Indeterminate Sentencing

preventative detention (s87)

to protect the community from those wjo pose a significant and ongoing risk to the safety of its members (87(1))

imposed at

sentencing hearing in the High Court

Concurrent

all sentences are served at the same time

Cumulative

sentences occur one after another

Parole threshold

if person is serving more than two years they can apply for parole

If Parole Board declines parole, the board must

specify a date to be considered again (s 21A Parole Act)

Criteria for PD:

qualifying offence, over age 18 and likely to commit another qualifying offence if the person is released at sentence expiry date → then DISCRETION to impose

Can PD be imposed at first offence

Yes, this change came in 2002

R v Cooper [202] NZCA

“when looking if they are likely to offend you are looking at the date of release”

If PD is imposed…

judge must set minimum period of imprisonment to allow offender to apply for parole

NZBORA issue with PD

right to be presumed innocent and not to be arbitrarily detained

PD assumes rehabilitation in prison …

is NOT effective (problem)

R v Cooper [2020] NZCA facts

asked to be given a chance for rehabilitation and PD was removed

R v King [2019] facts

had chance for rehabilitation twice before so PD was applied

Elements met for PD justified under NZBORA

in accordance with principles of Sentencing Act and there are legitimate and compelling public protection grounds as the restriction is proportionate to the risk which is regularly reviewed by the court

Miller v NZ [2017]

PD may be in breach of ICCPR

ESO is found in this legislation

107A-Z Parole Act 2002

When is ESO imposed

later in sentence (last six months)

Why is ESO imposed

the people that are with them daily believe this person WILL reoffend

Psychiatric Nurse Niel Pugmire Quote

“I know these people. They are not capable of controlling …their own actions and will almost certainly reoffend if not returned to custody.”

People of concern from 1980’s

Barry Allan Ryder and Lloyd Alexander McIntosh

Relevant Offences for sexual or violent offences for ESO

section 107B Parole Act

Tony Ryall (National) 2004 Parliament debate quote

“an ankle bracelet will not stop a paedophile abusing or sexually molesting a child”

NZBORA Issues with ESO

Retrospectively and Double Jeopardy

PPO is found in (legilsation)

The Public Safety (Public Protection Orders) Act 2014

What is PPO

regime for people reaching end of prison sentence for violent or sexual offending who pose a very high risk of reoffending immediately

Hon Judith Collins (PPO debate)

“this bill will improve public safety and save potential victims”

Sue Moroney (Labour: PPO debate)

“this bill is for the purpose of getting in front of all that and actually putting in some legislative and policy measures that would actually stop the hurt from happening in the first place'“

Objective of PPO

4(1) to protect members of the public from almost certain harm that would be inflicted by the commission of serious sexual or violent offenders

NOT the objective of PPO

2 it is not an objective to punish persons whom orders are made under this act

Living under a PPO

on prison grounds away from main population of prisoners - but still behind a big fence

NZBORA issues with PPO

Retrospectively and Double jeopardy AND arbitrary detainment on prison grounds

Hon Phil Goff (Labour: PPO debate)

“this boll is not about punishment, it is actually about protecting the community”

Hon Judith Collins (PPO debate about NZBORA issues)

“Detention under this bill is civil in nature”

Why is PPO civil rather than criminal

A civil regime is not subject to the NZBORA

Attorney - General Report on NZBORA issues with PPO

bill is not inconsistent with NZBORA because it is classified as civil

LAWCOM REPORT: issues with current regime (legislation)

fragmented across three legislation which limits consistency

LAWCOM REPORT: issues with current regime (HR)

Human rights issues seen throughout the bill and debates

LAWCOM REPORT: issues with current regime (risk)

time of risk assessment (for PD) is too early and presumes rehabilitation is not possible

LAWCOM REPORT: issues with current regime (tikanga)

Tikanga and ToWis not recognised or give effect to our obligations to them

LAWCOM REPORT: issues with current regime (omissions)

strangulation and suffocation are not qualifying offences under current regime