J. Considering community detention

This topic outlines the factors to consider prior to recommending community detention (CD) as a sentencing option:

CD is considered a punitive sentence, and can also be used to limit opportunities for further offending.

It can be imposed if the court is satisfied that it would reduce the risk of further offending by restricting the offender's whereabouts, or it would achieve one or more of the purposes set out in section 7(1)(a)(b)(e) or (f) of the Sentencing Act 2002. These are paraphrased below:

• to hold the offender accountable for harm done
• to promote in the offender a sense of responsibility for that harm
• to denounce the offender's conduct, and
• to deter the offender or others from similar conduct.

CD can be imposed for up to six months. Each curfew must be at least two hours long, and the total of all curfew periods can be up to 84 hours per week.

Legislative references: Sections 69B and 69C Sentencing Act 2002.

Joint sentences

CD can be imposed jointly with:

• a monetary penalty (fine or reparation)
• CW, and/or
• supervision or intensive supervision.

Rehabilitation needs can therefore be addressed through a joint sentence of CD with supervision or intensive supervision.

Where CD is being served concurrently with CW (either as the result of a joint sentence, or because one has been imposed as the result of breach action in relation to the other), it is expected that curfew periods will be used to confine the offender to home the night before they are due to report for CW.

Pre-sentence report

Any pre-sentence report that canvasses or recommends CD as a sentencing option must include an appendix. The appendix provides detailed information about the suitability of the proposed address etc.

Reference: For more information, go to Appendix for Electronically-monitored Sentences/Orders.

Targeted offenders

CD is a sentence targeted at:

• offenders whose likelihood of re-offending could be reduced by restricting their movements at particular times, and
• those for who punishment by means of a partial restriction of liberty is considered appropriate.

It should be considered as a potential sentencing option for all offenders who would otherwise be sentenced to a very short (less than six months) prison sentence with no post-release conditions.

Examples of those whose likelihood of re-offending would be reduced by restricting their movements at particular times could include:

• offenders with a history of burglary or theft at particular times of the day or week
• offenders with a history of low level violence associated with excessive drinking in licensed premises after an evening of drinking, and
• offenders with excess breath alcohol (EBA) convictions who tend to binge drink and then drive after being paid.

Examples of those who are considered suitable for CD as a punitive option could include:

• offenders sentenced for a breach of CW
• offenders who are considered to require a more severe sentence than CW, but who are not willing to address their offending by means of a rehabilitative programme, and
• offenders who would otherwise receive a short prison sentence as a punitive sentence.

Special conditions

There are no special conditions associated with the sentence of CD.

The court must specify both the address at which the offender is to remain during curfew periods (the curfew address) and the times at which the offender is required to remain at the curfew address (the curfew period). The pre-sentence report must therefore recommend both a curfew address and curfew periods.

Curfew periods

The provisions for establishing curfew periods have been designed to allow maximum flexibility, so that curfew periods can be designed to meet individual circumstances.

Curfews can be designed to meet individual circumstances, although unnecessary complexity should be avoided by limiting the number of different daily schedules. Wherever possible limit the number of different curfew times to no more than two (e.g. one schedule for weekdays and one schedule for weekends).

Where an offender has previously failed to comply with a tailored curfew schedule, or a tailored schedule is not necessary, consider recommending a single standard schedule (e.g. 6pm to 6am daily, or 6pm Friday to 6am Monday).

Information to consider when developing curfew periods

When recommending curfew periods in the pre-sentence report, probation officers must take all available information into account.

In doing so the probation officer must consider:

• any obligations the offender may have (e.g. employment or child care) and whether these can be accommodated within the proposed curfew periods
• the requirements of any other sentence (e.g. CW, programme attendance)
• any pattern of offending, and the extent to which the curfew periods can be designed to limit further offending, and
• any risk to the safety of the offender, and/or any other occupants of the proposed address (whether or not they are defined as relevant occupants), as a result of the offender being confined to the address during the curfew periods.

First curfew

The pre-sentence report must include a recommendation for the time and date of the first curfew period.

It is CPPS policy to recommend that the first curfew occurs at least three days after the sentencing hearing, in order to enable electronic monitoring (EM) equipment to be installed before the commencement of the first curfew.

The first curfew will usually be the same as one of the recommended regular curfew periods. However, if the regular curfew period commences outside of normal working hours and at the start of a weekend (e.g. 8pm Fridays) it may be appropriate to recommend a different first curfew period (during working hours earlier in the week) in order to confirm that EM is working satisfactorily before the routine period commences.

Curfew address (residential)

The legislation has been specifically designed so as not to restrict the use of CD to the offender's place of residence. The curfew address will usually be a residential address, but it may not be the offender's usual address.

Examples of alternative residential addresses that may be recommended include the:

• home of a relative considered to be a positive influence on a young offender, and
• home of a suitable friend or relative (i.e. not the family home) as the curfew address for an offender convicted of family violence.

Curfew address (non-residential)

It is also possible to use a non-residential property as the curfew address.

Examples could include:

• marae (where the members of the marae have agreed to take the offender 'under their wing'), or
• other facilities at which the offender would be 'in the care of' an appropriate group or agency

It is not considered that employment or education facilities will be appropriate as curfew addresses.

It is anticipated that a broader range of potential options will be identified and explored, as the new sentence of CD becomes established.

Relevant occupants

A probation officer must identify all relevant occupants at the proposed curfew address. This includes all persons aged 16 years and over who ordinarily live at the address.

All relevant occupants must give their informed consent for the offender to serve a sentence of CD at the curfew address. This must be confirmed in the pre-sentence report.

Electronic monitoring (EM)

All curfew addresses must be suitable for EM of the offender. This must be confirmed in the pre-sentence report.

Offenders will normally be required to wear an ankle bracelet at all times (not just during curfew periods).

Compliance with the curfew periods will be electronically monitored at the time of the curfew. However, the monitoring information will be reviewed retrospectively (the next working day). There will be no immediate response to a failure to comply with a curfew.

Note: This is different to home detention (HD), which is monitored actively (i.e. on HD, non-compliance is detected and responded to immediately).