HD is a sentence that requires the offender to remain at the approved HD residence at all times (exceptions are emergency situations or when absence has been authorised by the probation officer). The offender is also required to comply with a range of standard conditions and special conditions imposed by the court. It is targeted at offenders convicted of serious offences, and with a high risk of re-offending.
HD has both punitive and rehabilitative elements, and can be designed to address both rehabilitative and re-integrative needs. It can be imposed jointly with:
Experience of managing HD to date indicates that the majority of offenders recommended as suitable for HD will comply with the requirements of the order.
HD has been designed on the basis of frequent contact between the offender and the Department of Corrections. On average, probation officers will spend approximately 55 hours managing a sentence of HD, and 16 hours managing a post detention order.
It is estimated that HD sentences will be imposed for an average of six months, and that post detention conditions will be imposed for an average of nine months. It is recommended that long HD sentences (those significantly more than six months) should be imposed only in exceptional circumstances, as offenders find it extremely difficult to maintain compliance with the restrictions of the sentence over an extended period.
Before sentencing an offender to HD, the court must consider a probation officer's report on the suitability of HD in this particular case. Both the offender, and all relevant occupants of the proposed address, must agree to comply with the conditions of HD. Their willingness and ability to comply will be assessed by a probation officer prior to sentencing, and reported to the court.
This information is provided by means of a full pre-sentence report with appendix, which is designed to provide all information the court needs in order to meet the requirements of sections 80A(2) and 80A(3A) of the Sentencing Act.
The probation officer will include an appendix with the full pre-sentence report:
In the report the probation officer will recommend both the type and length of the sentence(s) to be imposed, and will include details of recommended special conditions.
During the preparation of the pre-sentence report, the probation officer will discuss the arrangements to be followed in the event that the offender is sentenced to HD. This will include a requirement for the offender to make their own way to the approved address by a specified time.
Note: The order and associated documentation, given to the offender by Ministry of Justice (Courts) staff immediately after sentencing, will include details of the time by which the offender must return to their residence.
These processes are based on those that have been used for several years, with very few issues, to manage the commencement of HD orders following approval being granted by the NZPB. If an offender fails to return to the approved address by the specified time, they are considered to have breached the conditions of the sentence, and appropriate enforcement action will be taken.
Before the hearing, a probation officer will have made provisional arrangements for the installation of EM equipment. Its installation is scheduled as soon as possible after the time the offender is to have returned home and every effort will be made to complete this installation on the day of sentencing.
Note: Even if the EM equipment is not installed that day, the offender is required to remain at the residence unless a probation officer authorises an absence.
In most cases, the offender will be monitored using standard HD technology. This involves having a home monitoring unit (HMU) installed in the residence, and an ankle bracelet securely attached to the offender's ankle. The ankle bracelet remains in place at all times, unless specific arrangements are made to temporarily remove it (e.g. because the offender is admitted to hospital, or has to travel by plane). In a small number of cases, GPS tracking technology may also be used.
The HMU transmits monitoring information continuously to a central monitoring facility. The EM company is alerted immediately if the offender fails to comply with a curfew requirement (e.g. if they fail to return from an authorised absence by the specified time, or leave the residence without an authorised absence), and also if they tamper with the equipment (either the HMU or the ankle bracelet). Any indication of non-compliance or tampering is taken seriously and can quickly lead to the offender being arrested and charged.
The offender must remain at the approved HD residence at all times, other than in emergency situations. Absences can only be authorised by the probation officer who will give the offender written evidence of the authorisation, which must be carried by the offender along with the original HD order, in case it is requested by a police officer or probation officer.
During the first three months of the sentence, absences will only be approved for a limited range of specified purposes. Absences will primarily be approved for meeting ongoing requirements that cannot be met by any other relevant occupant, such as:
As the sentence progresses, and to the extent that the offender complies with the requirements of earlier stages, the probation officer may increase the range of specified purposes for which absences are approved to include recreational and other pro-social activities.
Offenders serving a sentence of six months or more may also, in the last quarter of their sentence, be granted short absences without a specified purpose.
The details of the offender's location during all absences for a specified purpose (including the route to be taken) must be approved by the probation officer. Compliance with the requirements of each individual absence may be monitored using one or more techniques such as:
For at least the first three months of their sentence (phases I and II) the offender will be required to report to a probation officer (at the relevant service centre) at least once every week. In addition, the probation officer will visit the offender at home at least once each week. Reporting is usually more frequent in the first few weeks (phase I), as the probation officer plans the sentence and ensures that the offender is familiar with all requirements.
If the offender complies with all the requirements of phases I and II, they may progress to phase III. In this phase the offender is required to report at the service centre once every two weeks, with a probation officer visiting the offender at home on the alternate week.
Throughout their sentence, the offender will also be required to comply with any other special conditions requiring attendance at a particular place and time, for example programmes or counselling.
A probation officer will issue the offender with an ITR for each occasion on which reporting is required. This ITR will specify the time and location of the report. Non-compliance with any ITR is a breach of the offender's conditions, and may result in enforcement action being taken against them.
Many offenders serving a sentence of HD will have special conditions to attend one or more programmes. These could include:
Some may also require assistance and support to address re-integrative needs (e.g. employment) and/or responsivity barriers (e.g. literacy or cultural identity needs).
The offender's probation officer is responsible for ensuring that the offender has access to each specified programme, and for referring their case back to the court if the programme is not available for any reason.
If the offender is required to attend more than one programme, the probation officer will schedule the programmes throughout the length of the sentence (including any period of post detention conditions). As far as possible, programmes are scheduled to be completed consecutively and so that responsivity issues (e.g. substance abuse) are addressed before intensive rehabilitation programmes commence.
The probation officer is also responsible for establishing mechanisms to monitor compliance with these and any other special conditions (such as a non-association order, or a requirement to live at a particular address). These can include:
Failure to comply with any special condition is a breach of the offender's conditions, and may result in enforcement action being taken against them.
If the offender's circumstances change, it is essential that they advise their probation officer immediately. The probation officer will be able to advise the offender of the appropriate course of action to take.
In the event of a breakdown of residential arrangements, the probation officer may approve temporary alternatives pending detailed consideration by the court. Approval of a temporary residence will require the agreement of all relevant occupants, and the temporary installation of EM equipment.
In other situations, such as evidence that a different programme may be more appropriate for the offender, the probation officer may suspend the condition until the court has considered an application to vary the special condition.
If the approval of a probation officer is not obtained, the adoption of any temporary alternatives by the offender will be treated as a failure to comply with the sentence and appropriate enforcement action will be taken.
If an offender fails to comply with one or more requirements of the sentence, without good reason, enforcement action will be taken against them. Before taking any such action, the probation officer will investigate the circumstances of the non-compliance in order to determine whether or not there was a good reason for it and will require independent evidence of such a reason.
Example: An unauthorised absence due to a medical emergency will require evidence from the medical staff attending to the emergency.
There is a wide range of enforcement action available and applied for instances of non-compliance. Lower level infringements are dealt with by internal sanctions such as returning the offender to an earlier phase of the sentence, with an associated increase in reporting requirements and/or decrease in the range and number of absences to be authorised.
More serious instances of non-compliance are dealt with by means of an application to the court. According to the severity of the non-compliance this could involve:
If a probation officer charges the offender with a breach of their conditions, a preferred penalty will be recommended by the probation officer. This will vary, according to the severity of the breach. At the lowest level the probation officer may seek only to have the offender convicted and discharged, whereas at the most severe level a sentence of imprisonment may be recommended.
Most breach applications in relation to HD are expected to result in the offender being sentenced to CW, with the sentence to be served concurrently with the HD sentence.
If the probation officer makes an application to cancel the sentence of HD and substitute it with an alternative sentence, the recommended sentence will usually be from a higher tier of the hierarchy. It is expected that most such applications will therefore result in the offender being sentenced to prison.
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