence public safety, since they recommend (within
certain
legal restraints) which offenders will be released back to their communities,
and judges usually accept their sentence recommendations.
The pre- sentence
investigation or report is a critically important document, since over 90% of
felony[331] cases in the United
States are eventually resolved through a negotiated plea, and the court’s
major decision is whether imprisonment
will be imposed. Probation is usually
available as a sentencing option except for serious crimes such as murder, rape
or other serious
assaults, or in cases where either a mandatory minimum term of
imprisonment applies, or the offender is liable to ‘three strikes’
type provisions that may apply.
For offenders granted probation, the
court decides what conditions will be included in the probation contract between
the offender
and the court. In practice, when sentencing an offender to
probation, judges often combine the probation term with a suspended sentence,
under which the judge sentences a defendant to prison or jail and then suspends
the sentence in favour of probation. In this way,
the jail or prison
term[332] has been legally imposed
but is held in abeyance to be reinstated if the offender fails to abide by the
probation conditions.
Judges may also decide to employ what is known
as ‘split sentencing’, which is the imposition of a jail term along
with
probation. Throughout the United States, probation is combined with a jail
term in 17% of all cases, and 26% of felony cases. However,
this varies
considerably, with Minnesota requiring some 60% of persons who do probation
(both felons and misdemeanants) to also do
some jail time, while 80% of felons
in California who do probation also do some jail time. The jail time is served
first, followed
by the period on
probation.[333]
The judge
will also enumerate what conditions the probationer must abide by in order to
remain in the community. The conditions are
usually recommended by the
probation officer in the pre-sentence report. However, the judge may also
design them, and judges are
free to impose any terms of probation they deem
necessary (including authorizing the probation officer to impose “such
other
conditions” as they may deem appropriate).
There are three
types of conditions: standard, punitive and treatment conditions. Standard
conditions are imposed on all probationers
and include reporting to the officer,
notifying of change of address, remaining “gainfully employed”, and
not leaving
the jurisdiction without permission. Punitive conditions increase
the intrusiveness of probation, and include fines, community service,
victim
restitution, house arrest and drug testing. Treatment conditions are imposed to
force probationers to address a significant
problem, such as substance abuse,
family counselling, or vocational training.
The conditions form a
contract between the offender and the court, with a probation officer as the
enforcer. The Supreme Court has
made a number of stipulations about probation
conditions, within the broad framework that probation is not “prison
without
walls”, but rather, a form of conditional liberty. Conditions
must serve a legitimate purpose (protection of society or rehabilitation
of the offender), they must be clear, they must be reasonable, and
they must be constitutional (i.e. while probationers do have diminished
expectations of certain privileges, they retain basic human freedoms such as
religion,
speech, and marriage).
Should a defendant violate a probation
condition at any time prior to the expiration of his or her term, the court may,
after a hearing,
continue him or her on probation, with or without extending the
term or modifying the conditions, or revoke probation and impose
any other
sentence that was available at time of the initial sentencing (usually prison or
jail). As noted above, a suspended sentence
is often imposed along with
probation, and on revocation the judge may order the original sentence to be
carried out. When a suspended
sentence is reinstated, the judge may decide to
give credit for probation time already served or may require that the complete
original
incarceration time be served.
Over the years, the proportion
of probationers subject to special conditions has increased, probably as a
result of a more punitive
public mood and the availability of inexpensive drug
testing. More stringent conditions enhance the chances of failure, and this
is
reflected in statistics which show that while in 1990, 69% of those on probation
completed their terms, in 1997, this success
rate had dropped to
62%.[334]
Despite this,
the failure rate could be much higher. Research has shown that probation
conditions are not vigorously enforced, and
essentially, as long as they are not
rearrested for committing further offences, most offenders are not violated off
probation.
Thus, it is estimated for example that on any given day, about
10-20% of all adult felony probationers were on “abscond
status”.[335] One reason
for this may be that because the probation population is so large (see
statistics below), even revoking a few percent
of them or revoking all those who
are rearrested can have a dramatic impact on prison admissions. It is estimated
that between 30%
and 50% of all prison admissions in the United States are
probation and parole failures. It does not therefore appear to make much
sense
to revoke probation for technical infractions. Though some action is necessary,
it may be that prison is not always the best
response.
The ideal
caseload is thought to be about 30:1. However, it is estimated that the current
average caseload in the United States is
more like
258:1.[336] This means that in
many urban areas, no personal contact between the probation officer and offender
may take place beyond the initial
meeting. Two-thirds of all probationers in
Los Angeles in 1995 were supervised on “automated” caseloads. No
services,
supervision or personal contacts are provided. Probationers are
simply required to send in a preaddressed card once or twice a month
reporting
on their activities. In many cases, these are very serious offenders convicted
of violent offences such as rape, assault,
kidnap and robbery.
Intensive Supervision Probation
Intensive supervision probation programmes are community based
criminal sanctions that emphasize close monitoring. Some programmes
are
intended to divert offenders from prison or get them out earlier, while others
are conceived of more as enhancements to routine
probation. Petersilia and
Turner note that “the only common characteristic of ongoing intensive
supervision probation programmes
is that they are more “intense”
than routine supervision in a given
jurisdiction.”[337] They
have been adopted in some form in virtually every state. However intensive
supervision probation programmes vary from state
to state in target population,
intake decision-making procedures, and quantity, style, and duration of
“intensive supervision”.
The key features are often quite different
and may include any combination of the following:
The one common element in this design diversity is an emphasis on the surveillance and control of offenders rather than offender treatment.
Most of these programmes call for some combination of multiple weekly contacts with a supervising officer, unscheduled drug testing, strict enforcement of probation or parole conditions, and requirements to attend treatment, to work, and to perform community service. In Marion County, Oregon intensive supervision probation programmes impose drug testing, mandatory community services, and frequent visits with the probation officer. In most states, these programmes operate within the legislative frameworks of routine probation, with the more onerous conditions being imposed as special conditions of probation. In other states, such as California, intensive supervision probation is quite specifically provided for by legislation. California’s Criminal Code, s8052(e) includes intensive supervision as item (3) in the list of “intermediate sanctions”.[338]
Intensive
supervision probation programmes are intended to do two things. Firstly, they
are seen as having the potential to reduce
prison overcrowding without
jeopardizing public safety, and at less cost than prison. Secondly, they are
seen as providing more
options on the sentencing ‘menu’, because in
many jurisdictions, the choice of sanctions has often been imprisonment
or
probation, with fines being used for only minor infringements.
Other sanctions
A wide variety of other sanctions are provided
for in the United States. These are usually incorporated under the umbrella of
“intermediate
sanctions” along with intensive supervision.
California’s list of intermediate sanctions provides an impression of the
range of possible impositions:
(1) short-term “shock”
incarceration in either jail or prison, for a period of not more than 60
days;
(2) incarceration in a “boot camp” facility;
(3)
intensive supervision;
(4) home detention with electronic monitoring;
(5) mandatory community service;
(6) restorative justice programmes such
as mandatory victim restitution and victim-offender reconciliation;
(7)
work, training, or education in a furlough programme;
(8) work, in lieu of
confinement, in a work release programme;
(9) day reporting;
(10)
mandatory residential or non-residential substance abuse treatment
programmes;
(11) mandatory random drug testing;
(12) mother-infant
care programmes;
(13) community-based residential programmes offering structure,
supervision, drug treatment, alcohol treatment, literacy programming,
employment
counselling, psychological counselling, or any combination of these and other
interventions.
In most states, sanctions such as community service and
mandatory random drug testing are mostly used as adjuncts to probation or
intensive supervision, and are not used as separate sanctions. Community
service, for example, is often used as a way for indigent
offenders to provide
some sort of victim restitution. On the other hand, programmes such as
‘shock incarceration’ or
home detention with electronic monitoring
are semi-incarcerative in nature, and therefore perhaps not properly considered
community-based
sanctions at
all.[339] In line with their
intent of providing a ‘bridge’ between incarceration and the
community, they straddle the line between
the two. It should be noted however
that the Bureau of Justice Statistics, when accounting for the numbers
incarcerated or under
community supervision, include offenders under such
sanctions within the jail and prison statistics, rather than the community
supervision
statistics (except in the case of electronically monitored home
detention, where this is a condition of parole).
Although the concept of
house arrest or home detention has existed for a long time, it was not until the
development of electronic
monitoring technology that it became seen as a
realistic alternative sanction for criminal behaviour. While the number of
offenders
on electronic house arrest (both as part of alternative to jail
programs, and as parole release from prison) had risen from none
in the mid
1980s to about 70,000 in the mid
1990s[340], home incarceration has
not proved to be any sort of solution to jail and prison crowding.
Statistics[341]
Probation
was never intended to serve as a major criminal sanction (though its variants
increasingly are). It was designed for first-time
offenders who were not deeply
involved in crime and for whom individualised treatment and casework could make
a difference. However,
by the end of 1997, more than 3.2 million adult men and
women were on probation. The 2.9% increase of about 110,000 people since
the
end of 1996 was in line with the average annual increase of 3.0% which the
United States has seen in the probation population
since 1990.
Felony
offenders accounted for more than half of these (54%), while just over a quarter
had been convicted of a misdemeanour (28%).
14% were on probation for driving
while intoxicated or under the influence of alcohol, and 4% for other offences.
The rate of probation
use per 100,000 adult population varied widely, from
Kentucky at 410 probationers per 100,000 adult population, to Delaware with
3,225 per 100,000 adult
population[342]. This latter
figure equates to 1 in every 31 adults. Texas and California have the highest
numbers of probationers.
Table
Number of adults under community supervision or
incarcerated 1990-97
|
Adults under any correctional supervision as % of all US adult
residents
|
||||||
|
|
Community Supervision
|
Incarceration
|
||||
Year
|
Total estimated correctional population
|
Probation
|
Parole
|
Jail
|
Prison
|
||
1990
|
4348000
|
2670234
|
531407
|
403019
|
743382
|
73.6
|
2.3
|
1991
|
4535600
|
2728472
|
590442
|
424129
|
792535
|
73.2
|
2.4
|
1992
|
4762600
|
2811611
|
658601
|
441781
|
850566
|
72.9
|
2.5
|
1993
|
4944000
|
2903061
|
676100
|
455500
|
909381
|
72.4
|
2.6
|
1994
|
5141300
|
2981022
|
690371
|
479800
|
990147
|
71.4
|
2.7
|
1995
|
5335100
|
3077861
|
679421
|
499300
|
1078542
|
70.4
|
2.7
|
1996
|
5475000
|
3161030
|
676045
|
510400
|
1127528
|
70.1
|
2.8
|
1997
|
5690700
|
3261888
|
685033
|
557974
|
1185800
|
69.4
|
2.9
|
Percent change
|
|
||||||
1990-97
|
30.9
|
22.2
|
28.9
|
38.4
|
59.5
|
|
|
Ave annual 1990-97
|
3.9
|
2.9
|
3.7
|
4.8
|
6.9
|
|
|
The table above shows the way in which the overall correctional
population of the US has grown. Within this, the population on
probation[343] has grown every
year since 1990, as has both the jail and prison populations. However, despite
these rises, the percentage on community
corrections as a proportion of the
overall correctional population has fallen slightly, reflecting the greater rate
at which the
incarcerated population of the US is growing.
Table
Community corrections among the States, end of
year 1997.
10 States with the largest probation populations
|
Number supervised
|
10 States with the largest percent increase
|
Percent increase
|
10 States with the highest rates of probation supervision
|
Persons supervised per 100,000 adult state residents
|
10 States with the lowest rates of supervision
|
Persons supervised per 100,000 adult state residents
|
|
|
|
|
|
|
|
|
Texas
|
429093
|
Nevada
|
11.7
|
Delaware
|
3225
|
Kentucky
|
410
|
California
|
304531
|
Maine
|
10.7
|
Washington
|
3177
|
West Virginia
|
438
|
Florida
|
239932
|
New Hampshire
|
10.5
|
Texas
|
3095
|
Mississippi
|
556
|
New York
|
185881
|
Arizona
|
10.4
|
Georgia
|
2699
|
New Hampshire
|
556
|
Michigan
|
154236
|
Hawaii
|
9.8
|
Minnesota
|
2641
|
North Dakota
|
559
|
Georgia
|
148420
|
Alaska
|
9.5
|
Rhode Island
|
2607
|
Virginia
|
589
|
Washington
|
132014
|
Iowa
|
9.4
|
Connecticut
|
2260
|
South Dakota
|
641
|
New Jersey
|
130565
|
Missouri
|
9.3
|
Indiana
|
2222
|
Utah
|
690
|
Illinois
|
119481
|
Vermont
|
9.0
|
New Jersey
|
2153
|
Montana
|
720
|
Ohio
|
118761
|
Idaho
|
8.7
|
Florida
|
2146
|
New Mexico
|
723
|
Finland[344]
By international standards Finland’s criminal justice system includes relatively few alternatives to imprisonment. Until 1991 there were essentially only 3 sentencing options:
A conditional prison sentence can be imposed provided that “the maintenance of general obedience to the law” does not require an unconditional sentence. For younger offenders under 18 there is a presumption in favour of a conditional sentence by a special provision that allows the use of unconditional sentences only if certain extraordinary reasons call for it. In practice this means that the offence is very serious or that the offender has several prior convictions. Since 1976 conditional sentences can be used in combination with a fine. This option was used in 1991 in 37% of all conditional prison sentences for offences against the Penal Code.
In 1991 Finland introduced community service in certain districts on a trial basis. It was extended to cover the whole country in 1994. The duration of the sentence may vary between 20 and 200 hours. It is a sanction that can only be imposed as an alternative to an unconditional prison sentence of up to 8 months (240 days). In order to ensure that community service will really be used in cases when the offender would otherwise have received a prison sentence a two step procedure applies. First the court must make its sentencing decision applying normal sentencing principles and criteria. If the result is unconditional prison then the court may transfer the sentence into community service, if certain requirements are fulfilled.
The prerequisites for sentencing the offender to community service are:
In commuting imprisonment into community service, one day in prison corresponds to one hour community service (so 2 months of custodial sentence is commuted into roughly 60 hours of community service). If the conditions of the community service order are violated, the court normally imposes a new unconditional sentence of imprisonment.
The first indications are that generally the new sentence has been applied in the manner intended by the legislators. As the number of community service orders has increased, the number of unconditional prison sentences has declined. In particular, drunk driving offenders have benefited from the new option. In 1996 the average daily number of offenders serving a community service order was about 1,000, compared to about 3,000 inmates.
The Dutch Penal Code lists 4 principal penalties in order of severity: unconditional imprisonment, suspended sentence, community service, and fine. All offences may be sentenced with a fine. Sentences of imprisonment of 1 year or less can be completely or partially suspended, and a sentence of between 1 and 3 years can be partially suspended. Since 1983 prosecutors have also been able to resolve criminal cases that carry a maximum prison term of 6 years or less by means of arrangements called “transactions”, whereby the suspect pays a sum of money in order to avoid prosecution. Penal policy since the 1980s has been characterised by the intention to reduce short-term imprisonment and expand the use of alternatives to imprisonment.[345] In 1995 fines were imposed in 47% of cases resulting in a sentence.[346]
Community service orders
Described as “the performance of unpaid work for the general good”[347], the community service order was introduced into the Dutch Penal Code as a distinct sentencing option in 1989. It was first used on a trial basis, beginning in 1981, within the existing statutory framework (as a condition of a decision to waive prosecution or to settle a case without a court hearing, or as a condition of a decision to suspend pre-trial detention, to suspend a sentence, to postpone a sentence, or to grant a pardon).[348]
As a statutory sentence the community service order can only be imposed as a substitute for an unconditional prison sentence of 6 months or less or a part-suspended/part-unconditional prison sentence of which the unconditional part is 6 months or less. It may not be used as an alternative to a suspended prison sentence, a fine, or a fine-default detention and can only be imposed with the consent of the offender at the trial stage. There must be agreement from the accused that he or she is willing to carry out non-remunerated work of a type described in the order. The judge has to state in the sentence the prison sentence for which the community service is a substitute and specify the number of hours work to be carried out, the period within which it must be completed, and the nature of the work. There is a maximum time of 240 hours to be served but no minimum. A community service order of less than 120 hours must be completed within 6 months, an order of 120 hours or more within 12 months. The prosecution service supervises compliance with community service orders, with assistance from the probation service. If the work is not carried out properly (about 10% of all orders) the judge may, at the request of the prosecutor, replace the community service order with the prison term mentioned in the sentence to be served in full or in part. The judge must take into account work that has been properly carried out. In 1992 the number of community service orders imposed numbered 8,585.[349] In 1995 about 14,400 community service orders were imposed.[350]
No offences are excluded by statute from a punishment with a community service order, although given the boundary of the 6 month prison sentence community service operates mainly for mid-level crimes and is seldom ordered for more serious offences unless there are mitigating circumstances.
Community service work must benefit the community. It can be with public bodies like the government or private organisations involved in health care, the environment and the protection of nature, and social and cultural work. To discourage unfair competition with paid workers, regional review committees check that no regular workplaces are being used for community service.[351]
Community service orders have been evaluated twice by the Dutch Ministry of Justice, covering the periods February 1981 to May 1983 and the year 1987. There were strong indications that in some jurisdictions in many cases these orders were not substituting for short term prison sentences as required by statute, but for fines and suspended sentences, although the extent of this was not known. Interviews with members of the judiciary and the prosecution service had the majority admitting that they had no objections to using a community service order instead of a suspended sentence or a heavy fine.[352]
The government aims to have 30,000 community service orders imposed per annum by the year 2000. To achieve that target figure, some restrictions in the Penal Code on the use of these orders will be removed. The offender will be able to consent in writing to the order rather than having to give it in person at the trial (to include those offenders who do not appear for trial), and the order will be able to be imposed as a substitute for a fine as well as for a short term of imprisonment.[353]
Other community sentences
In the 1990s new community-based sentences have been introduced by way of experiments on a restricted scale, including training orders, combination orders, and electronic monitoring. A training order requires the offender to learn specific skills or to be confronted with the consequences of his or her offending for the victim. They are mainly imposed on juvenile and young adult offenders and range from 5 meetings for 40 hours a week for up to 3 months or longer. Long term intensive training orders may be imposed as a separate sentence on adult offenders only. Training orders are usually imposed in combination with a community service order or as a condition attached to a suspended sentence. There are proposals to extend the number of hours for a training order or a combination order to 480 hours, and making a training order a principal penalty on its own. Electronic monitoring can be imposed in lieu of the last part of a prison sentence or in combination with a community service order. The combination of electronic monitoring with a community service order can substitute for imprisonment of between 6 and 12 months. It was introduced on a trial basis in 4 jurisdictions in the Netherlands.[354]
In 1993 new community-based sanctions which included an intensive day program and intensive supervision were introduced on a restricted trial basis.
Despite this adoption of further alternatives to imprisonment, the prison population has increased substantially over the last decade. In 1995 there were 26,935 unconditional prison sentences imposed, compared to 20,119, in 1985.[355] The number of sentences of a year or longer nearly tripled over this period. In 1997 the imprisonment rate was 78 per 100,000 population,[356]compared to 24 per 100,000 population in 1980.[357]
In German criminal law the main penalties are day fines and imprisonment (suspended or immediate). Community service and probation are available but not as penalties in their own right. Prison sentences of one year or less regularly require suspension (the Penal Code provides that the court shall suspend the execution of the sentence whenever the offender can be expected to refrain from further offences without a prison experience). Sentences of between 1 and 2 years may be suspended if the offender presents a low risk of recidivism and the particular circumstances of the offence or the offender justify a suspended sentence. Sentences of more than 2 years cannot be suspended. When the court suspends a prison sentence it must set a probationary period of 2 to 5 years and the offender is placed under the supervision of a probation officer. The court can include conditions such as community service, restitution to the victim, payment of a summary fine to the state or a charitable institution, and not associating with particular individuals. If the conditions are not met or the offender commits another crime during the probation period, suspension may be revoked and the original prison sentence served. In 1991 about 70% of all prison sentences were suspended. About one-third of suspended sentences are revoked (usually owing to the commission of a new offence).
In the 1980s community service was introduced as an option for fine defaulters, as a way of working off the fine. Offenders may otherwise receive imprisonment for non-payment of a fine.
Since 1975 Germany has also had an informal sanctioning process for minor offences. The prosecutor proposes dismissal of the case in exchange for the defendant paying a sum of money to the state, the victim, or a charitable organisation. The amount is usually the rough equivalent to the fine that might have been imposed in the event of a formal conviction. The payment neither requires a formal admission of guilt nor implies a criminal conviction. This simplified procedure was extended in 1993 to include suspended sentences of imprisonment of up to 1 year.
In 1989 about 60% of offenders received a fine, 27% conditional dismissal, 8% a suspended prison sentence, and 5% imprisonment.[358] The prison population has declined from 56,870 in 1963 to 34,398 in 1994. Unsuspended sentences fell from 92,576 in 1967 to 32,359 in 1991.[359]
Appendix 2: Reviews of Community-based
Sentences
This appendix details some of the key findings of
Department of Justice studies that involved reviews of community-based
sentences.
Periodic
detention
Information obtained from Sentencing Under the Criminal
Justice Act 1985: The First Six Months (McDonald, 1986) indicated that the
judiciary did respond to the shift in emphasis, from custodial to
community-based sentencing, during the first six months after the
Criminal
Justice Act 1985 came into force. There was a 3% decrease in the use of
custodial sentences accompanied by a 1% increase
in the use of periodic
detention in that period. Under the new legislative regime, 1,092 more
convictions resulted in periodic detention.
This increase applied only to
non-Mäori offenders who were 3% more likely to receive this sentence under
the new Act. Mäori
offenders were 1% less likely to receive periodic
detention than in the previous
period.[360]
The increase in the imposition of periodic detention was also noted in The
Impact on Sentencing of the Criminal Justice Act 1985 (Spier
& Luketina,
1988). The proportion of cases resulting in periodic detention doubled between
1982 (at 6%) and 1987 (at 12%).
However, there was no decrease in the
proportion of offenders given a custodial sentence over that same period.
Nevertheless, the
report commented that there was evidence to suggest that
periodic detention did provide an alternative to custodial sentences. Analysis
revealed an inverse relationship between the proportion of violent offenders
given respectively a custodial sentence and a sentence
of periodic
detention:
That is, during the years in which the proportion of [violent] offenders sent to prison drops, more offenders are sentenced to periodic detention.[361]
Another observation was that those placed on periodic detention in 1987
were only slightly more likely to breach the conditions of
that sentence than
were offenders given periodic detention in 1979. Finally, offenders sentenced
to periodic detention were also
considerably less likely under the new Act to be
also placed under the supervision of a probation officer by way of the new
sentence
of supervision (which replaced
probation).[362]
Despite the lower likelihood of an offender receiving periodic detention combined with supervision, Asher & O’Neill (1990)[363] in their qualitative research project[364] found that the ability to combine periodic detention with supervision was perceived to maintain the credibility of the sentence of periodic detention. This was because while offenders were contributing back to the community through their work projects (reparation), in an environment involving some element of penalty, they were also able to access help to address their personal difficulties. Credibility was also maintained by the potential for an offender to receive imprisonment for breach of the sentence, which was not the case with the other community-based sentences.[365]
Asher and O’Neill (1990) found that, generally, the sentence of periodic detention was viewed as one of the ‘major successes of the penal system’. In addition to its ongoing credibility, described above, periodic detention was considered to ‘run efficiently’ and ‘relatively inexpensively’ (in contrast to prison). However, the respondents did offer two suggestions to expand on the then current format of periodic detention. Firstly, a suggestion was that periodic detention work projects should be conducted on weekdays as well as Saturdays. This was justified on the grounds that ‘many of those undergoing periodic detention are currently unemployed’ and that the availability of periodic detention on more than one day would ‘discourage the build up of criminal subcultures’. Development of the sentence of periodic detention to include ‘social skills training’ and ‘personal growth opportunities’ was the second suggestion presented. Concern was also expressed regarding the number of ‘difficult’ offenders on periodic detention, although this was not discussed in any detail.[366]
The increase in the imposition of periodic detention was again reported by Spier, Luketina & Kettles (1991) in Changes in the Seriousness of Offending and in the Pattern of Sentencing: 1979 to 1988. [367] As periodic detention had become a much more frequently utilised sentence, two distinct themes had emerged. Firstly, offenders were sentenced to periodic detention for offences that were less serious on average than those sentenced to community care and supervision (p35), with the average offence seriousness for cases resulting in periodic detention decreasing by 12% between 1979 and 1988 (p 50). The authors comment that this finding “differs from the generally accepted view that periodic detention is the sentence that is next in severity to a custodial sentence” (p 60). This also raised the possibility that some judges were now sentencing offenders to periodic detention relatively early in their offending histories compared to traditional practice. This raised the risk that these offenders could be fast-tracked towards imprisonment by other sentencing judges who would rank a previous sentence of periodic detention as higher in severity and therefore consider that the next sentence should be a custodial one.[368]
The second theme to emerge from this report was that as the numbers of those sentenced to periodic detention increased, so did the numbers of serious offenders. In 1979 there were 44 offenders who were sentenced to periodic detention after being convicted of an offence with a seriousness rating greater than 200. In 1988 there were 171 offenders in this category who received a sentence of periodic detention.[369] This is reflective of one of the principal conclusions of this report, that there was a significant increase in the seriousness of the offending resulting in convictions between 1979 and 1988. The authors commented that “it is clear that the New Zealand justice system is having to deal with a much higher number of serious offenders than in the past”.[370]
Both of these themes received further discussion in Imprisonment as “The Last Resort” The New Zealand Experience (1992). Here, concern was expressed regarding the increasing use of periodic detention which was the most common community-based sentence imposed in 1991 (61% of all community-based sentences). There were two key reasons for this concern. One was that periodic detention was the most resource intensive community-based sentence. Figures cited indicated that the sentences of supervision, community care and community service cost an average of $1,005 per person per year, while a sentence of periodic detention was costing around $2,522 per person per year.[371]
The second reason for concern was the mixing of persons convicted of both serious and less serious offences. Not only did this introduce a widely disparate offending population into periodic detention centres which could have posed management difficulties but the potential for fast-tracking offenders to imprisonment increased with the increased use of periodic detention in cases involving comparatively minor offences.[372] This was consistent with the observation of Spier, Luketina and Kettles (1991) above.
The effectiveness of periodic detention in reducing or preventing recidivism was the subject of a report completed in 1991. Asher and Norris (1991)[373] examined reconviction rates, within 12 months of the sentencing dates, of those sentenced to a community-based option in 1989. A population sample of 400 periodic detainees was extracted from the Wanganui Computer System. The proportion of the sample re-convicted was 54.8%. The estimated recidivism was between 49.9% and 59.7% (with 95% confidence).
A comprehensive review[374] of the sentence of periodic detention was completed in 1992 (Review of Periodic Detention Report, 1992) in response to recommendations presented from a previously completed departmental productivity improvement project. The term of reference for the review was the critical examination of the district management of periodic detention and, consequently, the review focus was predominately operational[375]. However, the general outcome of the review was affirmation of the sentence of periodic detention:
...periodic detention fits in well with the whole range of community based sentences contributing a “hard edge” to the rest of the spectrum of sentences.[376]
Additionally, consultation with correctional staff highlighted ‘widespread agreement’ that periodic detention stands at the punitive end of the scale of community-based sentences; the last resort before imprisonment.[377]
The review team expressed concern about the increase in the imposition of periodic detention since 1985 because of the potential for net-widening, which not only resulted in increased financial costs to the State but also increased ‘human costs’. Both of these sorts of costs were incurred when some offenders were ‘dragged’ further into the criminal justice ‘net’ than necessary for the purpose of punishment. The review team argued that this was not in the ‘best interests’ of either the public or the individual offender.[378]
In order to ‘cap’ the periodic detention muster, the review team proposed the introduction of a maximum limit, at district level, of 300 offenders ‘on muster’ at any given point in time. This would encourage both ‘appropriate sentencing’ and ‘optimum use of resources’.[379] A number of strategies were devised and proposed in order to ensure that the ‘cap’ would not be exceeded. These were:
It was envisaged that these strategies would not only slow down the documented increase in the use of periodic detention, but that the strategies would also facilitate the diversion of offenders convicted of relatively minor offences from periodic detention. In conjunction with this approach to the prevention of ‘net-widening’, court servicing teams were also instructed to become more proactive in their court work. This was to occur through the ‘vetting’ of any case where the judiciary indicated that a sentence of periodic detention was under consideration rather than waiting until a pre-sentence report was requested.[382]
Simultaneously, the review team advocated the introduction of a two tiered system of administering periodic detention in order to increase the credibility of this sentence as an alternative to imprisonment. The two tiered system would increase the intensity of the time served on periodic detention, thereby increasing the applicability of the sentences to more serious offenders, in particular property or driving offenders. The proposal centred on court servicing teams highlighting, by way of pre-sentence reports, s 40(2)(a)(i) of the Criminal Justice Act 1985. This section allows for judicial discretion to ‘specify the number of occasions in each week on which the offender is required to report’[383]. The report considered the desired ‘time served’ for this group of offenders was two days each week, for eight hours on each occasion.[384]
A final point is that the review team briefly discussed a potential new sentencing initiative. This initiative was the establishment of the “Community Corrections Order”, which would incorporate all current community-based sentences. A discussion paper was circulated to staff, however the review team did not support this initiative for the following reasons. Firstly, it was argued that in terms of sentencing objectives, a combined order would have ‘little to offer’ compared to what was already available. Secondly, that the combined order may result in a ‘blurring’ of, or a conflict in, sentencing objectives. Thirdly, a combined order could raise the sentencing tariff and ‘fast-track’ offenders to prison because the sentencing alternatives to imprisonment would be drastically reduced.[385]
Community
service
The sentence of community service came into effect on 1
February 1981. Community service was the first sentence in New Zealand in
which
responsibility for the supervision of an offender was given to people within the
community. It was also the only sentence
for which the consent of the offender
was to be obtained before its imposition (for a fuller description see section
2).
Lee (1981) conducted the first review of community service as a background paper for the Penal Policy Review Committee.[386] She found that since the introduction of community service there had been a steady increase in its imposition. The predominant offence category that resulted in community service was offences against property. A conviction for a traffic offence was the second most common offence resulting in community service.[387] The length of the orders remained relatively constant with approximately 50% involving between 51 and 100 hours’ community service.[388] 52% of those sentenced to community service during this period also received other sanctions (predominately disqualification from driving and/or probation). Approximately 80% of community service placements were performed “at or for any hospital, or at or for any charitable, educational, cultural or recreational institution or organisation”.[389]
During
February and March 1981, nearly a third of all those sentenced to community
service were female. However this proportion had
decreased by July/August to a
quarter (25.5%).[390]
Approximately 2% of males and 10% of females were taught a new skill in order to
carry out their community service. During the
first two months of the
availability of community service nearly 50% of those sentenced to community
service were Maori or Pacific
Islanders. Again, this proportion had decreased
by July/August to 38%. The single largest age category of those sentenced to
community
service was for those under 21 years of age (40%). Lee (1981) also
examined the socio-economic status of those sentenced to community
service[391]. The range of the
scale was 1 to 6, with 1 representing a high socio-economic status. 76% of
males on community service were in
Levels 5 and 6. However, just over 50% of
females did not have a usual occupation and thus could not be allocated to a
level.[392]
Community
service orders were also examined in Leibrich, Galaway, and Underhill (1984),
which comprised three research studies. The demographics relating
to people sentenced to community service were examined in the first study
(Leibrich, 1984).[393] The
majority of those sentenced to community service had pleaded guilty in court
(91%) and three quarters of the population had
had legal representation during
court proceedings. The majority of convictions were for property offences,
whereas offences against
the person accounted for 16% of the community service
population during this time. An additional sentence of probation,
disqualification
or fine was given to just over half (52%) of the group.
Probation was jointly imposed in 27% of the cases examined, with the majority
of
this group receiving probation for a year or less. The average sentence length
was 89 hours, with approximately a quarter of
the group (24%) being given over
100 hours of community service.
The community service group was convicted
of more serious offences, when compared to the seriousness ratings of ‘all
offences’
generally.[394]
Within the ‘all offences’ category less than half (47%) of all
offences had a seriousness rating of 70 or more. However,
77% of the community
service group offences were rated 70 or more. Both men and non-Maori were
convicted of more serious offences
than women and Maori respectively.
[395]
The population
demographics of those sentenced to community service were similar to those
observed by Lee (1981). Females were over-represented
in that one-third of this
population was female and yet only one in seven offenders at the time were
female. Similarly, 41% of the
community service population were Maori whereas
33% of offenders were Maori. 58% of the community service population were
under
25 years of age which is similar to the proportion of all offenders in
that age bracket, although proportionately more of those sentenced
to community
service were in the 20-29 age range (74%) than was the case with the general
population (53% in the 1981 population
census).
[396]
The second community
service study completed in 1984 was a survey of the experiences and opinions of
people connected with the sentence
of community service (Leibrich, Galaway &
Underhill, 1984). Accordingly, structured interviews were held in seven
probation
districts with a sample of judges (n = 11), probation officers (n =
42), community sponsors (n = 65) and offenders (n = 68). The
review objective
was to gain a general picture of how the community service sentence regime was
operating from the perspective of
those who impose, administer, facilitate and
receive this sentence.[397] The
issues which emerged were primarily operational in focus. Examples include
difficulties in identifying a sponsor, the meaning
of ‘informed
consent’, informing the judge about placements, ongoing communication
during the placement and ‘tightening
up’ breach
regulations.[398]
However, two issues emerged from the survey which are particularly
pertinent to the current discussion. The first issue was the determination
of
the most appropriate place of community service in the sentencing tariff. There
was no consistent view as to where community
service should be located. Most
respondents felt that community service fell between a fine and periodic
detention. However, others
felt community service was more appropriately
located between periodic detention and prison. Several probation officers
expressed
the view that community service was a ‘soft
option’.[399]
The
second issue that emerged was whether or not community service was seen [or
should be seen] as an alternative to other sentences
when others were not
considered appropriate, or whether it should be recognised and utilised as a
sentence in its own right. The
provision of an alternative to custodial
sentences was the aim least often seen as being accomplished. The predominant
response
was that community service was [and should be] viewed as an
‘alternative’ to other non-custodial sentences deemed inappropriate
for particular offences/offenders. Key factors considered in determining
‘appropriateness’ were:
• the ability of an offender to pay a fine [if a fine would cause hardship, the recommendation would be for community service];
• the seriousness of the offence [a fine was viewed as more appropriate for less serious offences];
• practical difficulties for the offender in terms of sentence compliance;
• the availability of periodic detention in a particular
area.[400]
Positive reasons
for choosing community service (for example, the offender had particular
abilities that could contribute to the community)
were also provided by both
probation officers and the judiciary (albeit to a much lesser
extent).[401]
An examination of recidivism in relation to the sentence of community service
was the third research project undertaken in 1984 (Leibrich,
1984). In order to
provide a comparable context, a sample of persons sentenced to non-residential
periodic detention was chosen
as a second sentence group. Reconviction was
defined as a court appearance resulting in a conviction during the year
following the
sentence
date.[402]
Overall
reconviction rates of 38% for the community service group and 59% for the
periodic detention group were identified. However,
it was not possible to infer
that the sentence of community service produced lower reconviction rates than
the sentence of periodic
detention. This was because reconviction rates varied
significantly when the samples were disaggregated. The review suggested that,
given the impact of other factors (e.g. previous criminal history, seriousness
of previous sentences, number of previous convictions,
age at first conviction,
type of offence, seriousness of offence), reconviction rates were unlikely to
provide sensitive estimates
of the effectiveness of a
sentence.[403]
A regional
examination of the use of the sentence of community service was also produced in
1984. The aim of this review was specifically
to seek evidence of the extent to
which community service was utilised as an alternative to imprisonment in Otago
and Southland (Bradshaw,
1984).[404] Results indicated
that community service was imposed on offenders who would have been imprisoned
if community service had not been
available, particularly female
offenders.[405] The community
service group had less serious current offences than those sentenced to prison
or probation but more serious offences
than those sentenced to periodic
detention or a fine.[406] In the
author’s view this indicated that a ‘hierarchy of penalties’
did not exist:
That is, contrary to what is often assumed, there is no ladder:
prison/periodic detention/community service/probation/fine, according
to the
seriousness of offence, in terms of the maximum
penalty.[407]
The
examination of non-criminal variables indicated that individuals with dependants
were more likely to be sentenced to community
service. Unemployed persons were
also more likely to receive community service rather than a fine.
Overall, Bradshaw’s (1984) results indicated that the
community-based sentencing options existed as a ‘cluster of
sentences’
utilised as alternatives to imprisonment but for different
types of offenders. However, the review did not determine any inherent
value in
the community service sentence:
Just because it [community service] may be used as an alternative to
imprisonment, [this] does not justify its existence unless it
has some value
over the existing
alternatives.[408]
There
were no recommendations on the future of the sentence of community service
presented in the paper.
Recommendations aimed at increasing the
responsiveness of the sentence of community service to and for Maori, were
presented in Jackson’s
(1988) research report The Maori and the
Criminal Justice System A New Perspective: He Whaipaanga Hou Part 2.
Jackson outlined a strategy designed to increase the positive involvement of the
Maori community in the criminal justice
system.[409] One area stipulated
as requiring change was the operation of both the community service and
community care sentences. The goals
of these two sentences and of Maori justice
were seen to be synonymous in that ‘offenders must redress and be seen to
redress
the wrong they have done against the good order of society’.
However:
their [the sentences of community service and care] implementation has often caused considerable anger as Maori people see the intent of the legislation frustrated by bureaucratic and judicial insensitivity.
and
the fact that probation officers frequently reject community service or care proposals simply because they do not satisfy certain administrative criteria of accountability or appropriate supervision clearly needs to be addressed.[410]
The suggested change was that a Maori community liaison adviser should
work in consultation with both the supervising probation officer
and the
designated community group providing the required sponsorship or care for a
Maori offender. With training to inform the
adviser of administrative
requirements, the adviser would then be able to ‘provide input and support
for probation officers
supervising Maori sentenced to either community service
or care’. This role would then result in the ‘melding’
of the
cultural requirements of the Maori group involved with the sentence
administrative
requirements’.[411]
The
issue of whether or not community service was imposed as an alternative to
imprisonment, as discussed previously, was revisited
by Asher and O’Neill
(1990) in their research on the views of correctional practitioners. However
contrary to Bradshaw’s
(1984) conclusions, Asher and O’Neill found
that the general perception was that community service was being imposed as an
alternative to fines and, therefore, on first offenders or those convicted of
minor charges and drink-driving offences. Consequently
community service was
viewed as a “soft option”, inappropriate for “serious”
offenders. Other issues highlighted
in this research included:
• duplication between the sentences of community service and periodic detention in that they were seen to be ‘fulfilling the same purpose and having the same effect’;
• community service being regarded [by some] as a ‘cheap and less effective form of periodic detention rather than as a genuine attempt to involve the community’;
• community service being characterised by inadequate administration. For example, difficulties in identifying sponsors, sponsors hesitant about supervising community service workers in case they were later required to appear as witnesses (for breach action) and ‘poor communication between probation officers and sponsors’. Respondents felt that unless a highly developed administration system was required to ensure appropriate implementation of the sentence, the sentence would become ‘meaningless’;
• a concern about breach procedures because the only penalty available was the imposition of a fine exceeding $500. If community service was being utilised as an alternative to fines, then the breach penalty was considered ‘unworkable’;
• a view held by some of the judiciary and probation officers that the
credibility of community service would be strengthened
if it was possible to
combine this sentence with
supervision.[412]
No
specific recommendations relating to the sentence of community service emerged
from this research[413]. However,
the ongoing need for further evaluation of community-based sanctions in terms of
‘the humanity, costs and effectiveness’
of these options, and the
need to see whether they were being used as alternatives to custody or to fines
and other non-custodial
penalties was
stressed.[414]
In line with
this ‘ongoing need’ for evaluation, the Community Corrections
division of the Department of Justice completed
a comprehensive review of the
sentence of community service (Community Service Review Report, 1993). During
the early 1990s the
community service muster had increased. In 1992 there were
8,177 persons sentenced to community service, an increase of 1,962 from
1991.
The muster in 1993 was expected to reach approximately 12,000 people. The
significant increase in the community service muster
had resulted in a number of
issues being examined by the community service review team.
The first of
these issues was the cost implications of maintaining the current community
service muster and fiscal planning for the
projected muster. The terms of
reference for the review directed the review committee to develop options for an
increase in the
volume of community service sentences (Terms of Reference No. 4,
p 33). The review committee’s interpretation of this term
of reference
was to identify strategies that managed both current and projected volume.
Strategies presented were:
• the identification of alternative ways of dealing with non payment of fines (rather than community service);
• to improve the ‘gatekeeping’ function of the court servicing teams (to control the numbers of persons sentenced to community service);
• to increase throughput (of offender through the sentence) by increasing the number of hours completed per month, by taking court action sooner and by terminating files at completion of hours;
• to avoid the use of bulk placement of offenders into community service placements, which blurs the distinction between periodic detention and community service;
• community service specialisation by probation officers;
• reallocation of resources from areas of less need to the administration of community service;
• computerisation of all community service
records.[415]
Two
recommendations emerged from this list of strategies: that community service
specialisation is desirable, especially in bigger
offices and that community
service records be included in the client offender management system. These
were both approved by the
Community Corrections
Directorate.[416]
The
review reported that there was concern about the introduction of stand-down
[same day] reports[417]. These
reports were seen by the respondents as having contributed to the increase in
the use of community service. Respondents
indicated that the introduction of
same day reports might also have affected the quality of community service
assessments. Additionally,
respondents observed that many of those now being
referred for the preparation of stand-down reports had been convicted of
‘trifling
offences’. This was seen as representing a widening of
the criminal justice net. The review team’s recommendation for
attempting
to curb ‘net-widening’ was that both the Community Corrections and
Courts divisions of the Department of Justice
devise a strategy for alternative
ways of disposing with the non-payment of fines where the original offence was
non-imprisonable.[418]
Two
particular issues for the sponsors of community service emerged in the review.
Firstly, sponsors were apprehensive about the
provision of community service
opportunities for those who had been convicted of serious offences.
Interestingly, it was the potential
for organisational harm [rather than
personal risk] that was discussed as a problem in the Review Report (1993).
Consequently,
the review committee stressed the importance of matching the
correct sponsor with an appropriate
offender[419]. As organisations
are vulnerable to inappropriate matching, the sponsors were reliant on Probation
Officers to know their distinctive
needs and limitations. The recommendation to
address this issue[420] was
subsequently not
approved.[421]
The second
issue regarding the sponsors of community service was the clarification of their
role in providing evidence to the court
in not guilty hearings or disputed
applications for review. The review committee commented that it was generally
accepted that sponsors
were not to be called to give evidence despite
recognition that not all breaches/applications could be successfully prosecuted
in
the absence of the sponsor’s evidence. The Review Committee’s
recommendation to clarify this issue, again, was not
approved.[422]
The
potential of community service to incorporate cultural dimensions also emerged
from the review. The review committee commented
that the holistic approach
provided by ‘some groups, including those identifiably Maori’
provides people ‘with
a lifestyle, not simply an opportunity for
service’. The recommendation was that both the Community Corrections
division and
the Cultural Advisory Unit of the Department of Justice examine the
imposition of community service from the viewpoint of its cultural
sensitivity.
The purpose of this was to ascertain what changes could be made to produce
alternatives consistent with the purpose
of the sentence in diverse cultural
settings. This recommendation was
approved.[423]
Granting
remission of sentence, in terms of the number of hours to be served, on the
grounds of good behaviour and/or quick completion
rates was discussed.
Proponents of remission felt that it would provide both encouragement and an
incentive for those with sentences
of over 100 hours. However the review team
were concerned that net-widening could occur as a result of the judiciary
increasing
the number of community service hours to be served in consideration
of the fact that some of the hours may eventually be remitted.
This would
increase the potential for the sentence to be abused and, subsequently, lose
credibility. The review team concluded
that the arguments against remission
outweighed the potential
benefits.[424]
Legislative
issues raised were: the conditions and limitations on additional sentences of
community service being imposed concurrently
or cumulatively on an offender
already serving a sentence of community service; whether the definition of
‘service’ under
s60 was too narrow; and the need for the courts to
be able to impose community-based sentences rather than imprisonment upon review
of a sentence of community service imposed for non-payment of a fine. In
reference to these issues the community service review
committee recommended:
that the division seek legislative change to s30 of the Criminal Justice Act
1985 in order that the anomalies
of overlapping community service sentences be
addressed; that Community Corrections district managers report to regional
managers
any problems in maintaining sufficient sponsors for the community
service sentence, so that remedial action could be taken (introducing
new
categories of sponsors had been suggested); and that s66(3)(d) of the Criminal
Justice Act 1985 be further considered with a
view to allowing the imposition of
community-based options where appropriate in cases of reviewing a
community-service sentence for
non-payment of a
fine.[425]
Despite the
emergence of the above issues, the key outcome of the review was
‘affirmation’ of the ‘value and popularity’
of the
sentence of community service. The review committee offered the following
statement in conclusion:
The hallmark of community service is that it allows for community involvement
with offenders, the primary relationship being that
between the sponsor and the
offender. Once a placement has been made the probation officer’s role is
a supportive and monitoring
one, with an emphasis on minimal intervention. A
key element of the sentence is its
flexibility.[426]
Community
care/community programme
The sentence of community care was
introduced in the Criminal Justice Act 1985. The Penal Policy Review Committee
(1981) recommended
the establishment of community care with the principal aim
being to place an offender in a community environment (either residential
or
non-residential). Here, offenders would be subject to influences and example
expected to have a beneficial and supportive
effect.[427] (For a full
description of community care refer to section 2.)
MacDonald’s
(1986) examination of the sentence of community care six months after its
introduction found that the new sentence
was imposed in only a small proportion
of charges resulting in conviction and sentencing (2%). In 71% of those charges
resulting
in community care, no other sentence was imposed and just over half of
the charges (54%) were for property offences. 19% of offenders
who received
community care were convicted of at least one offence against the person. The
majority of community care sentences
were non-residential (79%). 64% of all
community care sentences were for a period of six months or
less.[428]
Mäori
offenders (at 2.6% of cases involving Mäori offenders) were twice as likely
to receive a community care sentence as
non-Mäori offenders (at 1.3% of
cases involving non-Mäori
offenders).[429] Approximately
80% of cases that resulted in a sentence of community care involved male
offenders compared to 18% for female offenders
(in 2% of cases the
offender’s gender was unknown). For cases resulting in community care,
61% of the offenders were aged
under 25. However, MacDonald commented that the
age and sex of an offender had little effect on the likelihood of a case
resulting
in a sentence of community care. 1.5% of the 7,404 cases involving
female offenders received community care compared with 1.3% of
the 39,239 cases
involving male offenders. In the cases involving offenders aged from 15 to 39,
from 1.3% to 1.6% resulted in the
sentence of community care, and in the cases
with offenders aged 40 or above, 1% resulted in community
care.[430]
The low use of
community care was again evident in Spier and Luketina’s (1988) review,
which showed that community care was
imposed in only 1% of cases in 1986 and
0.8% of cases in 1987. This decline was seen in relation to most of the offence
categories,
except for good order offences and offences against the
administration of justice for which the imposition of community care slightly
increased between 1986 and 1987. The authors suggested that the low use of
community care reflected either a lack of confidence
in the sentence, or
insufficient resources within either the community or the Department of Justice
to provide and organise community
care programmes for
offenders.[431]
The gender
differential was almost identical as that found by MacDonald (1986), with 81% of
cases in which a sentence of community
service was imposed involving male
offenders and 18% involving female offenders. Females were marginally more
likely to receive
community care than males. The majority of offenders
sentenced to community care were under the age of 25 (58.6%) with the most
common age category being between 15 and 19
years.[432]
Property
offenders and offenders convicted of an offence against the person were the most
likely in 1987 to receive a sentence of
community care with just under 2% of
offenders in each of these categories given this sentence. Of those sentenced
to community
care, more than 40% were property offenders and 18% were offenders
against the person. Mäori offenders (at 1.8%) were almost
twice as likely
to receive a sentence of community care than caucasian offenders (at 1.0%).
However, despite the high number of Mäori
receiving community care a very
small number of community care sentences were recorded as Maatua Whangai
placements (66 out of 1861
community care sentences). The majority of community
care programmes were
non-residential.[433]
Spier
and Luketina (1988) explored the issue of what sentence would have been imposed
if community care had not been introduced.
Their analysis indicated that the
introduction of community care did not result in any decrease in the proportion
of offenders receiving
any other sentence except for
fines.[434] No evidence,
therefore, suggested that community care was imposed as an alternative to a
custodial sentence or to any other community-based
sentence. Rather, if
community care was considered a more severe penalty than a fine, then the
introduction of community care resulted
in an increase in the severity of the
sentences imposed on offenders who would have otherwise received a monetary
penalty.[435]
The
suggestion that the sentence of community care was being used in a way not
originally intended (i.e. as an alternative to fines
rather than as an
alternative to imprisonment) arose again in Asher and O’Neill’s
(1990) research. Although their respondents
expressed support for the sentence
of community care, there was recognition that the sentence was imposed
infrequently and the view
that when it was imposed, it was as an alternative to
fines. Additionally, respondents felt that community care had involved
predominately
‘structured treatment regimes’ rather than the
placement of an offender into the care of an individual, whanau or local
group.[436]
A legislative
fault was also cited as limiting the development of the sentence of community
care. The six-month time limit imposed
on the residential component of a
sentence was seen as a major drawback by agencies that provided long-term
residential treatment
programmes. This limitation could have resulted in
offenders leaving the programme at the end of six months, as they may have
adopted
the attitude that they had “done their lag”. Other concerns
expressed regarding the sentence of community care were
confusion over the role
played by the probation service in the monitoring of community care, especially
when breaches were to go
to court (because breach behaviour does not constitute
an offence) and the uncertain availability of community groups or individuals
willing to provide the required care for this sentence to operate
effectively.[437]
Ongoing concern over both the limited development and low imposition of the sentence of community care resulted in the convening of a community care working party by the Department of Justice (Probation Division) in 1991. The terms of reference for the working party were as follows: to make recommendations on how community care could be utilised to a greater extent; to complete a reviewed set of manual instructions on the administration of community care[438]; and to investigate and make recommendations on changing the name of “community care”.[439] A number of issues were covered and various recommendations presented.[440] Three of these issues are discussed below as examples of the focus of the working party.
One recommendation to encourage increased use of community care was an
improved focus on the effective marketing of the sentence.
Effective marketing
was seen as the primary mechanism through which any increase in the use of
community care would occur (the proposed
name change, see below, was to be the
focus for the marketing initiatives). Four target groups for direct marketing
were identified:
probation staff, the community, the judiciary, and offenders.
The various marketing initiatives included presentations to probation
staff at
district level, an information pamphlet for sponsors, media releases, convening
district hui to disseminate information
to potential sponsors, the encouragement
of sponsors to provide assistance to the judiciary through both being available
in the court
and inviting the judiciary to make direct contact with them, and
the location of posters in court waiting rooms to encourage offenders
to request
placement on community
care.[441]
The
incorporation of a module on “Whanau, Hapu, Iwi Development” into
training for probation staff was also recommended
in order to encourage
increased use of community care. The working party was concerned that the
original intention of community
care had not been translated into action. This
‘original intention’ was the strengthening of whanau, hapu and iwi
links,
and the placement of offenders within tribal networks rather than within
institutional structures. The training module would involve
training for
probation staff in the following areas:
This would encourage
reinforcement of the ‘original intention’ of community care and
increased utilization of the sentence
of community care for Maori and Pacific
offenders. [442]
As already
mentioned, the Working Party examined the appropriateness of changing the name
of the sentence of community care. The
responses obtained from the consultative
phase regarding a potential name change fell into three categories: those in
favour of a
change; those in favour of the status quo; and a group who viewed
change as an exercise in semantics with little likelihood of overall
benefit as
a result. However, the working party did decide that a name change was
appropriate on the following grounds:
The primary factor influencing our decision was the need to move from a
concept to a sentence. The general philosophy of “community
care”
has become a well utilised concept in a number of fields such as health, aged
care and signifies movement from within
institutional state operated structures,
to care within the community. While the desirability of such devolution is a
feature of
the current sentence (as reflected in the policy objectives of the
Division) and will remain so, it is felt that the name should
reflect in some
way the specific nature and purpose of the sentence, rather than the philosophy
which underpins
it.[443]
The working party
was also conscious of the requirement of the Criminal Justice Act 1985 for the
offender to undertake a “programme”
provided by a community sponsor.
Both this original requirement and the stated need for an increase in effective
marketing (outlined
above) were supporting factors for the proposed name change.
The final recommendation therefore, was for the sentence of “community
care” to be re-named “community programme
order”.[444] This
recommendation was implemented in the Criminal Justice Amendment Act
1993.
Despite the recommendations of the Community Care Working Group the
sentence of community programme continues to be infrequently imposed.
Recent
Ministry of Justice statistics show that the imposition of community programme
has never exceeded 1.6% of the total imprisonable
cases convicted, with a
decrease in the number of cases that resulted in a community programme between
1996 (780) and 1998 (431).
Mäori offenders receive the sentence of
community programmes more frequently than non-Mäori. In 1998 for example,
community
programme was imposed on 215 Mäori and 47 non-Mäori.
However, despite a higher proportion of Mäori than non-Mäori
receiving
the community programme sentence, this sentence was imposed in only 0.9% of all
imprisonable non-traffic cases involving
Mäori in
1998.[445]
The Community
Probation Service (CPS) of the Department of Corrections is currently carrying
out research into the Community Programme
sentence to determine the factors
contributing to the decline in the numbers of offenders receiving the sentence
and to identify
those factors upon which CPS can have an effect. It is intended
that the review will shed light on the feasibility of increasing
the usage of
the Community Programme sentence and the strategies that would be needed to do
this. Some preliminary comments from
previous findings and from information
collected so far are as
follows.[446]
The main
reason behind the low usage of the sentence seems to be directly related to the
low number of recommendations for the sentence
from Probation Officers to the
judiciary. This is because:
There appear to be three, broad, interrelated areas affecting the number of recommendations. The first is resources (including funding, time, skills). There may be a lack of resources for sponsors to provide appropriate programmes. There may be a lack of resources for Probation Officers to create and maintain community links and to assist in the support and development of appropriate programmes, make assessments and match needs with appropriate interventions. Also, existing resources may not be being applied as effectively as possible.
The second area is conflicting perceptions of the sentence. Between judges, CPS, CPS staff and sponsors, and within these groups themselves, there appears to be little shared understanding and acceptance of what the essentials of a Community Programme order are. Due to this and the different expectations that result, it is not as readily recommended as other sentences.
Thirdly, there is an issue regarding the availability of sponsors. The potential pool of sponsors for a Community Programme sentence is immense, ranging from all types of individuals to established community organisations and government agencies. However, resource issues and the constraints arising from the conflicting perceptions of the sentence have the effect of limiting the potential pool of sponsors available in the community. The low number of recommendations of the sentence may be a reflection of the number of sponsors available under the current conditions. With the CPS establishment of clearly defined minimum standards for community-based programmes there may be an increasing gap between what CPS now requires of a programme and sponsor, and the current availability of expertise and focus in the community.
Historically, and
currently, the usage of the community programme sentence has been low and the
reasons behind this are complex and
widespread. It is however doubtful that the
potential of the sentence has ever been fully explored. Despite the problems
outlined,
when it is used the community programme sentence can work very well,
and is particularly suited to various groups e.g. young offenders,
Mäori,
and those for whom prison seems likely. In addition, the costs of
administration are much less than for the other community-based
sentences
(except community
service).
Supervision
MacDonald
(1986) in her review of the sentence of supervision six months after its
introduction, found that supervision was imposed
in 2,182 or 4.3% of criminal
cases (involving 5,889 charges). Supervision was less likely to be imposed
under the new regime than
probation was previously, as 7% of charges resulted in
a supervision sentence compared to 12% of charges that had received probation
in
the period 1 October 1984 to 31 March 1985. The majority of supervision
sentences were for offences against property (71%) with
offences against the
person resulting in 8% of sentences
imposed[447]. For 44% of charges
incurring supervision, this was the only sentence. Additional sentences imposed
in conjunction with supervision
were periodic detention (37% of the charges),
reparation (11%), driving disqualification (11%) and community service
(1%).[448]
In cases which resulted in a sentence of supervision, 19% of the offenders were female and 80% were male (gender was unknown for 1% of the cases). Females were more likely to be given a sentence of supervision (1 in every 18 cases involving females) than males (1 in every 22 cases involving male offenders). Younger offenders were also more likely to be involved in cases that resulted in at least one sentence of supervision. For offenders aged less than 20 years, 1 in 14 were involved in cases that received supervision. One in 22 of offenders aged between 20 and 29 years and 1 in 37 of offenders aged 30 years and above received a sentence of supervision. Of the cases resulting in supervision, 39% involved Maori offenders.[449] Both Maori and non-Maori offenders had the same probability (1 in every 14 cases) of incurring a sentence of supervision.[450]
The
decrease in the frequency of the imposition of supervision (compared to
probation) was again highlighted in Spier and Luketina’s
(1988) sentencing
review. In each of the years 1983 to 1985 (up to 1 October), 10% of convictions
resulted in the offender being
placed on probation (exclusive of convictions
resulting in probation plus imprisonment which was prohibited as a sentencing
option
under the new Act), whereas in 1986 the figure for supervision was 8% and
in 1987, 9%.[451] Spier and
Luketina explained the decrease in the imposition of supervision by reference to
the following changes made by the Criminal
Justice Act 1985:
Spier
and Luketina (1988) argued that the last two amendments listed above were the
most influential.[452] This was
because the major contributing factor to the lower use of supervision compared
to probation was the less frequent use of
supervision in conjunction with
periodic detention than was the case with probation. In the 3 years before the
amendments periodic
detention was combined with supervision in between 30% and
33.5% of all cases resulting in periodic detention. Following 1985, the
concurrent sentences of periodic detention and supervision were imposed in only
15.5% and 16% of cases resulting in periodic detention
in 1986 and 1987
respectively. The biggest drop was in the concurrent use of periodic detention
and probation/supervision for property
offences. At the same time, the number
of cases resulting in periodic detention plus compensation/reparation increased
from 377
in 1985 (or 12.8% of cases resulting in periodic detention) to 1146 (or
23.8% of such cases) in
1987.[453]
Despite the
lower use of supervision compared to probation, the proportion of all cases
which resulted in supervision as the principal sentence (which excluded
sentences of supervision given in conjunction with other community-based
sentences or with imprisonment) was slightly
greater than that for probation.
In 1984 2.7% of all cases resulted in the imposition of probation as the
principal sentence. By
1987, 3.2% of all cases resulted in supervision as the
principal sentence.[454]
In
1987 supervision was imposed predominately for offences against property (49.5%
of total supervision cases). However, only 13.2%
of total offences against
property processed by the court in 1987 resulted in the sentence of supervision.
The second largest offence
category among cases which received supervision was
offences against the person (17%), representing 11% of the total cases involving
offences against the person. The most frequent sentence length imposed was
between 9 months and 1 year, with 58% of offenders receiving
a sentence of this
length.[455]
The
demographics of those sentenced to supervision were similar to those found in
MacDonald’s 1986 review. Female offenders
(at 7.1%) continued to be more
likely to receive supervision than males (at 4.6%). Likewise, young offenders
continued to be more
likely to receive supervision, with more than two-thirds of
offenders who received supervision being under the age of 25 years.
In 40% of
the cases in which supervision was imposed, the offender was between the ages of
15 and 19 years.[456] The ethnic
breakdown for those who received supervision was as follows: Caucasian
offenders, 53%; Maori offenders, 41%; Pacific
Peoples, 5%; Other 0.6%; Unknown,
0.6%. There was little difference in the likelihood of Maori and Caucasian
offenders receiving
a sentence of supervision, with 7.9% of cases involving
Caucasian offenders and 8.6% of cases involving Maori offenders resulting
in
this sentence.[457]
The
seriousness of offences resulting in probation/supervision (as the most severe
sentence imposed) was examined by Spier, Luketina
& Kettles (1991) in their
report Changes in the Seriousness of Offending and in the Pattern of
Sentencing: 1979 to 1988[458].
Their key finding was that offenders were, on average, sentenced to supervision
for more serious offences than was previously the
case for probation. To
illustrate, the average offence seriousness in 1984 for cases which resulted in
probation or supervision
was 31.2, whereas in 1987 the figure was 36.1. Overall
the average offence seriousness increased by 22% between 1979 and 1988.
The
actual number of offenders sentenced to supervision for offences with
seriousness scores of greater than 100 increased by approximately
87% between
1979 and 1988, although numbers were relatively
small.[459]
The majority of
offenders sentenced to supervision were convicted of offences with seriousness
scores between 1 and 100. Every seriousness
category experienced a decrease in
the proportion of convictions resulting in supervision between 1979 and 1988.
The decrease was
particularly rapid between 1979 and 1981. However, after the
introduction of the Criminal Justice Act 1985 there was a slight increase
in the
proportion of convictions resulting in supervision as the principal
sentence.[460]
Asher and
O’Neill’s (1990) research identified a number of concerns expressed
by probation officers regarding the sentence
of supervision. This was despite
the probation officers’ view that supervision was the most important
sentence administered
by the Probation Division because of its flexibility and
the discretion given to probation officers regarding the type of assistance
they
could provide. The concerns were:
• the status and effectiveness of the sentence of supervision were
being undermined by ‘case-loads, report writing, administrative
duties and
other responsibilities of probation officers’. This was seen to threaten
the adequate supervision of offenders
and therefore the credibility of the
sentence;
• the inability to combine supervision with community service or to
make community work a condition of supervision. This posed
practical
difficulties for probation officers, especially in rural areas where periodic
detention was unavailable. It may also have
resulted in lost opportunities to
address the various difficulties in offenders’ lives (e.g. alcohol or drug
use) when judges
sentenced them to community
service;[461]
• many probation officers felt that the lack of the option of
imprisonment upon breach of supervision weakened the credibility
of
supervision;
• a perception that the judiciary did not regard supervision as a
punitive measure.[462]
A
slightly different perspective was obtained from community sponsors. Sponsors
expressed the view that supervision with special
conditions attached was
preferable to community care sentences because probation officers retained
overall responsibility for offender
compliance with the
sentence.[463]
Asher and
Norris’s (1991) examination of reconviction rates in Recidivism After
Custodial and Community Based Sentences noted that the sentence of
supervision had an estimated recidivism rate of 41.6% to 51.4% (with 95%
confidence). This figure was
drawn from a sample of 400 offenders sentenced to
supervision in 1989. Reconviction was defined as those who received an
additional
conviction within 12 months of the original sentencing date. The
actual proportion reconvicted was
46.5%.[464]
BIBLIOGRAPHY
Asher, B.
and Norris, M. (1991). Recidivism After Custodial and Community Based
Sentences. Policy and Research Division: Department of
Justice.
Asher, B. and O’Neill, R. (1990). Community
Involvement With Offenders. A Discussion Paper. Policy and Research
Division: Department of Justice.
Ashworth, A. (1992). Sentencing and Criminal Justice, Weidenfield and Nicolson, London.
Berrett, B. (1993). Internal Audit
Report. Management of Periodic Detention Centres. Internal Audit and
Evaluation Unit: Department of Justice.
Berrett, B. (1993). Internal
Audit Report. Project Management in Periodic Detention Centres. Internal
Audit and Evaluation Unit: Department of Justice.
Biles, D. (1996).
“Custody, Crime and the Community”, Current Issues in Criminal
Justice, Journal of the Institute of Criminology, University of Sydney,
Faculty of Law, Volume 7, Number 3, March 1996.
Bottoms, A. E. (1987).
“Limiting Prison Use: Experience in England and Wales”, The
Howard Journal of Criminal Justice, Volume 26, No 3, August
1987.
Bradshaw, J. (1984). Community Service Orders in Otago and
Southland: A Survey. Department of Justice (Draft copy).
Byrne, J.
M. (1990). “The Future of Intensive Probation Supervision and the New
Intermediate Sanctions”, Crime and Delinquency, Volume 36, No 1,
January 1990.
Canadian Sentencing Commission (1987). Sentencing
Reform: A Canadian Approach, Canadian Government Publishing Centre,
Ottawa.
Chan, J. and Zdenkowski, G. (1986). “Just
Alternatives-Part 1 and Part 2”, in Australian and New Zealand Journal
of Criminology, volume 19 (June 1986), pp67-90 and (September 1986),
pp155-62.
Cunningham, A. H. and Griffiths, C. T. (1997). Canadian
Justice, A Primer, Harcourt Brace, Canada.
Doob, A. N. (1990).
“Community sanctions and imprisonment: Hoping for a miracle but not
bothering even to pray for it”,
Canadian Journal Of Criminology,
Volume 32, No 3, July 1990.
Hall, G. G. (1999). Hall’s
Sentencing (updated to 12 January 1999), Butterworths,
Wellington.
Hall, G. & Asher, B. (1991). Community Development
and the Probation Service. Policy and Research Division: Department of
Justice.
Home Office (1988). Punishment, Custody and the
Community, Her Majesty’s Stationery Office, London.
Home Office
(1995). Strengthening Punishment in the Community, Her Majesty’s
Stationery Office, London.
Home Office (1996). Protecting the
Public, Her Majesty’s Stationery Office, London.
Hylton, J. M.
(1982). “Rhetoric and Reality: A Critical Appraisal of Community
Corrections Programmes”, Crime and Delinquency, July 1982,
pp341-73.
Inciardi, James A. (1996). Criminal Justice, (5th
edition), Fort Worth: Harcourt Brace College Publishers.
Ireland Law
Reform Commission (1996). Report on Sentencing.
Jackson, M.
(1988). The Maori and the Criminal Justice System A New Perspective: He
Whaipaanga Hou Part 2. Policy and Research Division: Department of
Justice.
John Howard Society of Canada (1992). The Use of
Intermediate Sanctions in Canada, Response to the Department of Justice
Consultation Document Regarding Intermediate Sanctions, Publication of the
John Howard Society of Alberta, April 1992.
Judicial Commission of New
South Wales (1998). Periodic Detention Revisited, monograph series no 18
1998.
Justice, Department of (1973). Periodic Detention in New
Zealand, Research Series No 4, Research Section, Justice Department, New
Zealand.
Justice, Department of (1991). Report of the Review of
Community Care Working Party. Probation Division.
Justice,
Department of (1992). Review of Periodic Detention
Report.
Justice, Department of (1992). Imprisonment as
“The Last Resort” The New Zealand Experience.
Justice,
Department of (1993). Community Service Review Report, Community
Corrections Division.
Kelly, D. (1993). Criminal Sentences,
Edinburgh.
Lash, B. (1998). Census of Prison Inmates 1997,
Ministry of Justice: Wellington.
Lee, A., (1981). Community Service
Orders. Penal Policy Review Committee Background Papers Vol. 1 Study Series
No.7. Planning and Development Division: Department of Justice.
Lee, A.
and Braybrook, B. (1992). Options for Reducing the Prison Muster.
Policy and Research Division: Department of Justice:
Wellington.
Leibrich, J. (1991). A Study of The Probation
Division’s Perception of its Role in Reducing Reoffending. Department
of Justice; Wellington.
Leibrich, J. (1984). “Use of Community
Service Orders: Offenders, Offences and Sentence” in Community Service
Orders in New Zealand, Planning and Development Division: Department of
Justice: Wellington.
Leibrich, J. (1984). “Criminal History and Reconvictions of two
Sentence Groups: Community Service and Non-Residential Periodic
Detention” in Community Service Orders in New Zealand,
Planning and Development Division: Department of Justice: Wellington.
Leibrich, J., Galaway, B. and Underhill, Y. (1984). “Survey of
People Connected with the Community Service Sentence”
in Community
Service Orders in New Zealand, Planning and Development Division: Department
of Justice: Wellington.
Lloyd, C., Mair, G. and Hough, M. (1994).
Explaining Reconviction rates: A Critical Analysis, Home Office Research
and Statistics Department, Research Findings No 12.
Maguire, M., Morgan,
R. and Reiner R. (eds.) (1997). The Oxford Handbook of Criminology
(Second Edition), Clarendon Press, Oxford.
McDonald, C., (1986).
Sentencing Under the Criminal Justice Act 1985 The First Six Months,
Study Series No. 19. Policy and Research Division: Department of Justice.
Ministry of Justice (1997). Sentencing Policy and Guidance. A
Discussion Paper, Ministry of Justice: Wellington.
Ministry of
Justice (1998). The Use of Imprisonment in New Zealand, Ministry of
Justice unpublished paper, available on
http://www.justice.govt.nz/pubs/reports/index.html
Morris, N. and Tonry,
M. (1990). Between Prison and Probation, Oxford University
Press.
Mortimer, E. and May, C. (1998). Electronic monitoring of
curfew orders: the second year of the trials, Home Office Research and
Statistics Directorate Research Findings No 66, Home Office: London.
New
Zealand Parliamentary Debates, 1962, 1966, 1979, 1983.
Norris, M. &
MacPherson, S. (1990). Offending in New Zealand: Trends and International
Comparisons. Policy and Research Division: Department of Justice.
Penal Affairs Consortium (1995). ‘Strengthening Punishment in
the Community’, Comments by the Penal Affairs Consortium on the Government
Green Paper, 169 Clapham Road, London.
Penal Policy Review Committee (1982). Report of the Penal Policy
Review Committee 1981, Government Printer: Wellington.
Petersen, R. D. and Palumbo, D. J. (1997). “The Social
Construction of Intermediate Punishments”, The Prison Journal,
Volume 77, No 1, March 1997.
Petersilia, J. (1997)
“Probation”, Crime and Justice. A Review of Research, Tonry,
M. (ed.). Volume 22, 1997. Chicago and London: University of Chicago Press,
pp.149-200.
Petersilia, J. and Deschenes, E. P. (1994).
“Perceptions of Punishment: Inmates and Staff Rank the Severity of Prison
Versus
Intermediate Sanctions”, The Prison Journal, Volume 74, No
3, September 1994.
Petersilia, J. and Turner, S. (1993) “Intensive
Probation and Parole”, Crime and Justice. A Review of Research
(ed.) Michael Tonry. Volume 17, 1993. Chicago and London: University of
Chicago Press, pp.281-335.
Pratt, J. (1987). “Dilemmas of the
Alternative to Custody Concept: Implications for New Zealand Penal Policy in the
Light of
International Evidence and Experience”, Australian and New
Zealand Journal of Criminology, Volume 20, 1987, pp148-62.
Rex, S.
(1998). “Community Penalties in England and Wales,
1967–1998”, Overcrowded Times, Volume 9, No 6, December
1998.
Spier, P. (1998). Conviction and Sentencing of Offenders in New
Zealand: 1988 to 1997, Ministry of Justice: Wellington.
Spier, P. and
Luketina, F. (1988). The Impact on Sentencing of the Criminal Justice Act
1985. Policy and Research Division: Department of Justice.
Spier, P., Luketina, F. and Kettles, S. (1991). Changes in the
Seriousness of Offending and in the Pattern of Sentencing: 1979 to 1988.
Policy and Research Division: Department of Justice.
Thorburn, P.,
(1993?). Community Corrections Case Study: Doing More with Less Effective
Resource Utilisation, Community Corrections Division: Department for
Justice. Completed for the Institute for International Research.
Tonry,
M. (1996). Sentencing Matters, Oxford University Press.
Tonry, M.
(1998). “Intermediate Sanctions in Sentencing Guidelines”, Crime
and Justice. A Review of Research, vol. 23, 1998, Tonry, M.
(ed.).
Tonry, M. (ed.) (1998). The Handbook of Crime and
Punishment, Oxford University Press.
Tonry, M. and Hamilton, K.
(eds.) (1995). Intermediate Sanctions in Overcrowded Times, Northeastern
University Press, Boston.
Tonry M. and Hatlestad, K. (eds.) (1997).
Sentencing Reform in Overcrowded Times, A Comparative Perspective, Oxford
University Press.
Triggs, S. (1988). From Crime to Sentence: Trends
in Criminal Justice, 1986 to 1996, Ministry of Justice, New
Zealand.
Triggs, S. (1999). Sentencing in New Zealand: a statistical
analysis, Ministry of Justice, New Zealand.
United States Bureau of
Justice Statistics, “Nation’s Probation and Parole Population
reached new high last year”.
16 August 1998. (Press release with tables,
reproduced at http://www.ojp.usdoj.gov/bjs/.)
Vass, Anthony A. (1996).
“Community Penalties: The Politics of Punishment” in Working with
Offenders, Issues, Contexts and Outcomes, ed. Tim May and Anthony A Vass,
Sage Publications.
Von Hirsch, A. (1990). “The Ethics of
Community-Based Sanctions”, Crime and Delinquency, Volume 36 No 1,
January 1990.
Von Hirsch, A. and Ashworth, A. (eds) (1998).
Principled Sentencing, Readings on Theory and Policy, Hart Publishing,
Oxford.
Walker, N. and Padfield, N. (1996). Sentencing: Theory, Law
and Practice, (Second Edition), Butterworths.
Webb, P. M. (1982).
A History of Custodial and Related Penalties in New Zealand, Government
Printer, Wellington.
Whitney, L. & Sullivan, K (1989). Monitoring
the Innovations of the Criminal Justice Act (1985). Policy and Research
Division: Department of Justice, Wellington.
Worrall, A. (1997).
Punishment in the Community: The Future of Criminal Justice, Longman,
London and New York.
[1] The Use of Imprisonment in New Zealand, (1998), available on Ministry of Justice website address: http://www.justice.govt.nz/pubs/reports/index.html
[2] This was the term used by Morris and Tonry (1990) in Between Prison and Probation. The terminology in that country has changed over the years. In the 1970s they were called community corrections, the assumption behind this language being that they were meant for non-violent offenders who could be rehabilitated through counselling and training. The rehabilitative assumptions were altered in the 1980s and they were viewed as alternatives to incarceration with more emphasis on supervision and monitoring (Petersen and Palumbo, 1997, p83).
[3] Maguire,
Morgan and Reiner, 1997,
pp1198-9.
[4] Webb, 1982,
pp159-82.
[5] Morris & Tonry
1990, pp23-4; Worrall 1997,
p27.
[6] Ashworth 1992,
pp214-5.
[7] Ibid,
pp208-9.
[8] See for example the
Home Office, 1988, para 1.8.
[9]
Petersen and Palumbo, 1997,
p82.
[10] Pratt, 1987, p149;
Tonry 1996, p101.
[11] Tonry,
1996, p101.
[12] Penal Policy
Review Committee, 1982,
pp37-43.
[13] See for example
Canadian Sentencing Commission, 1987, p359; Penal Policy Review Committee, 1982,
p43; Harlow 1995, p72.
[14] Von
Hirsch, 1990, p163.
[15] Von
Hirsch, 1990, p165; Petersilia, 1994,
pp309-10.
[16] Morris and Tonry,
1990, p90; Tonry, “Interchangeability, Desert Limits and Equivalence of
Function” in von Hirsch and
Ashworth (ed), 1998,
pp291-3.
[17] Quoted in John
Howard Society, 1992, p6.
[18]
Doob, 1990, p426.
[19] Morris and
Tonry 1990, p19; Wasik and von Hirsch, “Non-custodial Penalties and the
Principle of Proportionality”, in
von Hirsch & Ashworth (ed) 1998,
pp286-7.
[20] Canadian Sentencing
Commission, 1987, p347; Worrall 1997,
p2.
[21] Ibid, p349; Biles 1996,
p331.
[22] Ibid, p365; Doob,
1990, p426.
[23] Although not
strictly speaking a community-based sentence, home detention, to the extent that
it may involve serving almost all of
a term of imprisonment in the community, is
very close to being an addition to this
number.
[24] A period of
probation could also be imposed to follow release from a sentence of
imprisonment of less than 1 year and for sentences
of 4 years or more. In
general, in the case of finite sentences of imprisonment of more than one year,
the offender on release was
on probation for the unexpired term of the
sentence.
[25] A prohibition
order prohibited the supply of liquor to a particular individual by licensed
premises. Under the Sale of Liquor Act
1962 there was provision for a person to
apply in writing to a court for the issue of a prohibition order against himself
for any
period up to one
year.
[26] Webb, 1982,
p182.
[27] The Amendment Act did
stipulate that the reporting times and attendance periods were to “avoid
interference, so far as practicable,
with [the detainee’s] attendance at
any educational institution or his work or his genuine religious
observances” (s16(6)).
[28]
Department of Justice, 1973,
p7.
[29] Under the original 1954
Criminal Justice Act an offender could be sentenced to imprisonment or, if aged
under 21 and not less than
17 (or between 15 and 16 in special circumstances),
to a term of borstal training in a borstal institution for up to 3 years
(reduced
to 2 years in 1962). Borstal training was a semi-indeterminate
sentence with release being determined by a Borstal Parole Board
within the
maximum period of 2 years. The institutions (and the sentence) were named after
the place in England where such an institution
was first established. The
emphasis was on reformative training. The non-custodial sentences at that time
were probation and a
fine. In 1961 the sentence of detention centre training
for 16 to 21 year old males became available. It was a sentence involving
detention in an institution for a term of 3 months (which could be remitted by
up to 1 month) and was to provide a “short,
sharp shock” through a
programme of military discipline. Borstal training and detention in a detention
centre were abolished
in 1975. Probation existed until 1985. See Webb, 1982,
pp48-57.
[30] NZPD, vol. 331,
1962 p1848.
[31] Ibid,
p1848.
[32] The Minister of
Justice stated that there were two types of adult offenders in particular for
whom periodic detention would be suitable,
which justified the raising of the
age. These were maintenance defaulters, the majority of whom were
“inadequate or feckless
rather than deliberate evaders of their
obligations”, and some categories of drunken drivers “who are not in
any way
criminals in the normal sense of that word, yet who undoubtedly need
very firm measures against them.” (NZPD vol. 348, 1966,
p2687)
[33] 1975 was also the
year in which an amendment to the Criminal Justice Act 1954 abolished both the
sentence of detention in a detention
centre and borstal training. The Amendment
Act also included provisions which introduced corrective training, although
these did
not come into force until 1981.
[34] Webb,1982,
p189.
[35] Ibid, p190.
[36] Penal Policy Review Committee, p111. The committee also recommended that the standard practice of periodic detention centres include not only attendance to work for an 8 hour day but also one evening a week in other activities which may benefit offenders (p110). This was not implemented.
[37]
Hall D/503.
[38] A programme
based on a cognitive behavioural therapy model which teaches offenders
problem-solving skills.
[39]
Community Probation Business Plan, July 1 1998–June 30 1999,
p12.
[40] NZPD, vol. 427, 1979,
p4152.
[41] Since there were many
smaller towns without the facilities to allow a sentence of periodic detention
to be imposed, a practice had
developed in the courts of placing an offender in
such places on probation and ordering, as one of the probation conditions, that
the offender do a certain number of hours of community work on some project
being carried out by a social service group or organisation.
In 1980 around 600
sentences of probation included such a condition. Often the sentence of
probation was used simply as a mechanism
to impose some kind of community
service, with the sentence then being cancelled once the required number of
hours of community work
had been completed (Report of the Department of Justice
to the Statutes Revision Committee on the Criminal Justice Amendment Bill
(No
2), 29/4/80). The 1980 legislation creating community service also expressly
excluded as a condition of probation the performance
of any service that the
probationer could have been required to perform if he had been sentenced to
community service.
[42] NZPD, op
cit, p4153. At the committee stage of the legislation the main discussion was
over whether there was sufficient difference
between periodic detention and
community service to justify the introduction of the latter as a new sentence.
The question was raised
whether a preferred alternative would be to amend the
existing periodic detention scheme. To further emphasise that there was a
distinction the statutes revision committee recommended changes to the original
Bill so that the consent of the offender would be
required and the minimum
sentence time would be reduced from 20 to 8 hours to more clearly define the
sentence as being at the lighter
end of the sentencing scale. (The minimum was
subsequently increased to 20 hours in the Criminal Justice Act
1985.)
[43] Ibid,
p4155.
[44] Information provided
by Department of
Corrections.
[45] Penal Policy
Review Committee, p112.
[46] Hall
D/469.
[47] Penal Policy Review
Committee, p10.
[48] Ibid, paras
319-323.
[49] Ibid, paras 93,120,
174.
[50] For example, the
recommendations that parole be restricted to indeterminate sentences and that
preventive detention be
abolished.
[51] NZPD, vol. 455,
1983, p4791.
[52] Ibid,
p4792.
[53] Discussed in Ministry
of Justice,1997, pp28-33.
[54]
Report of Department of Justice to Statutes Revision Committee on Criminal
Justice Bill (No 1) 1983, 1 June 1984,
p18.
[55] Ibid, pp19-20; and
Report of Department of Justice to Statutes Revision Committee on Criminal
Justice Bill (No 2), 22 April
1985.
[56] Adams on Criminal Law,
ch 3.2.03..
[57] Hall
D/553.
[58] Guidelines for
Probation Officers, Department of Justice, (undated),
p4.
[59] The Penal Policy Review
Committee had recommended the same penalties that applied to breach of probation
should apply to breach of
supervision (para
319).
[60] These were Mäori
community structures who received funding from the Departments of Mäori
Affairs, Social Welfare, and Justice
to provide alternatives to the placement of
young Mäori in social welfare institutions and
prisons.
[61] Report of
Department of Justice to Statutes Revision Committee on Criminal Justice Bill
(No 2) 1984, 22/4/ 85, p2.
[62]
Information provided by Department of
Corrections.
[63] NZPD, vol. 455,
1983, p4793.
[64] Hall,
D/593.
[65] Hall,
D/593.
[66] Spier, 1998,
p32.
[67] Ibid,
pp95-8.
[68] This is a
restriction that applies where the court may wish to impose a combination for a
single offence and where the offender appears
for sentence at one time on
several different charges. Some judges have interpreted the restriction as not
including different sentencing
sessions for different offences so that some
offenders do end up serving two community-based sentences (other than periodic
detention
and supervision) concurrently (such as community service and
supervision).
[69] Hall
D/307-1.
[70] There is Cabinet
approval for a draft bill, a Criminal Justice Amendment Bill (No 7) 1999, which
proposes to change the current suspended
sentences regime, so that there is no
minimum term of imprisonment that can be suspended (the maximum of 2 years
remains), and no
provision to impose any community-based sentence concurrently
with a suspended sentence.
[71]
Under s88 of the Summary Proceedings Act these are the only 2 community-based
sentences that can be imposed on a fines
defaulter.
[72] Called Community
Probation Service from 1 July
1998.
[73] Penal Policy Review
Committee, para 100, p36.
[74]
Ibid, para 317, p118.
[75] This
does not necessarily mean that there is no clarity or consistency on the part of
judges as to what sentences are appropriate
in which
circumstances.
[76] Lee A., 1981,
Community Service Orders, Penal Policy Review Committee Background Papers
Vol. 1 Study Series No 7, Planning and Development Division: Department of
Justice.
[77] Ibid,
p5.
[78] Legislation allowed for
between 8 and 200 hours (amended in 1985 to between 20 and 200
hours).
[79] Lee, 1981,
p4.
[80] Ibid,
pp5-6.
[81] Leibrich, 1984,
Use of Community Service Orders: Offenders, Offences and Sentence.
Methodology consisted of a random sample selected from the population of those
sentenced to community service during the first
21 months of its existence (1
February 1981 to 31 October 1982). Data was drawn from the Wanganui Computer
database.
[82] Seriousness was
determined by a scale that contained seriousness ratings attached to every
police-classified offence. These ratings
were adopted from a small pilot study
by the Police Department which attempted to establish the relative
importance/seriousness of
all offences for urgency of police clearance. The
minimum possible seriousness rating was 13 (a vehicle certification offence);
the maximum possible was 98 (murder).
[83] Leibrich, 1984, p19. The
statistical significance was minimal within the range
possible.
[84] Ibid, pp10-12 and
p22. In terms of the imposition of co-sentences, women were given additional
probation proportionately more often
than men, and more of them were given
longer periods of
supervision.
[85] Leibrich,
Galaway and Underhill, Survey of People Connected with the Community Service
Sentence, 1984, p156.
[86]
Ibid, p151-2.
[87] Leibrich,
1984, Criminal history and reconvictions of two sentence groups: Community
Service and Non-Residential Periodic Detention, in Leibrich, Galaway and
Underhill (1984)
[88] Ibid,
p193.
[89] Ibid, p204. Also
discussed in section 5 of this
report.
[90] Bradshaw, J.
(1984) Community service orders in Otago and Southland: a Survey. Survey
method consisted of the collection and analysis of probation reports completed
between 1.2.81 and end of January 1982 (n =
473).
[91] The low number of
women in the sample may limit Bradshaw’s conclusions. Nine women in 1979
and 1980 had received a custodial
sentence. In 1981 six women received
community service while no female offender received a custodial sentence.
[92] Bradshaw, 1984,
pp21-2.
[93] Ibid,
p21.
[94] Ibid,
p22.
[95] McDonald, C. (1986)
Sentencing Under the Criminal Justice Act 1985, The First Six Months,
Study Series 19, 1986.
[96]
McDonald, 1986, pp6-10.
[97]
Ibid, pp14-15.
[98] Ibid,
p13.
[99] Ibid,
pp6-7.
[100] Traffic offences
and drug offences accounted for 8% and 5% of the supervision sentences imposed
respectively (p 20).
[101]
McDonald, 1986, pp7
and19-21.
[102] Spier and
Luketina, 1988, p166.
[103]
Ibid, pp57-8.
[104] Other
differences between the sentences of probation and supervision were a) the
minimum term of supervision is only 6 months compared
with 1 year for probation,
and b) it was possible to attach a wider range of conditions to probation than
to supervision, for example
conditions relating to the enforcement of some other
orders or sentences which may be imposed by the courts
(p139).
[105] Spier and
Luketina, 1988, pp142-6.
[106]
Ibid, pp142-3.
[107] Ibid,
pp147 and 150.
[108] Spier and
Luketina, 1988, pp132-3.
[109]
Ibid, p134.
[110] Ibid,
pp132-6. Maatua Whangai programmes involved the placement of young Mäori
offenders in iwi, hapu or whanau structures
instead of social welfare
institutions or prisons. The authors comment that one possible explanation for
a low recorded placement
rate in Maatua Whangai programmes is that placement may
have be incorrectly coded under another category
(p136).
[111] Fines decreased
from 75.6% (1985) to 71.7% (1986) to 70.5% (1987). In 1986 and 1987 community
care was imposed in 1.0% and 0.8%
of cases
(p138).
[112] Spier &
Luketina, 1988, p138. The authors commented that the real situation could have
been more complicated. For example,
the average seriousness of offences could
have increased and perhaps without the introduction of community care there
would have
been an increase in the proportion of offenders imprisoned or there
would have been an even greater increase in the proportion of
offenders placed
on periodic detention.
[113]
Jackson, 1988, p245.
[114]
Methodology consisted of semi-structured interviews with a total of 73
respondents comprising probation officers, District Court
Judges, a police
Community Liaison Officer and members of various community organisations (p
10).
[115] Asher and
O’Neill, 1990, p27.
[116]
Ibid, p27.
[117] Asher and
O’Neill, 1990,
pp24-5.
[118] This issue was
discussed in another section of Asher and O’Neill’s (1990) research
report. The comment was made that
the merits of these criticisms were difficult
to assess at that point, and that allowing the combination of community service
and
supervision could dilute the effectiveness of both sentences, rather than
simply overcoming certain problems arising from the present
legislation (pp
28-9).
[119] Asher and
O’Neill, 1990,
pp25-6.
[120] Ibid,
p26.
[121] Asher and
O’Neill, 1990, p23.
[122]
Ibid, pp23-4.
[123] The report
presented a seriousness of offence scale developed by the Department of Justice
which allowed offences to be grouped according
to the degree of seriousness with
which they are regarded by the courts. Data for the period 1984 to 1987 were
combined and the
incarceration rate and average custodial sentence length was
calculated for each offence. A seriousness score was initially assigned
to all
offences that resulted in at least 10 custodial sentences over the four year
period mentioned above. This score is the incarceration
rate multiplied by the
average custodial sentence length. Offences that resulted in at least one
custodial sentence, but less than
10 custodial sentences, were grouped with
similar offences and the seriousness score was calculated as above with an
average score
taken over the grouped offences. Examples of offences and their
associated seriousness scores are as follows: Disorderly Behaviour,
0.7;
Burglary (Value less than $500) by Day, 74; Burglary (Value over $5000) by Day,
168; Kidnap, 680; Manslaughter (Weapon Involved),
1310; Male Rapes Female
(Weapon Involved), 2275 (p 19).
[124] Spier et al, 1991,
p35.
[125] Ibid,
p50.
[126] Ibid,
p60.
[127] Ibid,
p52.
[128] Ibid,
p50.
[129] Ibid,
p59.
[130] Ibid, 1991,
pp55-6.
[131] Ibid,
pp55-7.
[132] Department of
Justice, Report of the Review of Community Care Working Party, 1991.
These issues included staff development and training, community involvement,
community liaison, communication between the
various community care parties and
standardised contracting with sponsors by Community
Corrections.
[133] Ibid,
pp19-20.
[134] Ibid,
p9.
[135] Ibid,
p21.
[136] Ibid,
p21.
[137] Asher and Norris
(1991) Recidivism after Custodial and Community Based Sentences, cited a
number of methodological limitations to their research. For example, there was
no attempt to control for the many selection
factors that determine the choice
of sentence for a given individual, nor for the environmental factors that
affect the likelihood
of recidivism. Therefore recidivism figures were to be
treated as preliminary.
[138]
Asher and Norris, 1991,
pp15-17.
[139] Department of
Justice 1992, p8.
[140] Ibid,
p10.
[141] The review project
team consisted of four correctional regional representatives, a representative
of the Public Service Association
and a representative of the New Zealand
Association of Periodic Detention Officers.
[142] Operational issues
explored included staff management policies (recruitment, retention, EEP &
Cultural Perspectives Policy, training),
management/maintenance of buildings and
vehicles, Wet Weather Policy, detainee induction process, absenteeism strategies
and the
computerisation of periodic detention administrative systems.
[143] Review of Periodic
Detention Report, 1992,
p2.
[144] Ibid,
p3.
[145] Ibid,
p4.
[146] Ibid,
p12.
[147] Ibid,
p5.
[148] The other two options
available to the judiciary are a) to direct the offender to report on one
occasion in each week and on such
other occasion or occasions in each week as
the Warden may from time to time specify [s40(2)(a)(ii)]; and b) to direct the
offender
to report on such number of occasions in each week as the Warden may
from time to time specify [s 40 (2)(a)(iii)].
[149] Department of Justice,
1992, pp90-1.
[150] Ibid,
p94.
[151] Department of
Justice, 1993, Community Service Review
Report.
[152] Department of
Justice, 1993, pp13-14.
[153]
Court Servicing Teams were introduced by the Community Corrections Division to
prepare stand-down reports for the court. These reports
were prepared on the
same day as conviction, to facilitate efficient sentencing
(p16).
[154] Department of
Justice, 1993, p16.
[155]
Community organisations commonly stipulate the ‘type’ of offender
that they are/or are not prepared to sponsor for example,
no thieves or no
sexual offenders (p19).
[156]
Ibid, p19.
[157] Ibid,
pp20-1.
[158] A case is defined
in general terms as all charges against a single offender which share a first or
final hearing date in common.
For a case involving more than one charge the
charge taken to represent the case is the one that resulted in the most serious
penalty.
[159] See Spier, 1998,
p28. “Custodial sentences” includes corrective training but not
suspended sentences.
[160]
Source: Criminal Justice Group, Ministry of
Justice.
[161] Spier, 1998,
p33; Triggs, 1999, pp121-3, and p77 (this research report involves a
multivariate analysis of the relative influence
of various factors from
case-based data and criminal histories on sentencing in each of the years 1983,
1987, 1991, and 1995).
[162].
Spier,1998, p34.
[163] Source:
Criminal Justice Group, Ministry of
Justice.
[164] Triggs 1998,
pp88 and 93.
[165] Source:
Criminal Justice Group, Ministry of Justice. Community-based sentence musters
are figures for 30 June each
year.
[166] Source: Criminal
Justice Group, Ministry of
Justice.
[167] Source: Criminal
Justice Group, Ministry of
Justice.
[168] Spier, 1998,
p68.
[169] Source: Criminal
Justice Group, Ministry of
Justice.
[170] Spier and
Luketina, 1988, p95.
[171]
Triggs, 1999, pp76-8.
[172]
Source: Criminal Justice Group, Ministry of
Justice.
[173] Triggs, 1999,
p78.
[174] Source: Criminal
Justice Group, Ministry of
Justice.
[175] Its greater use
after 1988 for traffic offences generally, which contributed significantly to
the overall increase in the number
of community service sentences, can be mostly
attributed to increases in convictions for serious traffic offences and the
Transport
Amendment Act (No 2) 1988 which came into effect on 11 December 1988,
allowing a community-based sentence to be substituted for mandatory
disqualification in some
cases.
[176] Triggs, 1999,
pp89-92.
[177] Community
Probation, Quarterly Report, Second Quarter 1998/99,
p11.
[178] Spier and Luketina,
1988, pp132-3.
[179] Source:
Criminal Justice Group, Ministry of
Justice.
[180] Triggs, 1999,
pp94 and 97.
[181] Spier, 1998,
p32.
[182] Source: Criminal
Justice Group, Ministry of
Justice.
[183] Source:
Ibid.
[184] Source:
Ibid.
[185] Source:
Ibid.
[186]
Ibid.
[187] Triggs, 1999,
p127.
[188] Source: Criminal
Justice Group, Ministry of
Justice.
[189]
Ibid.
[190] Triggs, 1999,
p126.
[191] Although Cabinet
has approved draft legislation which will remove the ability to impose any
community-based sentence concurrently
with a suspended sentence of
imprisonment.
[192] Source:
Criminal Justice Group, Ministry of
Justice.
[193] 87% of
reparation sentences imposed in 1997 involved property offences. (Spier,1998,
p102.)
[194] Source: Criminal
Justice Group, Ministry of
Justice.
[195] Source:
Ibid.
[196] Source:
Ibid.
[197] The total number of
charges ever proved against the offender divided by the number of years over
which the offending took
place.
[198] Triggs, 1999,
pp83-4.
[199] Ibid,
p72.
[200] Ibid,
p128.
[201] Source: Criminal
Justice Group, Ministry of
Justice.
[202] Triggs, 1999,
pp102-3.
[203] Source: Criminal
Justice Group, Ministry of
Justice.
[204] Data from
Ministry of Justice forecasts, June
1998.
[205] These are the full
costs to the Department of Corrections and include Public Prisons Service and
Community Probation Service costs
plus an allocation of Departmental Head Office
and infrastructural costs such as computer and phone systems. Community-based
sentence
costs are made up of personnel costs 52.9%; operating costs 14.4%;
programme costs 6.4%; depreciation 3%, capital charges 1.4%; and
Departmental
overheads 21.9%. Figures (GST inclusive) are provided by Department of
Corrections.
[206] Ministry of
Justice, 1998; Tonry, 1990,
p158.
[207] Triggs, 1999,
pp122; 131-3.
[208] Spier,
1998, pp57-8.
[209] Lash, 1998,
Census of Prison Inmates 1997,
p30.
[210] Source: Criminal
Justice Group, Ministry of Justice.
[211] Triggs, 1999,
p130.
[212] Asher and
O’Neill, 1990, p25.
[213]
Lloyd, Mair, and Hough, 1994; Triggs, 1999, Appendix 2,
pp140-5.
[214] Triggs, 1999,
p142.
[215] Ibid,
p143-5.
[216] Leibrich,
1984.
[217] Ibid,
p203.
[218] Ibid,
p204.
[219] Ibid,
p204.
[220] Source: Criminal
Justice Group, Ministry of
Justice.
[221] Triggs,
1999.
[222] Ibid,
p130.
[223] Tonry, 1996,
p107.
[224] Department of
Corrections, Corrections News, June 1999,
p1.
[225] Chan and Zdenkowski
1986, pp136-8. Bottoms (1987) examined trends in sentencing in England and
Wales from 1965 to 1985, during which
suspended sentences, the community service
order and probation with special conditions (including attendance at day
centres) were
introduced to reduce prison use. Both the prison population and
the proportionate use of custody continued to increase. Hylton
(1982) has cited
Canadian provincial data from 1962 to 1979 to reach similar
conclusions.
[226] Vass, 1996,
p170. The New Zealand prison census in 1997 showed that 63.4% of the population
were serving sentences of more than
2 years
(p27).
[227] Triggs, 1999,
pp46-9 and p105.
[228] Ministry
of Justice, 1998.
[229] There
are nevertheless likely to have been some cost savings made in New Zealand in
the 1983-95 period as a result of the real decrease
in the use of imprisonment
(after taking into account the increase in the seriousness of offences and
offenders coming before the
courts) that followed from a greater use of
community-based sentences, even though the majority of those sentences did not
replace
imprisonment. A crude calculation could be as follows:
• estimated real reduction in imprisonment of 3.7 per 100 cases, averaging 3 months with release after half the sentence equates to 3.7 x 3/12 x 0.5 = 0.46 inmate/years. At an average inmate cost of $52,000 per annum this equals a cost decrease of $24,000 per 100 cases;
• estimated real increase in community-based sentences of 14.8 per 100 cases, with an average offender cost of $1,000 equals a cost increase of $14,800;
• estimated real decrease in fines of 15.7 per 100 cases at an average fine of $500 equals a cost increase (revenue loss) of $7,800;
• cost saving equals $1,400 per 100 cases. ($24,000 – 14,800
– 7,800).
This does not take into account costs resulting from breaches
and reviews of community-based sentences and subsequent re-sentencing,
or the
additional costs of any crimes committed whilst the offender was in the
community rather than in
prison.
[230] Numbers in
brackets represent the number of Australian States or Territories which have
this sentence available as a sentencing option.
The total number of Australian
jurisdictions is 9 including the Commonwealth (Federal Government) and
Australian Capital
Territory.
[231] This table
reflects the two community-based sentencing options generally available
throughout the United States. There are a number
of additional options,
however, that vary among the different States. California’s intermediate
sanctions provides an example
of possible impositions: short-term
‘shock’ incarceration in jail/prison (for a period of not more than
60 days); incarceration
in a ‘boot camp’ facility; home detention
with electronic monitoring; mandatory community service; restorative justice
programmes; work/training/education in a furlough programme; work (in lieu of
confinement) in a work release programme; day reporting;
mandatory residential
or non-residential substance abuse treatment programmes; and mandatory random
drug testing.
[232] Before the
Criminal Justice Act 1991 probation was utilised “instead of a
sentence”, Walker and Padfield, 1996,
p259.
[233] However, it is not
available for convictions for serious crimes (murder, rape or other serious
assaults), other offences that contain
a mandatory minimum term of imprisonment
or offences where the “3 strikes & you’re out” laws
apply.
[234] Refer to section
3.
[235] Cited in The Laws
of Australia, 1998, 12.5, chapter 5, section
52.
[236] For example, as a
sentence in it’s own right, as a direct alternative to imprisonment or as
a condition to be attached to a
probation order.
[237] Additional common
elements among the jurisdictions include the requirement for offender’s to
consent to the imposition of community
service (except in Tasmania and South
Australia) and a maximum number of hours pre-determined by legislation (with a
range of 200
to 500 hours among the
jurisdictions).
[238] Community
service is regularly imposed for assault, burglary and larceny, car theft,
driving offences and malicious
damage.
[239] Walker and
Padfield, 1996, pp265-6.
[240]
The Laws of Australia, 1998, 12.5, chapter 5, section
89.
[241] Ibid, 12.5, chapter
5, section 94.
[242] Ibid,
12.5, chapter 5, section
97.
[243] Ibid, 12.5, chapter
5, sections 98, 101.
[244] New
South Wales has 11 periodic detention centres (Judicial Commission of New South
Wales, 1998, p2).
[245] The
Periodic Detention of Prisoners Act 1981 (NSW) and the Periodic Detention Act
1995 (ACT).
[246] A midweek
periodic detention scheme is available in some
centres.
[247] The Periodic
Detention of Prisoners Act 1981 (NSW) and the Periodic Detention Act 1995
(ACT).
[248] Stage II is
mandated by ss10 and 11 of the Periodic Detention of Prisoners Act 1981
(NSW).
[249] Community
Committees consist of people nominated/appointed by the Commissioner of
Corrective Services. The function of the Committee
is to make recommendations
to the Commissioner as to the nature and extent of the periodic detention work
available/permitted and
on any other matters raised (s32 Periodic Detention of
Prisoners Act 1981
(NSW)).
[250] Judicial
Commission of New South Wales, 1998,
pp31-2.
[251] Discussed in
Ministry of Justice, Sentencing Policy and Guidance, A Discussion Paper,
1997, pp81-4.
[252] Ministry of
Justice, The Use of Imprisonment in New Zealand, 1998; Triggs, 1998,
p103.
[253] See for example,
Tonry, 1996, p103.
[254] Spier,
1998, pp109-17; Triggs,1999,
pp133-5.
[255] Tonry, 1998,
p211.
[256] Tonry, 1996,
p102.
[257] See for example
Home Office, Protecting the Public, 1996,
p39.
[258] Ministry of Justice,
The Use of Imprisonment in New Zealand,
pp73-4.
[259] Triggs, 1999,
pp59-62, 123.
[260] Von Hirsch
and Ashworth, ed. 1992, p383; Worrall 1997,
p14.
[261] Canadian Sentencing
Commission, 1987, pp359,
367-71.
[262] Tonry, 1996,
p104.
[263] Vass, 1996,
pp171-2.
[264] Byrne, 1990,
p18.
[265] Vass, 1996,
p177.
[266] Criminal Justice
Act 1991 s6(4).
[267] Home
Office, 1995, p3.
[268] Ibid
p5.
[269] Ibid,
p6.
[270] Maguire, etc., 1997,
p1199.
[271] Walker and
Padfield, 1996, p259; Home Office, 1995,
p6.
[272] Walker and Padfield,
1996, p258.
[273] Ibid,
p259.
[274] Home Office, 1998,
p7.
[275] Walker and Padfield,
1996, p262.
[276] Ibid,
p263.
[277] Ibid,
pp263-4.
[278] Ibid,
p264.
[279] Ibid,
p265.
[280] Ibid,
p265.
[281] Ibid,
p266.
[282] Mortimer and May,
1998.
[283] Walker, 1996,
pp266-7; Maguire, 1997, p1215; Mortimer and May,
1998.
[284] Ibid, p306-7; Home
Office, 1998, p44; Maguire,
p1215.
[285] Ibid,
p269-70.
[286] Ibid,
p270.
[287] Ibid,
p305.
[288] Home Office, Issue
12/98,Summary Probation Statistics,
p6.
[289] Home Office, Issue
5/98, the Prison
Population.
[290] Home Office,
Issue 12/98, p3.
[291] Maguire
etc., 1997, pp1207-8.
[292]
Walker and Padfield,
p258.
[293] Ibid,
p261.
[294] Home Office, Issue
12/98, Summary Probation Statistics England and Wales,
p3.
[295] Home Office Research
and Statistics Directorate, Sentencing Practice, 1998,
p36.
[296] Source: Home Office
Statistical Bulletin, Issue 18/98, Cautions, Court Proceedings and Sentencing,
England and Wales 1997, 17 September
1997.
[297] Home Office
Statistical Bulletin, Issue 6/17
1997.
[298] The Law Reform
Commission, Report on Sentencing, Ireland
1996.
[299] Kelly, Criminal
Sentences (1993), pp53 and
61-5.
[300] Ibid,
p51.
[301] Tonry and
Hamilton,1995, p83.
[302] Ibid,
p78.
[303] A number of the
sentencing options can be ‘mixed’ with the various modes of release.
For example, an individual may be
found guilty, not have a conviction recorded
and be subject to supervised release (intermediate sentences). There are a
number of
variations both within the sentencing framework and between the
different Australian
jurisdictions.
[304] The
Laws of Australia, 12.5, chapter 5, section
52.
[305] Ibid, chapter 5,
sections 84-88.
[306] Ibid,
chapter 5, sections
89-98.
[307] New South Wales
has 11 periodic detention
centres.
[308] The Periodic
Detention of Prisoners Act 1981 (NSW) instructs the sentencing judge to first
decide whether or not to sentence an offender to a term of imprisonment before
deciding
whether the sentence be served by way of periodic detention. This
provision was intended to prevent net-widening. However, the
courts appear to
have rejected this two stage method (i.e. decide on the length of imprisonment
first, then decide that it should
be served by way of periodic detention) and
often inflate the term of imprisonment in order to compensate for the perceived
lenient
nature of the order for periodic detention. In effect the courts treat
periodic detention as a sentence ‘in its own right’.
This increases
the possibility of net-widening because if the sentence of periodic detention is
cancelled, the detainee is required
to spend the balance of the term in full
time custody. The result is often a much harsher sentence than may have been
warranted
by the original offence (Periodic Detention Revisited, p
64).
[309] In the NSW High
Court the most common offences for which periodic detention is imposed are
property, drug and against the person
offences (82.64%). In the NSW Local Court
the most common offences are traffic, property and against the person (80.53%)
(Ibid,
pp 54 – 55).
[310] These include offences
against the Periodic Detention of Prisoners Act 1981, offences against the
Summary Offences Act 1988 and offences against s 562I of the Crimes Act
1900.
[311] Judicial Commission
of New South Wales, 1998,
p2.
[312] A midweek periodic
detention scheme is available at some
centres.
[313] Judicial
Commission of New South Wales, 1998,
p1.
[314] Community Committees
consist of people nominated/appointed by the Commissioner of Corrective
Services. The functions of the Committee
are to make recommendations to the
Commissioner as to the nature and extent of the periodic detention work
available/permitted and
on any other matters raised
(s32).
[315] The New South
Wales Law Reform Committee addressed the issue of Stage II in its report on
sentencing and recommended that it be discounted.
Arguments against Stage II
highlighted were: that Stage II is inconsistent with “truth in
sentencing” as a detainee’s
progression to Stage II is an
administrative, as opposed to a judicial decision; consequently, periodic
detention is viewed as overly
lenient by both the public and the judiciary; that
if Stage II was discontinued it may encourage a greater use of periodic
detention
as a sentencing option; and, retaining Stage II makes periodic
detention too similar to the Community Service Order. The Commission’s
recommendation was for legislative change to ensure that detainees would be
required to complete 50% or six months of their sentence
(whichever is greater)
prior to being eligible for Stage II (NSW Law Reform Commission, Report No 79,
Sentencing, 1996 cited in Judicial
Commission of New South Wales, 1998,
pp32-3).
[316] Ibid,
p31-2.
[317] The Symonston
Periodic Detention Centre is the ACT’s only periodic detention
centre.
[318] Other
stipulations for the sentence are that the court is satisfied periodic detention
is appropriate for the individual offender;
that appropriate facilities are
available at the relevant detention centre; if required, that the offender
submits themselves to
a medical examination; that the court has received a
pre-sentence report; and that the court has explained a number of issues to
the
offender including the consequences of non-compliance (s6(1)).
[319] The Centre opened with
35 beds available. The muster was reached within the first 7 months of
operation (Establishment of a Correctional Facility, Department of
Corrective Services, 1996).
[320] The Laws of
Australia, 12.5, chapter 5, sections 120.1 to 120.15.
[376] Department of Justice, Review of Periodic Detention Report, 1992, p2.
[377] Ibid,
p3.
[378] Ibid,
p4.
[379] Ibid,
p12.
[380] This ratio was
incorporated into the community corrections productivity objectives in
approximately 1993/94. The national ratio
in 1990/91 was 5:19 (other
community-based sentences: periodic detention). In 1992/93 the ratio was 5:68
(other community-based
sentences: periodic detention) (Thorburn, P., 1993?,
p8).
[381] Department of
Justice, 1992, p13.
[382] Ibid,
p5.
[383] The other two options
available to the judiciary are a) to direct the offender to report on one
occasion in each week and on such
other occasion or occasions in each week as
the Warden may from time to time specify [s40(2)(a)(ii)]; and b) to direct the
offender
to report on such number of occasions in each week as the Warden may
from time to time specify [s 40 (2)(a)(iii)].
[384] Dept of Justice 1992,
pp90-1.
[385] Ibid,
p94.
[386] Lee A (1981),
Community Service Orders, Penal Policy Review Committee Background Papers
Vol 1 Study Series No 7, Planning and Development Division: Department of
Justice.
[387] Lee, 1981,
p5.
[388] Legislation allowed
for between 8 and 200 hours (amended in 1985 to between 20 and 200
hours).
[389] 1 of three
possible types of service. Lee,
p4.
[390] Lee, 1981,
p6.
[391] Elley &
Irving’s socio-economic status scale was utilised (cited in Lee,
1981)
[392] Lee,
pp5-6.
[393] Methodology
consisted of a random sample selected from the population of those sentenced to
community service during the first 21
months of its existence (1 February 1981
to 31 October 1982). Data was drawn from the Wanganui Computer
Database.
[394] Seriousness was
determined by a scale that contained seriousness ratings attached to every
police-classified offence. These ratings
were adopted from a small pilot study
by the Police Department which attempted to establish the relative
importance/seriousness of
all offences for urgency of police clearance. The
minimum possible seriousness rating was 13 (vehicle certification [or lack of]);
the maximum possible was 98 (murder).
[395] Leibrich, p19. The
statistical significance was minimal within the range
possible.
[396] Ibid, pp10-12
and p22. In terms of the imposition of co-sentences, women were given
additional probation proportionately more often
than men, and more of them were
given longer periods of
supervision.
[397] Ibid,
p32.
[398] Ibid,
pp155-6.
[399] Ibid,
p156.
[400] Ibid,
p152.
[401] Ibid,
p152.
[402] The community
service sample consisted of every person who had received at least one community
service sentence between 1 May 1981
and 31 July 1981 (n = 419). The periodic
detention group consisted of one third of all people who had received at least
one periodic
detention sentence during the same period (n = 459). Any person
who had received both a community service and periodic detention
sentence during
that period was included in the group defined by the first sentence received (p
166).
[403] Ibid, p204. Also
discussed in section 5.
[404]
Bradshaw, J. Community service orders in Otago and Southland: a Survey,
1984. Survey method consisted of the collection and analysis of probation
reports completed between 1.2.81 and end of January 1982
(n =
473).
[405] The low number of
women in the sample may limit Bradshaw’s conclusions. Nine women in 1979
and 1980 had received a custodial
sentence. In 1981 six women received
community service while no female offender received a custodial sentence.
[406] Bradshaw 1984,
pp21-2.
[407] Ibid,
p21.
[408] Ibid,
p22.
[409] The strategy
included reviews of a) s16 of the Criminal Justice Act 1985 that allows an
offender appearing for sentence to call witnesses
to speak about their cultural
background and the way in which it may “relate to the commission of the
offence and the positive
effects it may have in helping to avoid further
offending” (p 244) and b) s134 which provided for the establishment of
Criminal
Justice Advisory Councils (p 246). Section 134 was repealed in
1993.
[410] Jackson, 1988,
p245.
[411] Ibid,
pp245-6.
[412] Asher and
O’Neill, 1990,
pp24-5.
[413] The presentation
of specific recommendations was not a key focus of the research. Rather, the
research objectives were a) the identification
of major issues relating to
community involvement in the care and supervision of offenders b) indicate
problem areas that may need
to be addressed by the Department of Justice and, c)
indicate questions on which data should be collected in subsequent research
projects (p 9).
[414] Asher and
O’Neill, 1990, p62.
[415]
Community Service Review Report, 1993,
pp26-8.
[416] Ibid, p32. The
Directorate was the Divisional Manager and senior staff, with 4 regional
managers.
[417] Court Servicing
Teams were introduced by the Community Corrections Division to prepare
stand-down reports for the court. These reports
were prepared on the same day
as conviction, to facilitate efficient sentencing (p
16).
[418] Community Service
Review Report 1993, p16.
[419]
Community organisations commonly stipulate the ‘type’ of offender
that they are/or are not prepared to sponsor for example,
no thieves or no
sexual offenders ( p 19).
[420]
The recommendation was that if the [then] proposed Criminal Justice Law Reform
Bill (introduced in 1992), which provided for a sentence
of community service to
be imposed following a sentence of imprisonment, was passed, care should be
taken in the administration of
the community service sentence to preserve its
integrity and maintain a sufficient supply of sponsors (p
19).
[421] Ibid, pp18-19,
31.
[422] The recommendation
was that sponsors be given the option to give evidence in court on a breach or
review of sentence, but not be
required to do so, and that the Probation Manual
be amended accordingly (p 19). As this recommendation was not approved, it
remains
unclear as to what the situation was regarding calling sponsors to give
evidence.
[423] Ibid, pp18,
30-1.
[424] Ibid,
pp20-1.
[425] Ibid,
pp21-2.
[426] Ibid,
p29.
[427] PPRC,
p120.
[428] McDonald, 1986,
pp14-15.
[429] Ibid, p12.
Cases involving Maori offenders = 10,606 and cases involving non-Maori offenders
= 16,853.
[430] Ibid,
pp13-14.
[431] Spier and
Luketina, 1988, pp132-3.
[432]
Ibid, p134.
[433] Ibid,
pp132-6. Maatua Whangai programmes involved the placement of young Mäori
offenders in iwi, hapu or whanau structures
instead of social welfare
institutions and prisons. The authors comment that one possible explanation for
a low recorded placement
rate in Maatua Whangai programmes is that placement may
have be incorrectly coded under another category (p
136).
[434] Fines decreased
from 75.6% (1985) to 71.7% (1986) to 70.5% (1987). In 1986 and 1987 community
care was imposed in 1.0% and 0.8%
of cases (p
138).
[435] Spier &
Luketina, 1988, p138. The authors commented that their analysis could have been
superficial, as the real situation is
likely to be more complicated. For
example, the average seriousness of offences could have increased and perhaps
without the introduction
of community care there would have been an increase in
the proportion of offenders imprisoned or there would have been an even greater
increase in the proportion of offenders placed on periodic detention (p
138).
[436] Asher and
O’Neill, 1990, p23.
[437]
Ibid, pp23-4.
[438] This term
of reference did not receive any further discussion in the Report of the
Review of Community Care Working Party
(1991).
[439]
Methodology consisted of two phases. Phase One: In 1990 the Department of
Justice circulated a copy of a discussion paper on community
care (Young, W.,
1990) to staff for comment. Phase Two: Working Party members administered
questionnaires to the community, judiciary,
probation management and field staff
(pp5-6). The size of the various samples was not
specified.
[440] These issues
included staff development and training, community involvement, community
liaison, communication between the various
community care parties and
standardised contracting with sponsors by Community
Corrections.
[441] Report of
the Review of Community Care Working Party, 1991,
pp19-20.
[442] Ibid,
p9.
[443] Ibid,
p21.
[444] Ibid,
p21.
[445] Source: Criminal
Justice Group, Ministry of
Justice.
[446] Information
provided by Department of
Corrections.
[447] Traffic
offences and drug offences accounted for 8% and 5% of the supervision sentences
imposed respectively (p
20).
[448] McDonald (1986) pp7
and19-21. McDonald notes that the Criminal Justice Act 1985 prescribes against
the imposition of supervision
and community service sentences concurrently.
However, for 46 charges that resulted in a sentence of supervision, a sentence
of
community service had also been ordered. The 46 charges for which both
sentences were given included 26 charges for one individual.
The data suggested
that sentencing had occurred contrary to legislative requirements however,
MacDonald (1986) commented that the
data had not been fully investigated (p21).
[449] 61% of the cases
resulting in supervision involved non-Maori offenders
(p19).
[450] McDonald, 1986,
pp19-20.
[451] Spier and
Luketina, 1988, p57-8.
[452]
Other differences between the sentences of probation and supervision were a) the
minimum term of supervision is only 6 months compared
with 1 year for probation,
and b) it was possible to attach a wider range of conditions to probation than
to supervision for example,
conditions relating to the enforcement of some other
orders or sentences which may be imposed by the courts (p
139).
[453] Spier and Luketina,
1988, pp142-6.
[454] Ibid,
pp142-3.
[455] Ibid, pp147 and
150.
[456] Ibid,
p148.
[457] Ibid,
p149.
[458] Data for the period
1984 to 1987 were combined and the incarceration rate and average custodial
sentence length was calculated for
each offence. A seriousness score was
initially assigned to all offences that resulted in at least 10 custodial
sentences over the
four year period mentioned above. This score is the
incarceration rate multiplied by the average custodial sentence length.
Offences
that resulted in at least one custodial sentence, but less than 10
custodial sentences, were grouped with similar offences and the
seriousness
score was calculated as above with an average score taken over the grouped
offences. Examples of offences and their
associated seriousness scores are as
follows: Disorderly Behaviour, 0.7; Burglary (Value less than $500) by Day, 74;
Burglary (Value
over $5000) by Day, 168; Kidnap, 680; Manslaughter (Weapon
Involved), 1310; Male Rapes Female (Weapon Involved), 2275 (p 19).
[459] Spier, et al, 1991,
pp55-6.
[460] Ibid,
pp55-7.
[461] This issue was
discussed in another section of Asher and O’Neill’s (1990) research
report. The comment was made that
the merits of these criticisms were difficult
to assess at that point, and that allowing the combination of community service
and
supervision could dilute the effectiveness of both sentences, rather than
simply overcoming certain problems arising from the present
legislation (pp
28-9).
[462] Asher and
O’Neill, 1990,
pp25-6.
[463] Ibid,
p26.
[464] Asher and Norris,
1991, p17. Note methodological limitations previously outlined.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/lawreform/NZPenalPP/1999/1.html