After reconsidering its ability to impose curfew conditions, the Parole Board has decided to remove them.
Since the Parole Act 2002 came into force, the board has imposed two types of curfews as a condition of granting parole: a simple curfew requiring a parolee to remain at home at certain hours (usually at night) and a “residential restrictions” curfew pursuant to ss 15 and 33-35 of the Parole Act 2002.
More than 800 people are subject to simple curfews. But after the Supreme Court’s judgment in Woods v New Zealand Police [NZSC 141] 220, the board has issued a memorandum stating its view of the impact of Woods.
The board notes that the decision means it has no jurisdiction to impose a simple curfew, but it retains jurisdiction to impose the “residential restrictions” type of curfew.
Woods addressed a sentencing court’s power to impose release conditions as part of a short sentence of imprisonment. The conditions imposed on the appellant were to reside at a particular address, remain there between 8pm and 8am, be supervised by a probation officer and submit to electronic monitoring to check location and, the court held, compliance with the curfew.
The court said these conditions equated in substance to residential restrictions, as described in s 33(2) of the Parole Act 2022. However, s 93 of the Sentencing Act 2002 outlines the special release conditions that may be imposed by a sentencing court and states that special conditions include “conditions of the kind described in section 15(3) of the Parole Act 2002, other than a residential restriction condition […].”
The court determined that the sentencing court was not entitled to impose the release conditions it had.
The judgment in Woods is not merely a black letter reading of the relevant legislation, but reinforces a rights-consistent reading of the law. The board’s memorandum notes the Supreme Court’s finding at [68]:
Secondly, reading the text of s 93(2B) as precluding the imposition of special conditions that have the effect of detaining an offender in their residence for 12 hours a day is the most rights-consistent reading of the provision. If an unrestricted power to order such detention were intended, then it could be expected that Parliament would have spoken directly to confer that power. But there is no express power to detain set out in s 93 of the Sentencing Act or s 15 of the Parole Act, other than the power to impose a residential restriction condition contained in s 15(3)(ab), which is excluded from the types of conditions which a sentencing judge may impose.
Applying this logic, the board concluded it had no ability to order a parolee to adhere to a simple curfew. Its memorandum states, “a curfew that simply requires an offender to be at a particular residence between particular hours by itself is not authorised by the Parole Act given that it is outside the residential restrictions regime”.
The board says it is “working with Corrections, offenders and lawyers to identify all offenders who are subject to a curfew and work as speedily as possible to cancel those curfews”.
Lawyers who are aware of clients or former clients who are on simple curfews may be able to help the board and their (former) clients by bringing this matter to their attention.
The board’s memo says a hearing is required to cancel a special condition but does not require the parolee’s attendance and an application by a parolee to amend conditions will not be necessary. However, others believe there may in fact be a need for a parolee to return to the board to cancel a condition imposed ultra vires.
Finally, the board’s memorandum notes two further issues: the need to notify registered victims of amended conditions and that in some cases the board will elect to impose residential restrictions in lieu of a simple curfew. This will require a formal hearing.
Conrad Wright is a lawyer at the Public Defence Service and a member of the ADLS Parole Committee.
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