All community-based sentences/orders are eligible for breach action where there is provision in the legislation to do so.
Legislative references: Sections 69(G), 70, 70(A), 71, 80(S), 80(U) and 96 Sentencing Act 2002, and section 71 Parole Act 2002.
Breach action should not be used for first time, minor instances of non-compliance where sanctions are appropriate.
The primary situations when the probation officer/senior community work supervisor should take breach action are:
Important: If the offender has been informed by the probation officer/senior community work supervisor that any further non-compliance will result in breach action, then this action must be taken in the event of further non-compliance.
The probation officer can take breach action on the following grounds:
Note: Breach action cannot be taken against an offender who has a special condition to take prescription medication, if they withdraw consent to take the medication. It may be appropriate in this situation to apply to the court/New Zealand Parole Board (NZPB) to have the condition cancelled. The probation officer should discuss what action to take with the service manager.
All information relating to a breach of sentence/order should be laid with the court within two weeks of the breach, or one week if the offender is on the offender warning system (OWS).
Note: Under section 14 of the Summary Proceedings Act 1957, the breach charge must be laid within six months of the offence date.
Reference: There are different requirements for timeframes for breach action for OWS offenders on parole. All enforcement action for this group of offenders must be taken in accordance with the specific timeframes outlined in Volume 2, Part VII, Chapter 3, Section 3E OWS Offender on Parole (please refer to the related links section on this page).
When a recall application is made for an offender subject to parole on the grounds of failure to comply with the release conditions, the probation officer should also take breach action.
Where the recall application is based on further offending, or risk to the community, then breach action may not be appropriate. All recall applications should be discussed with the service manager who will provide guidance regarding whether or not breach action should be taken.
Any Community Probation & Psychological Services (CPPS) staff member who has the appropriate authorisation may lay a breach charge. A senior community work supervisor must have received formal delegation for this purpose before laying information.
When the probation officer is unclear regarding appropriate enforcement action, advice should be sought from a senior probation officer or service manager.
Note: As with all other legal enforcement action, breach action should be checked by the service manager prior to the laying of the information.
All details of and reasons for the breach action should be recorded in IOMS casenotes. This should include details of any discussion regarding the breach action with the service manager or senior probation officer.
Before a CPPS staff member can serve a summons on the offender, the following must occur:
Legislative reference: Section 23(1)(c) Summary Proceedings Act 1957.
The following information must be provided to the offender when serving the summons:
Legislative reference: Section 12 (1) Criminal Disclosure Act 2008.
If the offender's whereabouts is unknown, or it is unsafe to serve a summons when the breach charge is laid, then a warrant to arrest (WTA) should be requested from the court.
Reference: Guidelines for seeking a WTA are provided in Volume 2, Part VII, Chapter 6 Having Offenders Arrested (please refer to the related links section on this page).
In some cases offenders can be arrested without warrant. This enables a probation officer or a member of the police to arrest an offender and have them held in custody until the first available hearing before a court.
Reference: See Volume 2, Part VII, Chapter 6 Having Offenders Arrested, for further information about this process (please refer to the related links section on this page).
Once a breach charge has been laid, it should not be withdrawn without careful consideration, including consultation with the service manager.
When making a decision whether or not to withdraw a breach charge, consideration should be given to the following issues:
If requested in open court by either a judge or lawyer to withdraw the breach, the court officer should request a short remand, and discuss the matter with the service manager.
Note: A breach conviction is noted on the offender's convictions history and as such provides important information regarding patterns of non-compliance. This information can impact on future sentencing recommendations and management of community-based sentences.
If a breach remains unprocessed five years after the laying of the charge at court, it must be withdrawn. This can happen, for instance, if the offender absconds and avoids coming to the attention of the police for that time.
Areas are to ensure that:
Note: If the probation officer has been made aware that an offender has died, after confirmation of the death, the breach should be withdrawn.
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