D. Canvassing HD or CD with the Offender

This section outlines the extra requirements and information which will need to be discussed with the offender if HD or CD is to be canvassed as a sentencing option.

Obtaining consent

When canvassing HD or CD, it is important that offenders are fully informed about HD and/or CD.

Provide the offender with some general information about HD or CD, including:

• what is electronic monitoring (EM)
• what is HD or CD
• types of suitable activities while subject to EM
• types of employment (HD only).

There are fact sheets that should be provided to the offender with this information.

Reference: For more information, go to Unsuitable Activities for Electronic Monitoring.

Working through the offender agreement will ensure that the offender understands:

• what is required of them to comply with a sentence of HD or CD
• the process for canvassing these sentences, including sharing information with other parties.

Obtain the offender’s consent for HD or CD by signing the offender agreement.

Offender consent

The table below sets out the specific consent requirement for HD and CD.

When canvassing CD, the offender must agree to a curfew period. If the curfew period is not established at the initial interview, the agreement will have to be returned to the offender to sign. The probation officer may wish to make further enquiries before establishing a curfew period.

Legislative reference: Section 26A Sentencing Act 2002.

If the offender does not consent

If the offender does not consent to any or all of the requirements outlined, the pre-sentence report must not recommend CD/HD. The reasons for this (i.e. the offender’s refusal to consent) must be clearly noted and accompanied by the form Refusal to Consent to Canvass CD/HD.

At this point the probation officer is not required to complete any further enquiries for CD/HD, as these sentences can no longer be considered at the sentencing hearing.

If the offender/occupants withdraw consent

There may be times when the offender, or occupants withdraw consent during the full report/appendix enquiries process.

If the probation officer would otherwise have recommended CD/HD, the completed appendix may be presented to the court with any proposed residence and curfew details – clearly indicating those that the offender does not consent to. This will enable the court to further canvass these issues with the offender and/or the offender’s counsel at the sentencing hearing, should they wish to do so.

If the occupants have withdrawn consent, and the offender appears suitable for HD, the Probation Officer should advise the court that the offender is a suitable candidate for HD, and they may consider sentencing them to Imprisonment with leave to apply for HD.

Reference: Offender Withdrawal of Consent form (POI 10)

Post detention conditions

If post detention conditions (PDC) are to be imposed, this must be done when the offender is sentenced to HD. The report must therefore consider all special conditions required during HD and any PDC period, as well as the length of any PDC period.

Legislative reference: Section 80M Sentencing Act 2002.

Advice protocols

When the offender signs the offender agreement, and agrees for the probation officer to canvass HD/CD as sentencing options, the offender also agrees to the probation officer:

• advising the police that CPPS is canvassing HD/CD
• consulting CYF if:
  • there are any children/young people who reside at (full-time or part-time) or frequent the proposed residence, or
  • the offender has past convictions for child abuse, and
• informing the relevant occupants of the home about the nature of the offender’s prior and current offending.

Notes:

• This information is set out in the offender agreement form.
• A child/young person is defined as a person under 18 years of age.

If the offender objects to the probation officer doing any of these, they should be advised that it is not possible to canvass the sentence without making these investigations. Make it clear that it is very possible that the alternative recommendation will be imprisonment. If the offender still does not wish to consent to these requirements, no further action can be taken to canvass these options. This must be made clear in the report.

Information to gather

When canvassing HD and CD, gather the following information from the offender:

• proposed accommodation, and names of occupants at the address (including children)
• available family/whanau support (important mainly for HD)
• proposed employment and details of employer 
• issues that may impact on the management of the offender’s compliance with a sentence of HD/CD.

Note:

Housing New Zealand Tenancy Agreements

• If an offender is proposing to move into a Housing New Zealand property where they are not the tenant, for three months or more, the tenant must obtain permission.
  
  Housing New Zealand tenants must obtain written approval from Housing New Zealand for anyone to live with them for three months or longer.
  
  The probation officer must check if the tenancy agreement was granted after 22 February 2010.  If it was, the probation officer must request a copy of the written approval from Housing New Zealand for the offender to live at that address.
  
  It is the responsibility of the tenant to obtain a copy of the tenancy agreement and/or permission from Housing New Zealand for an offender to reside at the address.

Issues could include:

• lack of transport
• type of employment
• involvement in unsuitable activities
• family responsibilities
• health issues.

Note:

• These are not viewed as barriers to recommending or completing a sentence but may impact on the management of the sentence.
• Ensure that the offender has no health or disability issues that would prevent them from wearing an electronic bracelet on their ankle such as a skin condition or a missing limb.

Recommending HD

Advise the CPS court servicing team that HD is being recommended. This is to ensure that a probation officer can attend the sentencing hearing.

Notify the CPS office where the offender is planning to live.

Putting the EM company on standby

The monitoring company will need to be advised that an electronic monitoring (EM) connection may be required. They will need to be on standby and ready to connect the offender if sentenced to HD.

This should be done by a probation officer at the CPPS office near where the offender will be living.

The monitoring company should be notified of a possible connection at least two working days before the connection by using the EM connection form.

If a landline is required, arrangements will need to be made before recommending HD as to whether a connection is possible on the date of the hearing.