New Zealand Acts

SENTENCING AMENDMENT ACT 2007 - SECT 33

33 New heading and sections 69B to 69M inserted

The following heading and sections are inserted after section 69A :

69B Sentence of community detention

1 A court may sentence an offender to community detention if—

a) the offender is convicted of an offence punishable by imprisonment; or

b) the offender is convicted of an offence and the enactment prescribing the offence expressly provides that a sentence of home detention may be imposed on conviction; or

c) the offender is convicted of an offence and the enactment prescribing the offence expressly provides that a community-based sentence may be imposed on conviction.

2 The sentence term may be for a period, being no more than 6 months, that the court thinks fit.

3 The court must specify the curfew period and the curfew address when sentencing the offender to a sentence of community detention.

4 Every curfew period specified under subsection (3) must not be for a period of less than 2 hours, and the total of every curfew period for any week must not be more than 84 hours.

5 An offender is not in custody during the curfew period.

69C Guidance on use of sentence of community detention

1 A court may impose a sentence of community detention if the court is satisfied—

a) that a sentence of community detention—

i) would reduce the likelihood of further offending by restricting the offender's movements during specified periods, including, but not limited to, offending of a particular type or at a particular time; or

ii) would achieve 1 or more of the purposes set out in section 7(1)(a), (b), (e), or (f) ; and

b) that an electronically monitored curfew is appropriate, taking into account the nature and the seriousness of the offence and the circumstances and the background of the offender.

2 A court may sentence an offender to community detention if—

a) the court is satisfied that—

i) the proposed curfew address is suitable; and

ii) the relevant occupants (as defined in section 26A(4) ) of the proposed curfew address—

A) understand the conditions of the curfew that will apply to the offender; and

B) consent to the offender remaining at the address in accordance with the curfew; and

C) have been informed that they may withdraw their consent, at any time, to the offender serving the sentence at the curfew address; and

iii) the offender has been made aware of and understands all the conditions that will apply during the sentence and he or she agrees to comply with them; and

b) the proposed curfew address is in an area in which a community detention scheme is operated by the chief executive of the Department of Corrections.

69D Concurrent and cumulative sentences of community detention

1 If a court imposes a sentence of community detention on an offender who is already subject to a sentence of community detention, the sentences must be served concurrently unless the court directs that they are to be served cumulatively.

2 If a court imposes cumulative sentences of community detention or imposes 1 or more sentences of community detention on an offender who is already serving a sentence of community detention, the total term of the sentences of community detention must not be more than 6 months.

3 If a court imposes a sentence of community work and a sentence of community detention, or imposes one of them on an offender who is already subject to the other, the sentences must be served concurrently.

69E Conditions of community detention during sentence term

1 An offender sentenced to community detention is subject to the following conditions during the sentence term:

a) during the curfew period—

i) the offender must not, at any time, leave the curfew address except in the circumstances set out in subsection (2) :

ii) the offender is under the supervision of a probation officer and must co-operate with the probation officer and comply with any lawful direction given by that probation officer:

b) the offender must report in person to a probation officer in the probation area in which the offender resides as soon as practicable, and not later than 24 hours, after the sentence is imposed, unless the 24 hours elapses on a weekend or a public holiday, in which case the offender must report on the next working day:

c) the offender must report to a probation officer as and when required to do so by the probation officer, and must notify the probation officer of his or her residential address, any change to that address, and the nature and place of his or her employment when asked to do so:

d) the offender must keep in his or her possession the curfew order drawn up under section 74 and, if requested to do so by a member of the police or a probation officer, must produce the order for inspection:

e) the offender must, when required to do so by a probation officer, submit to the electronic monitoring of compliance with the conditions of his or her sentence, which may require the offender to be connected to electronic monitoring equipment throughout the sentence term and not just throughout the curfew period.

2 An offender may leave the curfew address during the curfew period only—

a) to seek urgent medical or dental treatment; or

b) to avoid or minimise a serious risk of death or injury to the offender or any other person; or

c) with the approval of a probation officer—

i) to seek or engage in employment; or

ii) to attend training or other rehabilitative or reintegrative activities or programmes; or

iii) to attend a restorative justice conference or other process relating to the offender's offending; or

iv) to carry out any undertaking arising from any restorative justice process; or

d) with the approval of a probation officer and subject to any conditions imposed by the probation officer, on humanitarian grounds.

3 A probation officer may only give an approval under subsection (2)(c) if the offender is serving a sentence of supervision or intensive supervision together with the sentence of community detention.

4 A probation officer may approve an alternative curfew address under section 69K , pending determination of an application to vary the curfew address under section 69I .

69F Electronic monitoring

1 The purpose of an electronic monitoring condition imposed as a condition under section 69E(1)(e) is to deter the offender from breaching the condition that the offender remain at the curfew address during the curfew period and to monitor compliance with that condition.

2 Information about an offender that is obtained through electronic monitoring, may be used only for the purposes referred to in subsection (1) and for the following purposes:

a) to verify compliance with the condition that the offender remain at the curfew address during the curfew period:

b) to detect non-compliance with that condition:

c) to provide evidence of non-compliance with that condition and the commission of offences during the curfew period:

d) to verify that the offender has not tampered or otherwise interfered with the ability of the electronic monitoring equipment to operate effectively and accurately.

3 Information may be collected during the whole of the sentence term but may be used only if it was collected for 1 or more of the purposes set out in this section and, except for information collected for the purpose in subsection (2)(d) , was collected during the curfew period.

4 Any information obtained by electronic monitoring outside the curfew period must be destroyed as soon as practicable.

69G Offence to breach conditions of community detention

An offender commits an offence, and is liable on summary conviction to imprisonment for a term not exceeding 6 months or to a fine not exceeding $1,500, who—

a) fails, without reasonable excuse, to comply with any condition of a sentence of community detention; or

b) fails, without reasonable excuse, to report when required to do so under section 78 or 80 .

69H Offence to refuse entry to community detention curfew address

1 Every person commits an offence, and is liable on summary conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $5,000, who refuses or fails, without reasonable excuse, to allow a probation officer, who has identified himself or herself, to enter into the curfew address if the offender is required to be at the address at the time that the probation officer seeks entry.

2 Every person commits an offence, and is liable on summary conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $5,000, who refuses or fails, without reasonable excuse, to allow an authorised person to enter into the curfew address for the purpose of servicing or inspecting any equipment used in the electronic monitoring of the offender's compliance with the condition that the offender remain at the curfew address during the curfew period (whether or not the offender is required to be at the curfew address at the time).

3 For the purposes of subsection (2) , an
"authorised person" is a person who—

a) is a probation officer and has identified himself or herself; or

b) accompanies a person described in paragraph (a) ; or

c) is authorised in writing by a probation officer and has produced that written authority to an occupant of the residence.

69I Variation or cancellation of sentence of community detention

1 An offender who is subject to a sentence of community detention, or a probation officer, may apply, in accordance with section 72 , for an order under subsection (3) on the grounds that—

a) the offender is unable to comply, or has failed to comply, with any conditions of the sentence; or

b) the curfew address is no longer available or suitable because of a change in circumstances; or

c) having regard to any changes in circumstances since the sentence was imposed and to the manner in which the offender has responded to the sentence,—

i) the rehabilitation and reintegration of the offender would be advanced by the suspension or variation of the curfew period; or

ii) the continuation of the sentence is no longer necessary in the interests of the community or the offender.

2 A probation officer may apply for an order under subsection (3) if an offender, who is subject to a sentence of community detention, is convicted of an offence punishable by imprisonment.

3 On an application under subsection (1) or (2) , the court may, if it is satisfied that the grounds on which the application is based have been established,—

a) suspend or vary the curfew period; or

b) vary the curfew address; or

c) cancel the sentence; or

d) cancel the sentence and substitute any other sentence (including another sentence of community detention) that could have been imposed on the offender at the time that the offender was convicted of the offence for which the sentence was imposed.

4 When determining a substitute sentence to be imposed under subsection (3)(d) , the court must take into account the portion of the original sentence that remains unserved at the time of the order.

5 If the court cancels the sentence, the sentence expires on the date that the order is made or on any other date that the court may specify.

6 If an application is made under this section for the suspension or variation of the curfew period, a probation officer may suspend the curfew period until the application has been heard and disposed of.

69J Application of section 69I during epidemic

1 While an epidemic management notice is in force,—

a) a probation officer who has applied in accordance with section 72 for an order under section 69I(3) varying the curfew period subject to which a sentence of community detention was imposed by the court on an offender may himself or herself vary the curfew period; and

b) any probation officer may himself or herself vary the curfew period subject to which a sentence of community detention was imposed by the court on an offender if the offender has applied in accordance with section 72 for an order under section 69I(3) to vary the curfew period; and

c) a probation officer may vary or suspend any conditions of a sentence of community detention.

2 A variation under subsection (1)(a) or (b) has effect until the application concerned has been heard or disposed of.

3 Any variation or suspension of a condition under subsection (1)(c) has effect until the earlier of—

a) the revocation of the epidemic management notice; or

b) the date on which a probation officer rescinds the variation or suspension.

69K Alternative curfew address pending determination of application under section 69I

1 This section applies if a probation officer or an offender who is subject to a sentence of community detention intends to apply, or has applied, for a variation of conditions under section 69I on the ground specified in section 69I(1)(b) (which relates to the offender's curfew address).

2 A probation officer may approve an alternative curfew address at which the offender must remain during the curfew period pending the determination of an application.

3 If a probation officer approves an alternative curfew address before an application under section 69I has been made, the probation officer must make an application to the court under that section within 5 working days.

4 Subsection (3) does not apply if an offender makes an application under section 69I within the 5-day period specified in subsection (3) .

5 If, in the opinion of the probation officer, there is no suitable alternative curfew address available and the probation officer has not made an application under section 69I , the probation officer must make an application to the court under that section at the earliest opportunity.

69L When sentence ends on non-release day

If the last day of an offender's sentence of community detention falls on a non-release day, the offender ceases to be subject to the sentence on the nearest preceding day that is not a non-release day.

69M Community detention does not affect entitlements under Social Security Act 1964

The fact that a person is serving a sentence of community detention does not, of itself, affect any entitlement the person may have under the Social Security Act 1964 .