A.09.01.R2 Matters to be considered when deciding temporary release

Statutory Matters that must be considered

Section 62(3): The Chief Executive must consider and take into account the following matters when making a decision on a prisoner’s application for temporary release:

• Whether the release of the prisoner might pose an undue risk to the safety of the community while the prisoner is outside the prison.
• The extent to which the prisoner should be supervised or monitored while outside the prison.
• The benefits to the prisoner and the community of release in facilitating the reintegration of the prisoner into the community.
• Whether removal or release would undermine the integrity of any sentence being served by the prisoner.

A 1998 Crown Law opinion regarding temporary releases under the Penal Institutions Act 1954 stated that “the phrase ‘maintenance of the integrity of the sentence’ is intended to turn the decision maker’s mind to the effect of the temporary release of an offender on the sentence imposed on him or her, having regard to the length of sentence, its specific purpose and its general purposes, including a public perception of the sentence.

The nature of the release sought must also be considered, both the specific release requested and the overall pattern of releases (if any) which have been granted to this offender”.

Matters that are also to be considered when making temporary release decisions

Guideline: The following matters are also to be considered and taken into account when making a decision about a prisoner’s application for temporary release from custody:

• The safety of the public, and of any person or any class of persons, including:
  • registered victims on the Victims Notification Register (VNR) and any known unregistered victims, who may be affected by the temporary release of the prisoner; and / or
  • whether the proposed sponsor or other person has, or has had, a protection or restraining order(s) against the prisoner and who may be in, or potentially come within, the vicinity of the prisoner during the proposed temporary release. If the proposed sponsor has a current protection or restraining order against the prisoner then temporary release should not be approved.
• The likelihood of the prisoner committing further offences upon their temporary release.
• The welfare of the prisoner and any change(s) in their attitude and / or behaviour during the sentence.
• The assessed needs of the prisoner in accordance with the prisoner’s sentence management plan and how much oversight is required.
• The nature of the offence or offences for which the prisoner is currently imprisoned.
• Any representations made by the prisoner, whether orally or in writing, and any written submissions made by any other person on the prisoner’s behalf.
• The value of the activity in which the prisoner proposes to engage if temporary release is granted in terms of building community relationships that support reintegration e.g. cultural, sport, crafts, community projects / activities / support groups, etc.
• Where a prisoner has a history of escape convictions and / or escape attempts, the eligibility regarding the prisoner’s application for temporary release will:
  • be inclusive of any corrections jurisdiction overseas or law enforcement agency within New Zealand or overseas so far as this is known; and
  • be restricted to a timeframe for escape convictions and / or escape attempts of 7 years prior to the date of an application for temporary release, except in exceptional circumstances, and with the prior approval of the National Services Manager.
• Where an application from a prisoner who has a history of escape convictions and / or escape attempts is declined, no further applications for temporary release by the prisoner will be considered until a period of six months has elapsed from that decision to decline.
• Information provided by the prisoner in their application, as well as discussions held with the proposed sponsor in regard to any proposed conditions of the prisoner’s temporary release.
• Sentence management plan.
• Any gang affiliation. Those prisoners who have been identified or have identified themselves as gang members or associates should not be granted temporary release if there is a likelihood of any involvement with their gangs during their proposed temporary release.

However where there are exceptional circumstances involving close family relationships and where a proposed activity does not involve any gang related activity, approval may be given for a temporary release if the approving officer is satisfied that any potential contact with gang members or associates can be minimized and / or managed.

It must be noted that family relationships in this context do not include relationships based solely on gang affiliations.

• The prisoner’s IDU (Identified Drug User) status, bearing in mind health and safety legislation and the Chief Executive’s responsibilities in terms of the rehabilitation of the prisoner.
• Risks associated with the prisoner’s behaviour that led to penalties being imposed under sections 133 or 137 of the Corrections Act 2004, or convictions as a result of prisoner misconduct or offending.
• The potential for intense media interest that could jeopardise the purpose of the prisoner’s temporary release by publication of the prisoner’s whereabouts and other personal details.

Sponsors of temporary releases

Use of sponsor for temporary releases

Guideline: Temporary releases should only be undertaken in conjunction with a temporary release sponsor approved by the Prison Manager, unless otherwise specified in this PPM. All sponsorship verifications will be dealt with by PS, unless otherwise stated.

Criteria for approval of sponsor

Guideline: Corrections staff must be satisfied that a sponsor:

• is law-abiding;
• has demonstrated responsibility;
• has maturity of judgement, and
• is able to fulfil the responsibilities and requirements outlined in this PPM.

Identification may be requested

Guideline: Appropriate identification (e.g. photo ID) may be requested by PS (or CPPS) staff when checking the credentials of a prospective sponsor of a prisoner applying for temporary release from custody.

Appropriate identification (e.g. photo ID) may be requested by PS staff when checking the credentials of an approved sponsor who has arrived at prison to accompany a prisoner approved for temporary release from custody.

Written notice to prisoner’s sponsor

Guideline: All prisoner sponsors must be notified in writing of any arrangements and conditions of the temporary release from custody and what action to take if the prisoner's behaviour gives cause for concern.

5.5 Responsibilities of approved prisoner sponsor

Guideline: The responsibilities of the approved sponsor of a prisoner on temporary release from custody are:

• to acknowledge in writing that they understand the temporary release licence and the conditions contained in that licence as signed by the prisoner;
• to oversee the prisoner’s compliance with his or her temporary release conditions, including their return to prison at the stipulated time;
• to inform prison staff immediately, or as soon as practicable, if a prisoner breaches his or her temporary release conditions; and
• to inform prison staff immediately of any behavioural or safety issue.

Sponsorship verification report

Guideline: If a sponsor is required, then a PS or CPPS staff member, as appropriate, must provide the prison with a report on:

• the suitability of the proposed sponsor (e.g. if the proposed sponsor is a victim of the prisoner’s original offence);
• the proposed address where the prisoner intends to reside during their temporary release (if the release involves an overnight stay);
• the impact the release is likely to have on any other persons including any victim(s); and
• whether there are protection or restraining order issues (e.g. if the proposed sponsor has, or has had, a protection or restraining order against the prisoner). If the proposed sponsor has a current protection or restraining order against the prisoner then temporary release should not be approved.

Note: Such reports can be requested in advance of the prisoner’s eligibility to undertake temporary release.

PS or CPPS report on an applicant where children and/or family may be affected

Guideline: In terms of the agreement dated March 2004, between the Department of Corrections and CYF, PS or CPPS may request information held by CYF from CYF.

Information may be requested to the extent that it is, or may be, relevant to the proposed activity for which an application for temporary release has been made, or the address at which the prisoner proposes to reside during that temporary release and includes:

• information about a prisoner’s domestic situation, child custody and child access rights;
• information about any relevant court orders or convictions relating to a child or young person in respect of a prisoner;
• information about any safety and welfare issues in relation to children or young persons who live at a residence where a prisoner applying for a temporary release is proposing to be accommodated; and
• information about a female prisoner regarding her suitability as a caregiver where the prisoner is due to, or has recently given birth.

PS or CPPS report on a pregnant applicant

Guideline: If a prisoner is pregnant and has made an application for temporary release to either give birth to the child, or to visit the newborn child, then PS or CPPS, at the discretion of the Prison Manager, is to be asked to provide a report on the suitability of the proposed sponsor as well as the proposed address where the prisoner intends to reside during her temporary release.

PS or CPPS report regarding seriously ill applicants

Guideline: If a prisoner who is seriously ill and unlikely to recover has made an application for temporary release for the remainder of his or her sentence, then PS or CPPS, at the discretion of the Prison Manager, is to be asked to provide a report on the suitability of the proposed sponsor and residence.

Conditions of temporary release

Driving vehicles

Guideline: A condition should be imposed on any prisoner approved for temporary release that a prisoner not drive any motor vehicle, whether their own, or otherwise, while on temporary release other than in an emergency situation.

An example of an emergency situation is where a prisoner, or a prisoner’s child, or those with whom a prisoner may be staying, requires medical treatment and no other person is reasonably available to drive to that medical treatment and no other transport is reasonably available.

If a prisoner is released to work approval can be given for them to drive.

Contact with victims

Guideline: Conditions should be imposed on all prisoners approved for temporary release to ensure that prisoners make no contact of any kind with their victim(s), unless the victim(s) has specifically agreed in writing prior to the prisoner being temporarily released.

Non-association

Guideline: Conditions should be imposed on all prisoners approved for temporary release that include the requirement to adhere to any non-association orders or conditions imposed at sentencing, or such other similar conditions as are appropriate, such as non-association and non-involvement with known criminals and / or gangs.

Alcohol and drugs

Section 130(1) and reg. 145: Conditions should be imposed on all temporary releases to forbid the possession, and / or consumption, and / or use of alcohol and / or drugs (excluding medicines prescribed by a medical officer to a prisoner). Any such use of the above is an offence.

The temporary release and removal random testing programme established by regulation 145 of the Corrections Regulations 2005 applies to any prisoner who has been on temporary release and who has not served more than 14 days since returning to prison after the expiry of the temporary release period.

Monitoring compliance

Section 63(2) and Guideline: The sponsor must oversee a prisoner’s behaviour on a temporary release.

The Prison Manager should, in consultation with any sponsor, monitor a prisoner’s behaviour during the temporary release for compliance with the conditions imposed.

If the Prison Manager has any concerns about a prisoner’s behaviour the Prison Manager should direct the prisoner to return to the prison.

Protection orders

Guideline: Conditions should be imposed on a prisoner approved for temporary release to ensure that the prisoner makes no contact with the person or persons who have a protection or restraining order for which the prisoner is the respondent.

Advice to victims

Section 35(1) of the Victims’ Rights Act 2002: Where a victim notification request by a registered victim is active against a prisoner, the victim must be advised of any impending temporary release in accordance with PPM A.15 Victim Notification.

Prisoners to be deported

Guideline: If the prisoner is subject to a deportation order or removal order, then the Police and the New Zealand Immigration Service should be consulted about any application by that prisoner for temporary release.