Special Conditions

The court and the NZPB must always impose standard conditions but may also impose special conditions on offenders. This topic outlines the available types of special conditions and when they should be recommended.  The following topic provides standard wording to be used when recommending special conditions.

Recommending special conditions

Probation officers must take care not to recommend more special conditions than can be managed and monitored during the recommended sentence or order.

If special conditions are considered necessary, the body of the report must clearly outline:

• why they are required, and
• how they will mitigate risk in addition to the standard conditions.

The least restrictive special condition required to mitigate the identified level of risk should be proposed in the report.

Note: Some special conditions are available only in relation to specific sentences/orders.

Detailed guidance on main recommendations in relation to each sentence or order is given in this volume:

• Pre-sentence Reports
• Parole Assessment Reports
• Extended Supervision Reports.

Reasons for imposing special conditions

Special conditions for offenders released following a sentence of imprisonment (release on conditions or parole) can only be imposed if they are designed to:

• reduce the risk of re-offending by the offender
• facilitate and promote the rehabilitation and reintegration of the offender, or
• provide for the reasonable concerns of the victim(s) of the offender.

Legislative references: Section 93 Sentencing Act 2002, and section 15 Parole Act 2002.

Special conditions for sentences of intensive supervision, home detention (HD), post detention conditions and supervision can only be imposed if the court is satisfied that all of the following apply:

• there is a significant risk of re-offending.
• standard conditions alone would not adequately reduce that risk, and
• the imposition of special conditions would reduce the likelihood of further offending through the rehabilitation and reintegration of the offender.

Legislative references: Section 50 and section 52 Sentencing Act 2002.

Special conditions: programmes

The legislation defines programmes as:

• attendance at any medical, psychological, social, therapeutic, cultural, educational, employment-related, rehabilitative, or reintegrative programme
• any psychiatric or other counselling or assessment, or
• placement in the care of any appropriate person, persons, or agency, approved by the chief executive of the Department of Corrections, such as (without limitation):
  • an iwi, hapu or wh?nau
  • a marae
  • an ethnic or cultural group
  • a religious group, such as a church or religious order, or
  • members of any of the above.

Legislative references: Section 51, 54H and 93(1) Sentencing Act 2002, and section 16 Parole Act 2002.

Other special conditions

Other special conditions that can be imposed include conditions:

• relating to the offender’s place of residence (which may include a condition that the offender resides at a particular place)
• residential restrictions (including timeframes that the offender must be restricted to the residence)
• requiring access to an offenders residence for the purpose of home visits
• relating to the offender’s finances or earnings
• that the offender does not associate with any particular person, persons or class of person
• requiring the offender to take prescription medicine
• requiring the offender to undertake training in basic work & living skills (BWLS)
• requiring the offender to comply with the requirements of judicial monitoring (intensive supervision and HD or NZPB monitoring)
• any other conditions considered necessary to reduce the risk of re-offending.

Legislative references: Sections 52, 54I and 93(1) Sentencing Act 2002 and section 15 Parole Act 2002.

Conditions relating to residence

The standard conditions relating to accommodation require the offender to notify a probation officer of their residential address (in some situations before it changes), and not to live at any address the probation officer has directed them not to reside at (the legislation for the sentence/order under consideration should be checked to confirm the exact wording that applies in any given situation).

These standard conditions provide an adequate level of control to mitigate risk associated with residence in most circumstances.

However, the court or parole board may impose a special condition requiring an offender to reside at a specified address, if this is considered necessary. This may be accompanied by a special condition that allows the probation officer to vary that address – if not; the address can only be varied if an application to vary is approved by the court or parole board.

Including special conditions for residential restrictions

Reports that recommend home detention HD) or parole with residential restrictions (RR), must include a special condition specifying the approved residential address.

Reports that recommend community detention (CD) must include a special condition specifying the approved curfew address. This is because these sentences/orders have standard conditions requiring them to remain at an address for specified times.

There is special wording that should be used when requesting residential restrictions.

Legislative reference: section 33 Parole Act 2002.

Note: The wording of special conditions relating to residential restrictions is outlined in the following section.

Conditions relating to residential access

As part of the standard procedures associated with the management of all sentences and orders, probation officers are expected to carry out home visits at the offender’s residential address. In the vast majority of cases offenders accept such visits without complaint.

If there is good reason to believe that the offender will not allow the probation officer access into their residential address, and it is considered that such access is essential, a special condition requiring that access be given to the probation officer as directed may be recommended.

Such a special condition would be imposed rarely, and would normally be requested as a variation to the sentence/order (when evidence of refusal to allow entry, and reasons for the requirement have been established) rather than at the pre-sentence stage.

If such a special condition is considered necessary, the reasons for the recommendation and the nature of access required (e.g. to the property, to all rooms in the property etc.) should be detailed in the report. It is recommended that probation officers discuss these (i.e. proposed special conditions requiring access) with a service manager or senior probation officer before finalising the report.

Note: If HD, CD or Parole with RR is imposed, the offender and the relevant occupants commit an offence if they refuse to allow the probation officer access into the residential/curfew address. It is therefore extremely unlikely that there will be any need for an additional special condition requiring access in these cases.

Legislative references (offence to allow access):

• Section 69H Sentencing Act 2002(CD)
• Section 80T Sentencing Act 2002(HD)
• Section 72 Parole Act 2002 (Residential Restrictions)

Conditions relating to finances

Probation officers must not directly manage the offender’s finances or provide budget advice.

Any condition relating to finances should be managed by referral to an appropriate and recognised (affiliated) budget advisory service.

In the case of an offender who, because of mental or intellectual disability, is unable to manage their own finances, it may be necessary to work with family and health services to facilitate the appointment of a legal guardian or other appropriate person to undertake power of attorney.

Conditions relating to non-association

A condition of non-association can be imposed as a standard or a special condition and for a variety of reasons. It may apply to:

• the offender’s previous association with a co-offender
• non-association with children under 16 years (sex offenders)
• the offender keeping away from a victim.

Conditions relating to prescription medication

A condition for prescription medicine can only be imposed if the offender consents, having been fully advised by a person qualified to prescribe that medication, about:

• the nature and likely or intended effect of it, and
• any known risks.

If the offender withdraws their consent, this is not a breach of conditions, but an application for variation should be considered.

Conditions relating to training in BWLS

Attending a basic work and living skill programme can be applied as a special condition of a sentence/order when it is determined that attendance at such a programme:

• is a beneficial motivating factor for the offender
• will assist the offender in gaining useful employment, and
• will reduce the likelihood of re-offending

Conditions relating to judicial monitoring

Judicial monitoring is imposed, at the time of sentencing, as a special condition of either home detention (HD), or intensive supervision.

Judicial monitoring (JM) is aimed at borderline cases, where the decision to impose a community-based sentence/order in favour of imprisonment is very finely balanced. If a judge considers that an offender may benefit from JM, they will impose this as a special condition.

A similar provision applies to offenders on parole. For details on this see NZPB Progress Monitoring.

It is CPPS policy not to recommend JM as special condition in a pre-sentence report.

Legislative references: Sections 80ZJ to 80ZM Sentencing Act 2002.