D. Not counting hours

Introduction

There is provision in sections 66D(1) and 66D(2) of the Sentencing Act 2002 to treat work that is not carried out to the satisfaction of the probation officer/senior community work supervisor as work not completed.

In this situation the hours not counted, and which therefore have to be worked again, may also be referred to as “penalty hours”.

CWC only

This provision of the legislation can only be applied to offenders on a centre placement. Where offenders on an agency placement do not work to the standard required, they will be transferred from the agency placement and put into a centre placement.

Maximum hours able to be not counted

The application of this provision is limited to a maximum of 10% of the total sentence hours; this will range from 4 to 40 hours, depending on the sentence imposed.

On each occasion where a recommendation for time not to be counted is approved, 2 hours will not be counted.

For any individual offender, only one recommendation can be made on any given community work (CW) day.

Service manager oversight

All documentation of decisions to not count hours is to be provided to the service manager for review.

Review points

Once the number of hours not counted has reached a total of 4 hours, and then at accumulated deductions of 12, 20, 28 and 36 hours, and at any other point directed by the service manager, the service manager is to:

• review the application of the provision to not count hours, and
• determine whether this approach should continue or whether alternative forms of enforcement are required.

Definition of work not carried out satisfactorily

An offender will be considered to have failed to carry out work under a sentence of CW to the satisfaction of the probation officer/senior community work supervisor if:

• without good reason, they are putting in noticeably less effort than is expected/required
• they are deliberately and obviously working more slowly than other members of the working party
• despite having been trained to undertake the work required, they are repeatedly making careless errors
• their attitude is insolent, aggressive (but not to the extent that they pose any threat to the safety of the supervisor or of anyone else) or intentionally disruptive, or
• they intentionally mismanage their work (but with relatively minor consequences).

When the provisions do not apply

The use of the ability not to treat hours worked as work undertaken under the sentence does not apply to situations where the offender:

• is late reporting/does not report (with or without a good reason)
• leaves the work place without the community work supervisor’s permission (without a good reason)
• poses any threat to the safety of the supervisor or anyone else (including him/herself), or
• breaks the CWC rules – with the exception of rule 4 (requires offender to do their best to complete tasks assigned to them and carry out tasks as well as they can).

In such circumstances, other enforcement actions should be considered.

Other actions (calling the police, contacting the service manager and having the offender removed) are to be followed, and formal enforcement action considered where the offender:

• is under the influence of alcohol or other drugs
• presents a threat to the safety of any member of the work party or any member of the public (e.g. threatening behaviour, assaults, etc.), or
• is totally uncooperative/refuses to work at all.

Authorisation of decision not to count hours

Using the not counting hours recommendation form, the community work supervisor responsible for supervising the work party will make a recommendation for the hours not to be counted to the senior community work supervisor (with the relevant probation officer delegation), or a probation officer, who will then either approve or decline the recommendation.

When making the decision, the senior community work supervisor/ probation officer should give consideration to the following:

• that the application of penalty hours is consistent with operational policy
• if approved, the hours will remain within the limit of 10% of the total sentence time, and
• that approving the recommendation does not take the total number of hours not counted past one of the review points that requires authorisation from the service manager.

Where possible the approval decision to not count hours should be made on the same day, and the offender advised of the outcome.

Record keeping

All recommendations to not count hours are to be documented setting out the reasons and the steps taken prior to making the recommendation. This should be done using the appropriate form and attached to the case file.

All information relating to the recommendation and decision to not count hours should be recorded in IOMS case notes.

Completing the additional hours

Hours not counted will need to be considered with the requirement to complete at least 100 hours within each six month period. To reinforce the link between the behaviour and the consequences, the offender should complete the penalty hours as close as possible to the occasion on which the penalty hours were imposed.

The table below shows the three options for the completion of penalty hours, and the issues to be considered with each.

Objections from the offender

Objections from the offender are to be dealt with via the standard complaints procedure mechanism.