This chapter outlines the principles for enforcement action decisions. It defines what non-compliance is, and provides guidelines for appropriate enforcement action to take in response to non-compliance.
More detailed information is provided in further chapters about the use of sanctions, breaches, and applications to the court or the New Zealand Parole Board (NZPB).
Any failure by the offender to comply with a requirement of the sentence is considered to be non-compliance.
Examples:
There are two types of enforcement action:
Legal action is any action taken by the court or NZPB in response to non-compliance. Legal action is taken by the court or NZPB following an application, prosecution or submission made by a probation officer.
All instances of non-compliance should be addressed with the offender and some action taken. This action should be taken quickly and decisively.
Each situation should be considered on its own merits and in conjunction with the principles and guidelines outlined in this part.
Before making any decision about what type of enforcement action to take, the probation officer must consider and balance the following:
Note: Legal enforcement action will be taken if it is determined that there is a serious risk to community safety (or the safety of any individual). This will always outweigh any potential benefit to the offender (of not taking legal action).
Non-compliance with any condition is to be treated seriously. Equal weight should be given to responding to non-compliance with both standard and special conditions.
Standard conditions cover:
The probation officer should ensure compliance with these conditions is maintained.
Note: When the offender consistently reports at times other than as required to do so by the instruction to report (ITR), this should be treated seriously and action should be taken by the probation officer.
The probation officer has no authority to choose not to require compliance with a standard condition or a special condition (unless that is expressly provided for in the wording of the special condition).
Compliance with a special condition can be deferred, but only if it is planned that the offender will complete the special condition at a later date in the sentence. This must be documented in the sentence plan.
If the probation officer considers that compliance with a special condition is no longer relevant, or cannot be achieved, it is their responsibility to make an application to court or the NZPB to address that issue.
In every instance that legal enforcement action is undertaken, check the enforcement action against the relevant sections of the legislation under which the offender was sentenced or released.
The probation officer must ensure they take account of the legislation that the sentence/order was imposed under, and any specific requirements of that legislation.
This will be particularly important when legal enforcement action is being taken against offenders sentenced before the 2007 amendments to the Parole and Sentencing Acts 2002.
When managing joint sentences, enforcement action must take account of the other sentence(s).
References: For information on enforcement action relating to:
(please refer to the related links section on this page).
Changes to the legislation in 2007 have made it clear that parole is a privilege, not a right. The NZPB is responsible for deciding to withdraw that privilege.
If an offender on parole breaches their release conditions, or any other grounds for recall are met, the probation officer has a legal obligation to make an application for recall. In such circumstances, the probation officer is responsible for ensuring that the parole board is provided with timely and appropriate information to enable it to consider whether or not to recall the offender.
Note: In cases of life parole the decision to make an application to recall an offender is that of the CPPS general manager. After consultation with the service manager, the probation officer is to refer all potential life parole recall cases to the operations help desk.
Probation officers are responsible for ensuring that offenders understand the consequences of non-compliance (induction and sentence management) and for ensuring these consequences are applied without delay.
Note: For OWS offenders some form of enforcement action must be commenced within one week of the non-compliance.
Reference: For OWS offenders on parole, specific timeframes are outlined in Volume 2, Part VII, Chapter 3, Section 3E, OWS Offender on Parole (please refer to the related links section on this page).
If an offender fails to comply with any of the requirements of their sentence/order, they may offer an excuse. The probation officer will be required to determine whether or not the excuse is reasonable. If it is not reasonable, then enforcement action should be taken.
Note: All information relating to any excuse offered by the offender, and the probation officer’s response to this, should be recorded in IOMS casenotes.
In general, the probation officer should take the lowest level of enforcement action considered likely to achieve the required result (usually future compliance). A higher level of action will be required if there is any risk to safety, and must be considered if the offender is on OWS.
It can be appropriate to repeat the same type of enforcement action, including sanctions, at appropriate interventions if this achieves the desired outcome. If non-compliance continues, the level of enforcement action should be escalated.
The first (lowest) level of enforcement action is sanctions. It is appropriate to use sanctions in response to minor instances of non-compliance, such as the first instance of failing to report as instructed.
Examples:
The second level of enforcement action is legal action. This should be used in response to more serious non-compliance, or when sanctions have not resulted in an improvement in the offender’s response to the sentence/order.
Examples:
On some occasions it may be appropriate to use more than one enforcement tool at a time.
Example: Consider using breach and recall for offenders on parole if the offender:
Where the probation officer is unsure of the appropriate enforcement action to take, this should be discussed with the service manager.
Important:
Specific details of the non-compliance and the response taken, e.g. formal verbal/written warning issued, should be recorded in IOMS casenotes at the time of the event.
Any discussion with the senior probation officer or service manager relating to non-compliance and action taken, or not taken, should also be recorded.
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