Holding offenders to account

Corrections is responsible for ensuring that offenders comply with their sentences and orders, and to hold offenders to account when they do not. Fundamental to holding offenders to account is the use of prosecutions as part of our established approach for staff who manage offenders on community based sentences and orders in the community. This approach includes:

Building strong working relationships through active engagement with the offender, their whanau and communities
Holding offenders to account for non-compliance with their community based sentences and orders, and
The use of prosecutions including, outlining the importance of transparency in the role of Corrections as a prosecutor.

This policy is available internally for staff as well. Internally this policy is supported by the integrated practice framework, providing staff with further detailed guidance to support their work in holding offenders to account.

Overall approach to holding offenders to account

Corrections’ key priority is community safety, which includes our role in reducing the risk of harm an offender poses to that same community. This means that we need to balance supporting offenders to comply with their sentence and holding them to account with an appropriate level of response across all community-based sentences and orders.

By effectively holding offenders to account we contribute to the justice sector outcome of safer communities and the overall outcome of a safer New Zealand. Along with public safety, we hold offenders to account to:

ensure the integrity of sentences and orders;
deter others from being non-compliant;
assist in an offender’s rehabilitation and reintegration; and
enable confidence in Corrections’ ability to uphold community sentences and orders in the minds of the judiciary, the sector and the wider community.

We promote the offender’s compliance and reduce barriers to non-compliance

Offender compliance is critical to the integrity of sentences and orders imposed by the judiciary. We do everything we can to facilitate offender compliance. To do this we promote the benefits of compliance, create a compliance focused environment and endeavour to establish a positive working relationship with the offender.

Compliance is influenced by motivational strategies, including early establishment of a good working relationship with the offender, whanau and their support people. By being offender centric we take into account an offender’s circumstances and where appropriate promote flexibility in consideration of issues like childcare and employment commitments.

Probation officers can recognise any factors that contribute to non-compliance and respond to these to minimise the offender’s risk of harm to others and promote their future compliance with their sentence/order.

If non-compliance occurs, where possible we re-engage the offender after their non-compliance. Re-engaging the offender helps us to keep the offender compliant in the future and helps to maintain our ability to assess and manage risk they may pose to the community.

We respond to all instances of non-compliance

We respond to all instances of non-compliance to uphold sentence integrity, maintain public safety and promote the offenders compliance with their sentence or order

Sentence/order integrity is upholding the purpose and intent of the particular sentence or order set in legislation and imposed by the court or New Zealand Parole Board, while operating in line with our purpose, policies and procedures.

We match the level of response with the level of non-compliance:

We use professional judgement to determine the most appropriate response to non-compliance. We always have a rationale for responding in the way that we do and consider the offender’s current risk, their escalating risk, sentence integrity and public safety. We approach our consideration of non-compliance in an offender centric way, taking into account what we know about the offender and their circumstances when making a professional judgement. However, public safety is paramount when responding to non-compliance.

Where appropriate we use alternative responses for non-compliance, other than prosecution or recall. The alternatives we use are efficient and effective in their own right, they uphold sentence integrity and discourage future non-compliance whilst ensuring continued engagement with sentence/order. Sanctions are an effective tool for resolving and addressing non-compliance which require a response, but when considered against the public interest test, the offending (non-compliance) does not warrant prosecution and it is considered that a more effective long-term outcome can be achieved using an alternative.

To ensure that the level of response matches the instance of non-compliance we consider:

the type of non-compliance that has been identified
the risk the offender poses
the imminence of offender’s likelihood of reoffending and risk of harm to self and others
what we are trying to achieve with the response to non-compliance
the response to any previous non-compliance and what the outcome of this was
whether the non-compliance part of a larger pattern in terms of their history of non-compliance
how the factors that contributed to the non-compliance and barriers to compliance can be addressed
how can whanau, family and key supports be involved to assist the offender to comply with their conditions in the future.

The role of prosecutions in holding offenders to account

Prosecution is one of the most serious responses that we can take in response to an offender’s non-compliance with their sentence or order. This involves us laying a charge against the offender for breach of the conditions of their sentence or order.

Our court officers are in court to undertake a variety of activities on behalf of Corrections including providing advice and information to the court to inform sentencing decisions, recording requests for advice, arranging for and undertaking reports to be completed on the day, recording sentencing outcomes and progress of Corrections related matters. They also appear as the prosecution authority for breaches and applications filed by Corrections. These resources are generally required to be at the court on any given day and when appropriate their role includes undertaking prosecutions on behalf of the Department. Combining these roles is an effective use of resources in the court environment.

While we do not employ staff who are specifically or solely prosecutors, we provide our court officers with the right information and training to confidently and professionally represent Corrections in this environment.

On occasions, when considered appropriate, the department requests assistance from the crown solicitors to undertake prosecutions. In all other cases, the prosecution is undertaken by probation officers who service the court in their area.

Gather sufficient evidence

As part of the decision making process as to whether to take legal action, the probation officer must be able to provide sufficient Evidence Act 2006 compliant evidence to satisfy the court that all the elements of the charge of non-compliance is proved beyond reasonable doubt.

The probation officer must be sure that there is credible evidence available to prove every element of the charge, and that this evidence is sufficient to satisfy a Judge.

Make an independent decision to prosecute

The decision to prosecute an offender for not complying with their sentence or order is viewed as a serious form of action by us and by offenders. The decision whether to take legal action to hold the offender to account is a key professional decision for probation officers in the management of offenders and guidance is provided to staff regarding making this decision is supported by processes to lay breaches and applications in court. Probation officers make the decision to prosecute an offender on a community based sentence or order independently and free from political or public pressure.

Prosecutions ought to be initiated or continued only where the prosecutor is satisfied that the prosecution is in the public interest - the public interest test. Once Corrections is satisfied that there is sufficient evidence to provide a reasonable prospect of conviction, the next consideration is whether continuing with the prosecution is in the public interest.

While probation officers are responsible for making the decision to prosecute, this decision is reviewed by their line manager before the charge is filed in court.

Current structure within Corrections means that the probation officer who investigates and commences the prosecution is the probation officer who manages the offender in the community.

Any consideration of withdrawing a prosecution once these decisions have been made, needs to done carefully. This discussion should involve the probation officer managing the offender, the service manager and the probation officer acting in the role of prosecutor. Clearly this decision can take some time and therefore in normal circumstances, this should not occur during a court sitting.

On occasion pressure can be placed by defence counsel or the court on probation staff to make this decision in isolation without sufficient time to consider all factors. Therefore it is recommended that the court officer should request a short remand to give appropriate consideration to the case. It is noted that in some cases, this consideration may occur before the hearing.

Should there be any disagreement between the staff involved in making the decision to either commence or continue a prosecution, probation staff can approach and discuss the case with an independent service manager, a practice leader or the operations helpdesk.

Corrections is committed to complying with the prosecution guidelines released by Crown Law. These guidelines are intended to assist all prosecuting authorities to ensure that the prosecution principles and practices in New Zealand are nationally consistent. These guidelines are on the Crown Law website.

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. It is therefore important that the decision to withdraw a breach charge is not taken lightly.

Seek a meaningful outcome

Part of the decision making process when considering whether to prosecute an offender is to take into account what the purpose of that action would be. Our staff need to be satisfied that there will be a meaningful outcome from the court. When providing guidance to the court on possible sentencing outcomes resulting from the breach action, the probation officer must take into account the combination of sentences provided for in legislation and the effect of cumulative and concurrent sentences.

This means that when we do prosecute an offender the outcome of the prosecution is meaningful and is aligned to our purpose. Prosecuting charges effectively means that the outcome of the prosecution is much more likely to be a deterrent for future non-compliance (with this offender, or from within the community). We also consider the purposes and principles of sentencing that the court must take into account, including the use of the least restrictive sentence possible. These purposes and principles are defined in sections 7 and 8 of the Sentencing Act 2002.

When sentencing the offender on a breach, the court must give consideration to:

sentence/order type
reason for breach action such as seriousness of non-compliance
history of non-compliance with current sentences
guidance provided by probation officer or senior community work supervisor in oral information, such as requesting conviction and discharge.

There are a number of possible results which may arise from a successful breach action. This could be, depending on the original sentence:

conviction and discharge without further penalty
discharge without conviction
a fine
community work
community detention to a maximum period of 6 months
supervision or intensive supervision (but not both)
home detention
imprisonment.