foreword - thomson reuters · sample. author david mather ba llb(hons) (auck), llm (queen’s, ......

http://www.thomsonreuters.co.nz/parole-in-new-zealand-law-and-practice-book/productdetail/124904

FOREWORD

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An effective parole system, providing for release into the community of prisoners who are assessed as not being an undue risk to society, is or should be an integral feature of a civilised society. Parole reduces crime. International research clearly shows that managed parole after release, subject to the ability for an inmate to be recalled to prison, is three to four times more effective in preventing reoffending than releasing a prisoner at the end of the sentence. Without parole, on conditions and supervision, many prisoners would remain untreated or unmotivated to engage in programmes to reduce their risk, so upon release at the end of their sentence they would not be rehabilitated and would invariably return to criminal behaviour.The concept and workings of parole and the New Zealand Parole Board have not been widely understood by many, whether prisoners, members of the public, professions, victims or the media.This timely publication by His Honour Judge David Mather is an overdue and comprehensive exposition of the many facets of the parole system, relevant legislation and workings of the New Zealand Parole Board. It will prove to be a valuable aid to all involved in the criminal justice area, whether they be prisoners, victims, lawyers, judges, probation officers, corrections and prison management or the general public.As Chair of the New Zealand Parole Board, I welcome this valuable publication and commend Judge Mather on his scholarly and comprehensive work.

Hon J W Gendall QC, CNZMChairmanNew Zealand Parole BoardMarch 2016

Extract from "Parole in New Zealand" - www.thomsonreuters.co.nz


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AUTHOR

David Mather BA LLB(Hons) (Auck), LLM (Queen’s, Ont)

David Mather graduated BA, LLB(Hons) from Auckland University in 1972, andwas that year admitted to the bar as a barrister and solicitor. He then completed anLLM at Queen’s University, Ontario, writing a thesis on the disciplinary decision-making process in one of Canada’s federal penitentiaries.

After returning to New Zealand in 1974 he practised as a solicitor in a number offirms until 1986, when he set up practice as a barrister sole in west Auckland.Among his professional interests were prisons and penal reform, and from 1990–1995 he chaired a trust which provided halfway house accommodation for releasedprisoners.

In 1997 he was appointed a District Court Judge, with general and Family Courtwarrants. Until 2012 he sat primarily in the Family Court, and since then has sat inthe summary criminal jurisdiction.

In 2012 Judge Mather was appointed a member and panel convenor of the NewZealand Parole Board.

He is married with three children and eight grandchildren. Apart from family hismain interest is his enthusiasm for the outdoors.

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David Mather BA LLB(Hons) (Auck), LLM (Queen’s, Ont)David Mather graduated BA, LLB(Hons) from Auckland University in 1972, and was that year admitted to the bar as a barrister and solicitor. He then completed an LLM at Queen’s University, Ontario, writing a thesis on the disciplinary decisionmaking process in one of Canada’s federal penitentiaries.After returning to New Zealand in 1974 he practised as a solicitor in a number of firms until 1986, when he set up practice as a barrister sole in west Auckland.

Among his professional interests were prisons and penal reform, and from 1990–1995 he chaired a trust which provided halfway house accommodation for released prisoners.In 1997 he was appointed a District Court Judge, with general and Family Court warrants. Until 2012 he sat primarily in the Family Court, and since then has sat in the summary criminal jurisdiction.In 2012 Judge Mather was appointed a member and panel convenor of the New Zealand Parole Board.He is married with three children and eight grandchildren. Apart from family his main interest is his enthusiasm for the outdoors.



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PREFACE

Soon after I joined the Parole Board in July 2012, it became apparent to me thatworking in the parole jurisdiction was quite different to my previous work as a lawyerand a judge for nearly 40 years. And there was no concise textbook or similarpublication on the parole system in New Zealand which I could turn to for assistance.So this book has been written to fill that gap.

From the outset I was encouraged to write the book by the chairman of the NewZealand Parole Board, the Hon Warwick Gendall QC, who has also been kind enoughto write a foreword. The manager and staff at the Parole Board Wellington officeshave also greatly assisted by giving me access to material they hold, in particular theirlegal files and statistics.

I have tried to write in a way which explains the parole process to as wide a readershipas possible. Without attempting an exhaustive list, those who I anticipate might makeuse of this resource include Parole Board members and staff, probation officers,prison officers and other Department of Corrections staff, lawyers, university lawfaculty staff and law students, victims and victim organisations, the police, andprisoners and those who advise them. Overseas bodies such as parole authorities andlaw schools may also find this a useful outline of the New Zealand parole regime.

Since the Parole Act 2002 was enacted, a number of cases have come before the HighCourt and Court of Appeal, and a few have continued to the Supreme Court. I haveattempted to include reference to all cases of any precedent value, and to coverprinciples and rulings from these cases. Over that 13-year period the litigation ofparole issues has not been particularly extensive. Most cases have focused on threetopics, namely recall to prison, judicial review of Parole Board decisions, and the writof habeas corpus, as well as some other procedural issues.

A number of people have readily offered me their assistance with this book. FellowParole Board members Rhonda Pritchard and Neville Trendle made helpfulcomments, and the Parole Board’s solicitor Vicki Owen went through the draft textin detail and suggested a number of changes. I was particularly assisted by Paul Gruar,a lawyer with extensive experience in the mental health area, and by Gary Wyatt, acompulsory care coordinator, with the challenging chapter on mental health andintellectual disability. Identifying all relevant court decisions on parole, both reportedand unreported, was very conscientiously undertaken for me by my research counselKate Macey. I thank all these people for their valued assistance.

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PREFACE

Some details of prison programmes and statistical material concerning prisons andparole are available from the Department of Corrections website. However, I neededa good deal more, and was greatly assisted by Beith Atkinson and other legal staff atthe Department for much of what is included in the book in that regard, and I extendmy thanks to them too.

My personal assistant Odette Pepers, also a lawyer, did much of the typing and offeredhelpful comments. The Parole Board chairman also provided valuable feedbacktowards the end of the draft stage.

As a neophyte author I have been reliant on guidance from the Thomson Reutersstaff from the outset. Working with them has been a pleasure. The commissioningeditor Ian McIntosh has been helpful throughout, as have others in the later stages,in particular the production editor Kevin Leary.

I have included material and resources available to me as at 30 November 2015, orin some cases up to 31 March 2016. Full responsibility for errors and omissions must,of course, rest with me.

David MatherApril 2016

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Foreword ..................................................................................................................................... vAuthor ...................................................................................................................................... viiPreface .......................................................................................................................................ix

Chapter 1 History of Parole in New Zealand ................................................................. 1Chapter 2 Parole Act 2002 ................................................................................................ 5Chapter 3 Eligibility for Parole ......................................................................................... 9Chapter 4 Consideration for Parole ................................................................................15Chapter 5 Criteria for Release on Parole ........................................................................ 23Chapter 6 Information for Parole Hearings .................................................................. 27Chapter 7 Release of Information to Offenders ........................................................... 35Chapter 8 The Parole Hearing ........................................................................................41Chapter 9 Assessing Risk: Structured Decision-Making ............................................... 51Chapter 10 Mental Health and Intellectual Disability ..................................................... 59Chapter 11 Release and Conditions of Release ............................................................... 75Chapter 12 Deportation Orders and Extradition ............................................................ 89Chapter 13 Victims ............................................................................................................91Chapter 14 The Prison Network .......................................................................................99Chapter 15 Programmes in Prisons ................................................................................107Chapter 16 Reviews and Appeals ....................................................................................115Chapter 17 Recall to Prison .............................................................................................125Chapter 18 Extended Supervision Orders and Section 107 Orders ............................ 133Chapter 19 The Media and the Public Interest ..............................................................141

Appendix 1 Parole Act 2002 ............................................................................................147Appendix 2 Prison Statistics (as at 31 December 2014). ............................................... 293Appendix 3 Prison Network ............................................................................................299Appendix 4 Glossary of Abbreviations ..........................................................................301Appendix 5 Risk Assessment Tools .................................................................................305Appendix 6 Security Classification Placement Summary ............................................... 311Appendix 7 Resources. .....................................................................................................313

Table of Statutes and Regulations ............................................................................... .............315Table of Cases ....................................................................................... .................................323Subject Index..................................................................... ......................................................325

ContentsCONTENTS

Foreword.........................................................................................................................................................................................................................v

Authors.........................................................................................................................................................................................................................vii

Preface.............................................................................................................................................................................................................................ix

Contents.........................................................................................................................................................................................................................xi

Chapter 1 Introduction................................................................................................................................................................................1

Chapter 2 The 2015 Act.............................................................................................................................................................................21

Chapter 3 Application of the Act........................................................................................................................................................51

Chapter 4 Person Conducting a Business or Undertaking (PCBU)...........................................................................79

Chapter 5 Workers under the 2015 Act............................................................................................................................................99

Chapter 6 Inspectors and Health and Safety Medical Practitioners........................................................................121

Chapter 7 Investigations........................................................................................................................................................................145

Chapter 8 Courts, Offences and Enforcement........................................................................................................................165

Chapter 9 Sentencing...............................................................................................................................................................................191

Chapter 10 Regulations........................................................................................................................................................................211

Chapter 11 Specific Industries.........................................................................................................................................................225

Table of Statutes and Regulations.........................................................................................................................................................................249

Table of Cases...........................................................................................................................................................................................................257

Subject Index.............................................................................................................................................................................................................261

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Chapter 11

RELEASE AND CONDITIONS OF RELEASE

11.1 Date of release............................................................................................................................................75

11.2 Revocation or amendment of release direction..............................................................75

11.3 Standard release conditions............................................................................................................76

11.4 Special release conditions.................................................................................................................77

11.5 Residential restrictions (RR)..........................................................................................................80

11.6 GPS monitoring.........................................................................................................................................82

11.7 Monitoring of compliance with release conditions.....................................................83

11.8 Variation and discharge of conditions...................................................................................84

11.9 Short-term sentence imposed on parolee............................................................................86

11.10 Release at statutory release date (SRD)............................................................................87

11.11 When parole ends................................................................................................................................88

11.1 Date of releaseWhen the Board decides to release an offender on parole – a discretionary decision– it issues a direction for release.1 The day of release must be specified, being a dateno later than six months after the hearing at which the decision to release is made.2The release date cannot be a “non-release day”,3 which is defined as includingThursday to Sunday, statutory holidays and local anniversary days.4 In exceptionalcircumstances release may occur on a Thursday or Friday.5 Usually a release date willbe fixed 7–14 days after the hearing, to allow for administrative steps to occur pre-release.

11.2 Revocation or amendment of release directionWhen the Board directs the release of an offender on parole, at any time prior toactual release it may revoke or amend the direction for release.6 No guidance as tohow this discretion can be exercised is provided in the Act. This generally occursbecause of some event between (1) the hearing and decision to release on parole and(2) the offender’s actual release a week or more later.

1 Parole Act 2002, s 28(1).2 Parole Act 2002, s 28(3)(a).3 Parole Act 2002, s 28(3)(b).4 Parole Act 2002, s 4(1), definition of “non-release day”.5 Parole Act 2002, s 28(4).6 Parole Act 2002, s 28(5).

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Examples of the grounds for revocation include the approved release address nolonger being available, or an incident in the prison involving the offender inmisconduct of some kind, or other information coming to the attention of the Boardof an adverse nature which raises concerns for the safety of the community if theoffender was released as initially proposed.

The Board can also amend a release direction by varying the release conditions. Again,this may be sought after fresh information is brought to its attention by theDepartment. This and the power to amend conditions at a monitoring hearing7 arethe only opportunity for the Board, of its own motion, to revisit release conditions,in contrast to the ability of offenders or probation officers to apply for variation.8

If the Board revokes or amends a direction for release, it must hold another parolehearing “as soon as practicable”.9 In practice this will occur within a month orthereabouts, when a Board panel is next scheduled to hold hearings at the prisonwhere the offender is held.

11.3 Standard release conditionsWhen an offender is released on parole, the nine standard release conditionsautomatically apply.10 For all purposes relating to the imposition of standardconditions, they must be treated as if imposed by the Board, whether explicitly setout in a Board decision or not.11

Offenders who are released at their statutory release date will automatically be subjectto standard release conditions.12

The Board may specify the period for which the standard release conditions are inforce. The minimum period – and the default period if no period is specified by theBoard – is six months. The maximum period is from the date of release until sixmonths after the offender’s statutory release date.13 In practice, the Board will usuallyimpose the standard release conditions until six months after the offender’s statutoryrelease date, unless that date is two or more years after release on parole, in whichcase the standard release conditions may terminate at the statutory release date. Thestandard release conditions must remain in force for the period of any special releaseconditions.14

7 Parole Act 2002, s 29B(5); and see [11.7] below.8 See [11.8] below.9 Parole Act 2002, s 28(5).10 Parole Act 2002, s 14(1); but see [11.4] below.11 Parole Act 2002, ss 14(4) and 29(1).12 Parole Act 2002, s 18(2)(a).13 Parole Act 2002, s 29(2)–(4).14 Parole Act 2002, s 29(4)(a)(ii).

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11.4 SPECIAL RELEASE CONDITIONS

For offenders subject to an indeterminate sentence (life imprisonment or preventivedetention), the standard release conditions apply for the rest of the offender’s life,unless later varied or discharged by the Board under s 58 of the Act.15

11.4 Special release conditionsIn addition to the mandatory standard release conditions, the Board has a discretionto impose special release conditions, both when releasing an offender on parole orwhen fixing conditions at the statutory release date.16 They can be in force for suchperiod as the Board specifies, but not for a longer period than the standardconditions.17

If the Board imposes any special conditions on an offender that it considersincompatible with all or any of the standard release conditions, the Board maysuspend the incompatible release conditions during the period of those specialconditions, and time runs on the suspended conditions during that period.18

While the potential range of special conditions is unlimited, the Act provides aframework for such conditions. They must not be imposed unless designed to:

• reduce the risk of reoffending by the offender;• facilitate or promote the rehabilitation and reintegration of the offender;• provide for the reasonable concerns of victims of the offender; or• comply with an order of the court under s 107IAC to impose an intensive

monitoring condition for an offender subject to an extended supervisionorder.19

Nor can the Board impose release conditions that are more onerous, or last longer,than is consistent with the safety of the community.20 And the Court of Appeal hasreinforced the requirement for the Board to give reasons for the imposition of specialrelease conditions:21

“[18] We agree with the [High Court] Judge that the Board’s lack ofreasons is appropriately treated as a breach of natural justice. Given thestatutory pre-conditions to the imposition of special post-releaseconditions, and the need to give reasons in writing, the Board need notprovide extensive reasons, but it is required to do more than simply referto those conditions or conclude they have been satisfied.”

15 Parole Act 2002, s 29(4)(b); and see [11.8] below.16 Parole Act 2002, ss 15(1), 18(2)(b) and 29AA(1).17 Parole Act 2002, s 29AA(2) and (3).18 Parole Act 2002, s 29AA(4).19 Parole Act 2002, s 15(2). Arguably the Board could impose a condition under s 15(3) that an

offender pay a victim a sum of money, akin to reparation, for physical or emotional harm.20 Parole Act 2002, s 7(2)(a).21 R (CA201/2015) v R [2015] NZCA 165.

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The Act goes on to outline (without limitation) the kinds of conditions that may beimposed as special conditions.22 These include:

• Conditions relating to place of residence, including a specific place of residence.• Conditions relating to finances or earnings.• Conditions requiring the offender to participate in a programme23 to reduce the

risk of further offending through the rehabilitation and reintegration of theoffender.

• Conditions directing the offender not to associate with any person or personsor class of persons.

• Conditions requiring the offender to take prescription medication (but only ifthe offender (1) has been fully advised by a person qualified to prescribe thatmedication about the nature and likely or intended effect of the medication andany known risks, and (2) consents to taking the medication).24

• Conditions prohibiting the offender from entering or remaining in specifiedplaces or areas at specified times or at all times.

• An intensive monitoring condition, which must, and may only, be imposed ifa court orders the imposition of an intensive monitoring condition unders 107IAC (in respect of an extended supervision order).25

The following are examples of special conditions imposed by the Board whereconsidered appropriate:

• To attend for a psychological assessment and complete any treatment/counselling as recommended by the psychologist to the satisfaction of thetreatment provider and the probation officer.

• If assessed as suitable, to attend and complete an appropriate Departmentalprogramme, and attend any relapse prevention group, as directed by theprobation officer.

• To undertake and complete appropriate alcohol and drug treatment/counselling, including a residential programme, to the satisfaction of thetreatment provider and the probation officer.

• To undertake and complete an appropriate family violence programme to thesatisfaction of the programme provider and the probation officer.

• To undertake budgeting advice (with a named budgeting organisation) to thesatisfaction of the probation officer.

• To undertake a parenting course to the satisfaction of the course provider andthe probation officer.

22 Parole Act 2002, s 15(3).23 “Programme” is defined in s 16 of the Parole Act 2002.24 Parole Act 2002, s 15(4).25 See chapter 18.

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11.4 SPECIAL RELEASE CONDITIONS

• To undertake and complete a maintenance programme (following suchprogrammes as the Medium Intensity Rehabilitation Programme (MIRP) orSpecial Treatment Unit Rehabilitation Programme (STURP)).

• To advise the probation officer before taking up or changing employment.• To reside at a stipulated address, or an address subsequently approved, and not

to move from that address without the prior written approval of the probationofficer.

• To abide by a curfew at a stipulated address between certain specified hours.26

• Not to stay away from the approved residence without the approval of theprobation officer.

• Not to enter a defined geographical area without the prior written approval ofthe probation officer.27

• Not to access the Internet or use or possess an Internet-capable device.28

• To attend a whānau hui or other reintegrative meeting, as directed by theprobation officer.

• Not to have contact with or otherwise associate with the victim(s) of theoffending without the prior written consent of the probation officer.

• Not to have contact with named persons, e.g. co-offenders, or with membersor associates of a named gang.

• Not to associate or otherwise have contact with any person29 under the age of16, unless under the direct supervision of an informed adult who has beenapproved by the probation officer in writing. An informed adult is a personover the age of 20 years who is fully aware of the previous offending and high-risk situations, and who in the opinion of the probation officer will not supportor collude with any further offending.30

• (Rarely) to advise the probation officer before entering into an intimaterelationship.31

• (Rarely and with the offender’s consent) not to contact the media.32

26 A non-electronically monitored curfew – compare [11.5].27 This is appropriate for the protection of victims, or to prevent association with known or potential

criminal associates, or in high-profile cases where being in a particular town or district may exposean offender to unacceptable pressure and increase the risk of reoffending or concerns for publicsafety.

28 Appropriate for offenders with a history of breaching protection orders or harassment, or ofoffending involving Internet pornography. It is debatable how realistic such a condition is in anelectronic age. The condition might provide for approved devices, or supervision by an approvedperson.

29 This may be stipulated as either males or females, depending on the persons identified as beingat particular risk.

30 This condition is appropriate for a child sex offender.31 This condition may be appropriate for an offender with a history of sexual or domestic violence.32 This condition may be appropriate where media interest is likely to be high and potentially

destabilising for an offender on parole. See for example Re Pora (Report of the Board and Variationof Conditions) NZPB, 26 September 2014.

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• Not to possess or consume alcohol or non-prescription drugs or drugparaphernalia.33

• To submit to the monitoring of compliance with release conditions, by way ofprogress reports from the probation officer and, if directed, by attendance ata Board hearing as notified in writing.34

There are also two specific conditions available to the Board which include electronicmonitoring. These are (1) residential restrictions35 and (2) whereabouts or GPSmonitoring.36 The distinction has been identified by the High Court in this way:37

“Electronic monitoring is permissible both as a special [parole] conditionand under the residential restrictions regime. The purpose is different,however. The purpose of electronic monitoring imposed as a specialcondition is to monitor compliance with conditions that relate to theoffender’s whereabouts, while the purpose of electronic monitoringunder the residential restrictions regime is to monitor compliance withresidential restrictions.”

11.5 Residential restrictions (RR)38

These are a condition requiring an offender:

• to stay at a specified residence;• to be under the supervision of a probation officer and comply with directions

given by the probation officer;• to be at the residence either at specified times or at all times;• to submit, in accordance with the directions of a probation officer, to the

electronic monitoring of compliance with RR; and• to keep in the offender’s possession their release licence39 and produce it on

request to a police officer or probation officer.40

Full-time RR cannot apply for longer than the standard release conditions apply, orin any event for longer than 12 months, but partial RR at times specified by the Boardcan run for longer.41

33 This is a routine condition for the majority of offenders with a history of alcohol and/or drugabuse or drug-related convictions.

34 See [11.7] below.35 Parole Act 2002, s 15(3)(ab).36 Parole Act 2002, s 15(3)(f).37 Whichman v Department of Corrections [2013] NZHC 3075, (2013) 27 CRNZ 92 at [31]. See also

Mitchell v Chairperson of the New Zealand Parole Board [2015] NZHC 566 at [50].38 Parole Act 2002, ss 33–38.39 Parole Act 2002, s 53.40 Parole Act 2002, s 33(2).41 Parole Act 2002, s 33(3).

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11.5 RESIDENTIAL RESTRICTIONS (RR)

Offenders subject to RR may leave the residence where they are required to resideonly:

• to seek urgent medical or dental treatment;• to avoid or minimise a serious risk of death or injury to the offender or any

other person; or• for humanitarian reasons approved by the probation officer.42

When RR apply 24 hours a day, offenders may leave the residence with the approvalof a probation officer:

• to comply with special release conditions;• to seek or engage in employment;• to attend training or other rehabilitative or reintegrative activities or

programmes;• to attend a restorative justice conference or other process relating to the

offender’s offending;• to carry out any undertaking arising from any restorative justice process; or• for any other purpose specifically approved by the probation officer.43

When imposing RR, the Board’s general practice is to impose them for the immediateperiod of between three and six months following release. Offenders wear a braceletor anklet which is monitored by a monitoring company. An alarm is activated if theoffender breaches their RR during the period they apply.

Before the Board imposes RR, it must obtain a report from the Department as to:

• the nature of the offence(s) for which the offender is imprisoned or haspreviously been convicted;

• the likelihood that RR will prevent further offending by the offender;• the likelihood that the offender’s rehabilitation and reintegration will be assisted

by RR; and• the suitability of the proposed residence, including the safety and welfare of

the occupants of that residence.44

The Department may also, on its own initiative, provide a report on the same matters,which the Board must consider in the same way as a report it has requested.45

In addition, before completing the report the Department must:

• ensure that every relevant occupant46 of the proposed residence is aware of thenature of the offender’s past and current offending;

42 Parole Act 2002, s 33(4).43 Parole Act 2002, s 33(5).44 Parole Act 2002, s 34(1) and (2).45 Parole Act 2002, s 34(1A) and (1B).46 This includes everyone aged 16 or over who ordinarily lives at the family residence, and others if

not a family residence: Parole Act 2002, s 34(4).

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• tell every such occupant that the reason for giving that information is to enablethe occupant to make an informed decision about whether to consent to havingthe offender at that address;

• tell every relevant occupant that the information about the offender must notbe used for any other purpose;

• obtain the consent of every relevant occupant to the offender residing at thataddress; and

• inform every relevant occupant of their right to withdraw their consent, at anytime, to having the offender reside at the residence.47

The Board may only impose RR if satisfied, on reasonable grounds, that:

• the proposed residence is suitable;• the relevant occupants of the proposed residence understand the RR that will

apply, consent to the offender residing at the residence, and have been informedof their right to withdraw that consent at any time; and

• the offender is aware of and understands the RR, and agrees to comply withthem.48

The address where an offender resides subject to RR can be changed, by applicationto the Board to vary that special release condition.49 Pending the determination ofsuch an application, the Department may approve an alternative interim address.Either the offender or a probation officer can apply for variation. If the Departmentconsiders there to be no suitable alternative residence, a probation officer must applyfor variation at the earliest opportunity, or apply for the offender’s recall.50

Clearly, from time to time situations will arise where an address to which an offenderis released on parole and subject to RR will no longer be available or suitable, eitherbecause the other occupants withdraw their consent, or because the ownership ortenancy arrangements change, or because for some other reason the offender or aprobation officer considers the address to be unsuitable. The Act provides, asindicated, for appropriate steps to be taken promptly to address that situation.

11.6 GPS monitoringThe purpose of a special condition requiring the offender to be electronicallymonitored by way of GPS is to monitor their whereabouts at any given time, and todeter the offender from breaching those conditions relating to their whereabouts.51

Such a condition will generally be imposed in situations where the Board wantsCommunity Probation to keep track of an offender generally, and in particular

47 Parole Act 2002, s 34(3).48 Parole Act 2002, s 35; and see [11.8] below.49 Parole Act 2002, s 56.50 See s 36 of the Parole Act 2002 for rules relating to an alternative residence while an application

to vary RR is pending.51 Parole Act 2002, s 15A(1).

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11.7 MONITORING OF COMPLIANCE WITH RELEASE CONDITIONS

exclude the offender released on parole from going into certain places or definedgeographical areas, either within a specific town or region or a part of thecountry.52 This may be to reduce the risk of contact between an offender and victims,or potential victims (e.g. children at risk from a sex offender), or to prevent associationbetween an offender and associates like gang members which might increase the riskof reoffending.

Sophisticated technology – which involves wearing an electronic bracelet or anklet –enables an offender who is subject to GPS restrictions to be tracked at all times.Before imposing such a special condition, the Board will be mindful of the limitationon the imposition of special conditions in s 15(2).53 Such a condition inevitablyinvolves a degree of limitation of the rights of the offender under the New ZealandBill of Rights Act 1990, including freedom of association, freedom of movement andthe right to liberty. Provided the restrictions in s 15(2) of the Parole Act are satisfied,a court on judicial review will be unlikely to find such restrictions to be in breach ofthe New Zealand Bill of Rights Act.54

11.7 Monitoring of compliance with release conditionsIf satisfied because of the “special circumstances of an offender” that it is desirablefor the Board to do so, it may impose a special condition of parole that the offender’scompliance with release conditions imposed be monitored.55 The Board may monitorcompliance for up to 12 months from the date of release if the offender is releasedon parole or compassionate release, or up to six months from the date of release ifthe offender is released at the statutory release date.56

The monitoring can occur by way of either or both:

• a progress report from the Department on the offender’s compliance with theconditions; and/or

• a hearing attended by the offender following written notification.57

The hearing will be conducted in accordance with any directions given by the Board.The requirements as to the information to be disclosed to an offender prior to routineBoard hearings apply, but many of the other provisions relating to hearings donot.58

52 Parole Act 2002, s 15(3)(e).53 See [11.4] above.54 Wilson v New Zealand Parole Board [2012] NZHC 2247 at [61]–[66].55 Parole Act 2002, s 29B(1).56 Parole Act 2002, s 29B(7). The Board may monitor compliance on one or more occasions, but

not more frequently than once every three months: s 29B(3). The first monitoring may be fixedquite soon after release, e.g. after one or two months. The Board is entitled to be actively involvedin monitoring offenders released on parole, given that public safety is the paramountconsideration : Miller v New Zealand Parole Board (2008) 24 CRNZ 104 (HC) at [136].

57 Parole Act 2002, s 29B(2).58 Parole Act 2002, s 29B(4).

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If a monitoring hearing is held, attended by the offender, the Board may:

• vary any special conditions previously imposed;• impose new special conditions; and/or• if the offender is on parole or compassionate release and the Board is satisfied

that grounds exist for the making of an interim recall order, make an orderhaving the same effect as an interim recall order.59

The rules relating to receipt of information and available orders on variation ordischarge of conditions, as well as the consequences of the making of an interim recallorder, apply in such cases.60

11.8 Variation and discharge of conditionsEither an offender or a probation officer may at any time apply to the Board for thevariation or discharge of any release conditions.61 “Variation” is defined in s 4(1) ofthe Act as including the suspension and addition of conditions, as well as the variationof their duration.

The written application must indicate whether or not the offender wishes to appearbefore the Board to state his or her case.62 When a probation officer applies forvariation or discharge, the officer may suspend the condition in question until theapplication is determined.63 This does not apply to standard release conditionsimposed on offenders subject to an indeterminate sentence.64

Before determining any such application, the Board may seek information fromanyone it considers has, or may have, an interest in the application, such as the policeor any victim of the offender.65 Section 13, relating to information to be given to orwithheld from offenders, applies to the hearing of applications for variation ordischarge.66

The Board may deal with an application for variation or discharge without a formalhearing unless:

• the offender has asked to appear before the Board to state his or her case; or• the Board wishes to hear from any person orally.67

59 Parole Act 2002, s 29B(5).60 Parole Act 2002, s 29B(6).61 Parole Act 2002, s 56(1) and (2). This includes in the period between a decision to release and the

actual release date.62 Parole Act 2002, s 56(3).63 Parole Act 2002, s 56(4).64 Parole Act 2002, s 56(5).65 Parole Act 2002, s 57(1).66 Parole Act 2002, s 57(2).67 Parole Act 2002, s 57(3).

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11.8 VARIATION AND DISCHARGE OF CONDITIONS

In practice, many applications dealing with routine matters such as a change ofaddress, or other uncontroversial changes where the offender consents in writing,will be dealt with on the papers. On the other hand, applications to vary conditionsby adding one or more conditions which might have a quite onerous or restrictiveeffect on an offender may well result in a formal substantive hearing similar to routinehearings of the Board.

The Board may direct the variation or discharge of any release condition applying toan offender. However, the Board may not:

• extend the duration of any release condition to a date later than six monthsafter the offender’s statutory release date;

• extend the duration of any special condition beyond the date on which thestandard release conditions cease to apply; or

• discharge standard release conditions with effect from a date that is less thansix months after the date on which the offender was released, unless theoffender is released on compassionate release or was, at the time of release,detained in a hospital or secure facility.68

On an application to vary conditions the Board may be invited, or consider itappropriate, to impose additional and/or more onerous conditions than apply at thetime, e.g. electronic monitoring or a curfew. No challenge to such a decision, if made,appears to have been brought before the High Court. It could be argued that thiswould have the effect of extending the sentence and thus be in breach of the NewZealand Bill of Rights Act.69 However, it is submitted that the better view is that thewide powers to both impose and then vary conditions, including the extension andaddition of conditions,70 include the power to impose conditions considered moreonerous provided that the Board complies with s 15(2).71 The High Court has alsomade it clear that on offender on parole is still serving the original sentence, albeit inthe community rather than in prison.72

If the Board exercises its power to revoke or amend a direction that on offender bereleased on parole – by varying a condition of release – before the offender is actuallyreleased, it would then have to schedule another parole hearing.73

Where the Board refuses to make a final recall order, it may vary or discharge anyrelease conditions in force without the need for a fresh variation application.74

68 Parole Act 2002, s 58(2) and (3).69 Section 22 of the New Zealand Bill of Rights Act 1990 provides a right not to be detained

“arbitrarily”, i.e. unlawfully; compare s 5 (“Justified limitations”).70 Parole Act 2002, s 4(1), definition of “variation” and s 58(2).71 See Wilson v New Zealand Parole Board [2012] NZHC 2247 for a wide-ranging challenge to the

imposition of special conditions.72 King v Parole Board (2007) 22 CRNZ 917 (HC) at [21].73 Parole Act 2002, s 28(5).74 Parole Act 2002, s 66(4).

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If release conditions are varied or discharged, notice must be given to the offender,the probation officer involved, the police, and (if reasonably practicable) any victimto whom notice of the original conditions was given.75

Release conditions for all offenders released on parole who are serving determinatesentences are discharged:

• when the period for which they were imposed expires;76

• if the offender returns to prison under a new sentence;77

• if the Board does not specify a period, after six months;78 or• when the Board discharges all release conditions.79

Standard release conditions for offenders serving indeterminate sentences who arereleased on parole are in force for the rest of their lives, unless varied ordischarged.80 Special release conditions for such offenders will be in force for theperiod that the Board specifies.81

11.9 Short-term sentence imposed on paroleeIf an offender, while released on parole, is sentenced to a concurrent short-termsentence82 which has a release date before the offender’s statutory release date, then(unless recalled) the offender must be released from detention on the release date ofthe short-term sentence.83 This does not apply if short-term sentences are imposedcumulatively, resulting in a notional single sentence which is a long-term sentence.84

If an offender is released under this provision, the Board may specify the period forwhich standard conditions are in force, and may impose special conditions as well,but the actual release date is determined under ss 51(2) and 52.85 If the release occursbefore the Board has made the foregoing determination, then any release conditionsin force when that short-term sentence was imposed are deemed to have beenreimposed.86

75 Parole Act 2002, s 58(4).76 Parole Act 2002, ss 29(4)(a)(i), 29AA(2) and 31(1)(a).77 Parole Act 2002, s 31(1)(b).78 Parole Act 2002, s 29(4)(a)(iii). By virtue of s 29AA(3), special conditions cannot remain in force

for longer than standard release conditions.79 Parole Act 2002, ss 31(1) and 58.80 Parole Act 2002, ss 29(4)(b) and 58.81 Parole Act 2002, s 29AA(2). In practice they are often imposed for five years following release.82 This is a sentence of 24 months or less: Parole Act 2002, s 4(1), definition of “short-term

sentence”.83 Parole Act 2002, s 19(1). This will be after the offender has served half that sentence: s 86(1).84 Parole Act 2002, s 19(3).85 Parole Act 2002, s 19(4).86 Parole Act 2002, s 19(5).

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11.10 RELEASE AT STATUTORY RELEASE DATE (SRD)

11.10 Release at statutory release date (SRD)Offenders who serve their full sentence and are released at their SRD will, in the sameway as offenders released on parole, be subject to the standard release conditions. Intheir case, these conditions will extend for six months beyond the SRD.87

Similarly, they can be subject to special release conditions imposed by the Board forup to six months beyond the SRD.88

When the Board declines release on parole close to an offender’s SRD, it will schedulea further hearing one to two months before that date. This will be to consider eitherrelease on parole for the short time remaining on the sentence, or to impose releaseconditions. If the Board holds a hearing solely to impose special release conditionsunder ss 18 or 19 of the Act, the Board may conduct the hearing without hearingfrom any person orally, unless the offender has asked to attend and make oralsubmissions, or the Board wishes to hear from any other person.89

The standard release conditions, together with any special release conditions imposedon offenders after they have reached their SRD, have different significance fromparole release conditions. First, after reaching that date offenders cannot be recalledto prison for breaching their conditions or for any other reason.90 Recall is onlyapplicable to offenders still serving their sentences on parole.

Second, the most serious consequence of a breach of release conditions withoutreasonable excuse is, following court conviction, a sentence of up to 12 months’imprisonment.91

Some offenders resist the imposition of special release conditions, either in principleor in respect of certain conditions considered unduly onerous. The Board may needto remind them that imposing special release conditions is calculated to promote theirrehabilitation and reintegration, and in many cases provide a support framework fortheir return to the community, often after a lengthy period in prison. Reasons for theimposition of special release conditions should, as required by the High Court, appearin the Board’s written decision.92

Offenders’ compliance with their release conditions is mandatory. They always havethe option of approaching their probation officer to seek the relaxation of conditions,or even seeking a formal variation or discharge of the conditions.93 Special releaseconditions, whether imposed at the time of release on parole or at the SRD, which

87 Parole Act 2002, s 18(2)(a).88 Parole Act 2002, s 18(2)(b).89 Parole Act 2002, s 49B.90 Parole Act 2002, s 60; and see [17.1] below.91 Parole Act 2002, s 71.92 See [11.4].93 Parole Act 2002, s 56; and see [11.8].

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the Board considers incompatible with standard release conditions can be suspendedby the Board.94

11.11 When parole endsOffenders released on parole cease to be on parole when they reach their SRD, orafter returning to prison following the making of a final recall order.95 After theirSRD, their status is that they are no longer serving a sentence of imprisonment, butwill be subject to standard release conditions and whatever special release conditionsthe Board has imposed.

94 Parole Act 2002, ss 29AA and 18(2AA).95 Parole Act 2002, s 32; and see [3.3].

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Chapter 12

DEPORTATION ORDERS AND EXTRADITION

12.1 Deportation...................................................................................................................................................89

12.2 Extradition from New Zealand....................................................................................................90

12.1 DeportationOffenders who are not New Zealand citizens may, prior to their parole eligibility date,or subsequently while still in prison, be served with a deportation order under theImmigration Act 2009. If the Board makes a direction for the release of such anoffender on parole, the offender will be released from prison directly into the custodyof the police or the immigration authorities, for immediate deportation, under specialrelease conditions to this effect.1

The same criteria apply for release and immediate deportation as for any other releaseon parole. However, the High Court and Court of Appeal have clarified that thecommunity into which the offender will be released overseas, not the community inNew Zealand where they lived prior to imprisonment, is the community whose safetymust be considered under s 28(2) of the Parole Act.2

In such cases the only special conditions routinely imposed will be that:

• the offender be released directly into the custody of the police or the NewZealand Immigration Service for the purpose of immediate deportation/removal;

• the offender not return to New Zealand during the period of the sentence orwhile subject to release on parole or release conditions; and

• parole is revoked should the offender’s immigration status change while theoffender is subject to release on parole.

Special conditions imposed when an offender is to be deported following release onparole will generally be considered incompatible with some or all of the standardrelease conditions and hence justify those standard release conditions beingsuspended.3

The Board may also record in its decision that in the event that all necessary traveldocuments cannot be arranged before the stipulated release date, or deportation

1 Parole Act 2002, s 29AA.2 Vaalele v Parole Board [2007] NZAR 396 (HC); aff’d Va’alele v Parole Board [2007] NZCA 535,

[2008] NZAR 281.3 Parole Act 2002, s 29AA(4).

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cannot occur for some other reason, an application to revoke the release decisionshould be made.

The Board may also reserve leave to apply for an earlier release date shouldarrangements for earlier deportation be made.

The Act also provides for early release for deportation on the application of theMinister of Immigration.4 The Minister may, in his or her absolute discretion, givethe manager of a prison a written notice ordering the release of an offender into thecustody of a constable or immigration officer, provided that the offender:

• is serving a sentence of imprisonment in that prison;• has either:

– been sentenced to two years or less;– been sentenced to more than two years and has served either two years

or one-third of the sentence, whichever is the shorter; or– received an indeterminate sentence and has served at least two years;

• is liable for deportation or removal under the Immigration Act 2009 orImmigration Act 1987; and

• has no right of appeal against liability for deportation, or has not appealedwithin the time allowed, or has had such an appeal determined by the upholdingof the liability for deportation.5

In addition, the Minister must be satisfied that the offender does not pose an unduerisk to the safety of the community into which he or she is to be deported.6 Thisrequirement mirrors the requirement imposed on the Board when considering therelease of any offender on parole in the usual way.

12.2 Extradition from New ZealandUnder the Extradition Act 1999 the Minister of Justice may determine that a personcharged with certain offences be surrendered to another country.7 This can onlyfollow the issuing of a warrant for the person’s detention in a prison or similarplace.8 Such a warrant would arguably overtake the warrant of imprisonment inrespect of an offender already in prison, and similarly displace the Board’s jurisdictionto consider an offender for release on parole, or to make a direction for such release.

4 Parole Act 2002, s 55. In Misiuk v New Zealand Parole Board [2012] NZCA 116 the Court of Appealleft open the question of whether s 55 was an exclusive process for deportation, or additional tothe Board’s power to direct release on parole as occurred in that case and is the course routinelyadopted by the Board.

5 Parole Act 2002, s 55(3)–(6).6 Parole Act 2002, s 55(7).7 Extradition Act 1999, s 30.8 Extradition Act 1999, ss 26, 28 and 30.

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Chapter 13

VICTIMS

13.1 Definition........................................................................................................................................................91

13.2 Notice to VNR victims of hearings..........................................................................................93

13.3 Submissions and input by VNR victims..............................................................................94

13.4 Submissions and input by non-VNR victims..................................................................94

13.5 Victim meetings........................................................................................................................................95

13.6 Notice to victims of outcomes......................................................................................................95

13.7 Offender access to victim input...................................................................................................96

13.8 Significance of victims’ views........................................................................................................97

13.1 DefinitionA “victim” is defined in s 4(1) of the Parole Act, in relation to an offender, as a personwho has asked for notice or advice and copies, and has given his or her address, unders 32B of the Victims’ Rights Act 2002 (VR Act). That section and the followingsections of the VR Act apply only to victims of “specified offences”. These aredefined in s 29 of the VR Act as:

• certain sexual offences;• serious violence offences;• offences that result in serious injury to a person, or death, or a person becoming

incapable; and• other offences that have lead to the victim having ongoing fears, on reasonable

grounds, for their physical safety or security, or for the physical safety orsecurity of one or more members of their immediate family.

As soon as practicable after a victim comes into contact with the police, theCommissioner of Police must determine if they are a victim of a specified offence.1If so, they (or their representative) can request the police to give them notice or adviceor copies relating to matters, orders and decisions which victims are entitled to underss 41, 43, 45, 50 and 58 of the Parole Act.2 They must provide an address forthemselves or a named representative.

The police must then forward the victim’s contact details to the Department, whichmaintains a victim register known as the Victim Notification Register (VNR). It is

1 Victims’ Rights Act 2002, s 29A.2 Victims’ Rights Act 2002, s 32B.

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then the obligation of the Board, on the basis of details provided by the Department,to provide such victims with the information set out in the sections of the Parole Actreferred to above.3

In addition, the Department must give a victim notice of the offender’s:

• impending temporary release;4

• escape from prison detention;5

• death while in prison or subject to release conditions;6

• convictions and sentences for breaching release conditions;7

• decisions on appeal quashing final recall orders;8 and• sentence end date.9

The Board is required to give victims notice of decisions making interim or final recallorders, refusing final recall orders, or quashing interim or final recall orders onreview.10

All such victims are referred to generally, and hereafter in this chapter, as “VNRvictims”, to distinguish them from a second category of victims. Victims who areeligible to be on the VNR can apply to be registered at any time, even years after theoffending.

For parole purposes, there is a second category of victims. These are identified ins 50A of the Parole Act as those defined not by s 4(1) of the Parole Act but by s 4of the VR Act. This is a wide definition of “victim” which includes:

• any person against whom an offence is committed by another person;• a person who, through or by means of an offence committed by another person,

suffers physical injury, or loss of or damage to property;• a parent or legal guardian of a child or young person victim, unless that parent

or guardian is the offender; and• a member of the immediate family of a person who dies or is incapable as a

result of the offending, unless that member is the offender.11

This category of victims will be referred to hereafter as “non-VNR victims”. Logically,the category of non-VNR victims includes VNR victims.12

3 See ss 33–38 of the Victims’ Rights Act 2002.4 Victims’ Rights Act 2002, s 35(1)(a).5 Victims’ Rights Act 2002, s 35(1)(b)(i).6 Victims’ Rights Act 2002, s 35(1)(b)(ii) and (c).7 Victims’ Rights Act 2002, s 36.8 Victims’ Rights Act 2002, s 36A(2).9 Victims’ Rights Act 2002, s 35(1)(d).10 Victims’ Rights Act 2002, s 36A(1).11 “Victim” is defined in identical terms in s 4(1) of the Sentencing Act 2002.12 The distinction between the two categories of victim was noted by the High Court in McVicar v

New Zealand Parole Board [2015] NZHC 2153 at [31]–[36].

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13.2 NOTICE TO VNR VICTIMS OF HEARINGS

As noted in [5.1] above, one of the guiding principles to be applied when making anydecision concerning the release of an offender on parole is that the rights of victimsare upheld, and that submissions by victims and restorative justice outcomes are givendue weight.13 For those purposes the wider non-VNR victim category is used.

13.2 Notice to VNR victims of hearingsThe Board is obliged to:

• take all reasonable steps to give notice of a pending hearing to every VNRvictim of the offender;14

• send them an explanation of the hearing process and how they may participatein that process;15 and

• notify them that they may request information on the offender from theDepartment.16

If a VNR victim requests information on an offender, the Department must thenprepare and send to them the following:

• a list of any programmes that the offender has attended since commencing hisor her sentence;

• a list of any programmes that the offender has completed;• a statement of the offender’s current security classification;• a list of any convictions received by the offender since commencing his or her

sentence; and• a statement that the purpose of providing the victim with information about

the offender is to assist the victim to make submissions, and that theinformation is not to be used for any other purpose.17

The above information must be sent to victims before each parole hearing.18

The Parole Act imposes no confidentiality obligations on victims who are providedwith information by the Board or the Department. The VR Act is likewise silent inthis regard. However, court suppression orders will apply to victims as much asanyone else, and there may be other enactments or prohibitions on the disclosure of

13 Parole Act 2002, s 7(2)(d).14 Parole Act 2002, s 43(2)(b). This applies only to hearings concerning release at the statutory release

date or consideration for parole: s 42. The Department must give victims notice of convictionsfor breaching release conditions: Victims’ Rights Act 2002, s 36. Failure to give victims notice ofa pending parole hearing does not invalidate the hearing: Parole Act 2002, s 43(4).

15 Parole Act 2002, s 43(2A).16 Parole Act 2002, s 43(3).17 Parole Act 2002, s 44(1).18 Parole Act 2002, s 44(2). In practice, if a victim seeks information once, they will automatically

be sent updating information for each subsequent parole hearing. The importance of victimsreceiving information, so that they can prepare for an offender’s release (if directed), wasemphasised by the Court of Appeal in R v Gurnick (2002) 19 CRNZ 627 (CA) at [19].

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information about offenders or the parole process which would be binding onvictims.

While undoubtedly helpful to victims, this information provides limited detail of thekind of material presented to the Board when an offender appears for considerationof parole. In particular, victims are not provided with copies of any psychological orpsychiatric reports, nor the parole assessment reports routinely prepared for everyparole hearing. This accounts to some extent for the surprise and, on occasion, dismayor anger expressed by victims after a decision to release an offender on parole, onthe basis of all the information which the Board is required to take into account beforemaking such a decision.

13.3 Submissions and input by VNR victimsVNR victims given notice of parole hearings are entitled, by a given date, to makewritten submissions on, or give information relevant to, the substantive matter to bedecided.19 They also have the right to attend and make oral submissions to the Board“for the purpose of assisting the Board to reach a decision”, in person or (with theBoard’s leave) through counsel.20 They can also have a support person or personswho may (with the Board’s leave) speak for or on behalf of the victim.21

13.4 Submissions and input by non-VNR victimsAs non-VNR victims will not be on the VNR, the Board will not necessarily havetheir contact details and is not obliged to give them notice of hearings like VNRvictims. However, non-VNR victims may nevertheless be aware of pendinghearings.22 If a non-VNR victim “seeks information from the Board” in order to makewritten or oral submissions, the Board may:

• advise the person of the relevant hearing date; and• give the person “any other information that is reasonably necessary” to enable

the person to make the written or oral submissions.23

Such victims may then:

• by writing to the Board, make written submissions on, or give informationrelevant to, the substantive matter to be decided at a hearing to consider paroleor release at the statutory release date; and

• with the leave of the Board, attend and make oral submissions to the Board inthe same as way as VNR victims (set out in [13.3] above).24

19 Parole Act 2002, s 43(5).20 Parole Act 2002, s 49(4)(a) and (b). See [13.5] below.21 Parole Act 2002, s 49(4)(c).22 To date, very few non-VNR victims have made contact with the Board, sought information, or

made written or oral submissions.23 Parole Act 2002, s 50A(3).24 Parole Act 2002, s 50A(2).

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13.6 NOTICE TO VICTIMS OF OUTCOMES

The Board has a discretion under s 50A(3) of the Parole Act as to what informationto release to non-VNR victims, in contrast to the mandatory disclosure of specifiedinformation by the Department to VNR victims under s 44.

13.5 Victim meetingsThe rights of victims to make oral submissions to the Board are set out above.25 Theprovisions in the Act for interviews or meetings with victims before parole hearingswere repealed by the Parole Amendment Act 2015.

In practice, when face-to-face victim meetings are requested by victims, they will beheld before the start of Board hearings. They are not held at the prison where theoffender is held. Such meetings will be held at a convenient location such as a nearbycourthouse or Community Probation office, or (for Board hearings at more remoteplaces) a motel room. Victims who live some distance from the prison where theoffender is held and where the parole hearing is to occur, or distant from Wellingtonwhen the Board conducts video conference hearings from that city, may choose togive their oral submissions by way of video conference link. That will usually bearranged by their attendance at the nearest Community Probation office or othersuitable location.

The procedure to be followed at victim meetings is in practice quite informal. Fromthe point of view of the Board, the primary purpose is to provide an opportunity forvictims, including family members and supporters, to convey to the Board their viewsabout the offending, the impact on the victims, and their views as to the offender’srelease on parole and any associated safety concerns they may have.26 The Boardmembers will make notes. They will also, as an invariable practice, clarify with thevictims what views (if any) that they have conveyed to the Board can be passed onto the offender at the subsequent parole hearing. Wherever possible the Board willrespect the views of victims in that regard.

In all cases the Board will keep a written note of the significant matters raised byvictims at victim meetings, and this record will remain on the Board file for referenceby subsequent Board panels. These notes are accessible only by Board members.

13.6 Notice to victims of outcomesVNR victims are entitled to notice of the outcome of parole hearings.27 In addition,non-VNR victims who meet with the Board, or who make written or oralsubmissions, are entitled to the same notice.28 They must be told:

25 Parole Act 2002, s 49(4).26 See R v Gurnick (2002) 19 CRNZ 627 (CA) at [19], where the Court of Appeal emphasised the

importance of complying with ss 43, 44 and 50 of the Parole Act 2002 so that a victim of familyviolence had adequate notice of an offender’s release, the conditions of release, and an opportunityto secure her own safety on his release.

27 Parole Act 2002, s 50.

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• whether, and if so when, the offender is to be released from detention;29

• any release conditions applying to the offender;• certain information if the Board has declined to direct the release of the

offender on parole; and• (in the case of VNR victims only) certain information if a postponement order

has been made, including the date by which the offender must further beconsidered for parole.30

The administrator sitting with each Board panel will take steps, as soon as possibleafter the hearing with the offender, to notify any VNR victim of the outcome of thehearing. Where possible this is done within a matter of hours for victims who havemet with the Board, to reduce stress and so far as possible allay concerns. It alsoallows the Board to explain at the earliest opportunity the conditions of release (ifrelease on parole is directed).31 If disclosing certain release conditions would undulyinterfere with the privacy of any person other than the offender, the Board maywithhold advice of such conditions.32

The Board is also required to give victims notice of decisions to make interim recallorders, and to make or refuse final recall orders, and any decision following the reviewof such orders.33 The Department must advise victims of the outcome of any appealagainst making a final recall order.34

13.7 Offender access to victim inputAs noted in [7.1] above, all information relating to an offender which is received bythe Board and on which the Board will make a decision must (subject to definedexceptions) be made available to an offender prior to the parole hearing. This includesall submissions and information provided to the Board by victims, unless a decisionis made in exceptional circumstances to withhold information on the grounds thatto release it would prejudice the mental or physical health of the offender or endangerthe safety of any person.35 Clearly, the safety of victims will be the overridingconsideration when deciding whether or not to withhold all or part of a victimsubmission, and the views of the victim will be given considerable weight in thatregard.

Despite the general rule about making all information available to the offender, theBoard must ensure that:

28 Parole Act 2002, s 50B. Non-VNR victims rarely choose to take these steps.29 Whether on parole or at the statutory release date.30 Parole Act 2002, ss 50(1) and 50B(1).31 Parole Act 2002, s 50(1)(b).32 Parole Act 2002, ss 50(2) and 50B(2).33 Victims’ Rights Act 2002, s 36A(1).34 Victims’ Rights Act 2002, s 36A(2).35 Parole Act 2002, s 13(3).

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13.8 SIGNIFICANCE OF VICTIMS’ VIEWS

• no information is given to the offender that discloses any victim’s address orcontact details; and

• any written submissions by a victim and any victim impact statements whichare shown to an offender are not retained by the offender.36

13.8 Significance of victims’ viewsAs noted in [5.1] above, one of the guiding principles of the Parole Act is that therights of victims (both VNR victims and non-VNR victims) are upheld, and that theirsubmissions are given due weight. The Board is particularly mindful of the concernsand views of victims, and goes to considerable lengths to ensure that victims areinvolved in the parole process, as is their right.37

The Board must weigh all the relevant factors and guiding principles when makingits decision in each case, and not give disproportionate weight to one aspect such asthe views of victims, however stridently and publicly their views are conveyed (bythem or on their behalf). The High Court has held that victims’ views are relevantbut not determinative.38 The safety of the community is the overriding considerationfor the Board,39 and victims have no power of veto over a decision to release.40

36 Parole Act 2002, s 13(2).37 Victims’ rights, including participation in parole processes, are reinforced by the Victims Code

issued by the Ministry of Justice on 19 September 2015 and available at<www.victimsinfo.govt.nz>.

38 Smither v New Zealand Parole Board [2008] NZAR 368 (HC) and A (Victim) v New Zealand ParoleBoard [2008] NZAR 703 (HC).

39 This consideration is mandatory under ss 7(1) and 28(2) of the Parole Act 2002.40 See McVicar v New Zealand Parole Board [2015] NZHC 2153 (noted at [16.4.01]), an unsuccessful

challenge by a victim advocacy group to a Board decision to release an offender on parole.

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foreword - thomson reuters · sample. author david mather ba llb(hons) (auck), llm (queen’s, ......

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