By Georgia Warwick
There are certain kinds of indeterminate orders that a court may impose on a person convicted of serious crimes. These orders aim to protect the public from that person’s perceived risk of reoffending by providing for their detention or supervision without fixing an ‘end-date’. This article explains each order and clarifies their prerequisites before they can be imposed.
A Preventive Detention
Preventive detention is a prison sentence that a court may impose under the Sentencing Act 2002 at the time a person is sentenced. A court may only sentence a person to preventive detention if:
(a) They are convicted of certain serious sexual or violent offences; and
(b) The court is satisfied, having considered at least two expert reports, that the person is likely to commit another qualifying sexual or violent offence if released at the expiry date of any other sentence the court could impose.
That person cannot be considered for parole until they have served their minimum period of imprisonment set by the sentencing court. Once served, they may only be released on parole when the Parole Board is satisfied that person does not pose an undue risk to the safety of the community. The person will be subject to parole conditions for life and may be recalled to prison at any time.
B Extended Supervision Orders (ESOs)
ESOs are post-sentence orders that a court may impose under the Parole Act 2002 once a person has completed their fixed-term sentence of imprisonment.
The court may only impose an ESO on a person if:
(a) The person has been sentenced to imprisonment for certain serious sexual or
violent offences; and
(b) The court is satisfied, having considered at least two expert reports, that the person: (i) Has a pervasive pattern of serious sexual or violent offending; and
(ii) Poses a high risk of committing a serious sexual offence and/or a very high risk of committing a serious violent offence in the future.
That person will be supervised in the community under standard conditions similar to parole. The Parole Board may also impose special conditions including curfews, non-association restrictions and electronic monitoring. An ESO may be imposed for up to 10 years at a time and has unlimited rights of renewal.
C Public Protection Orders (PPOs)
PPOs are post-sentence orders that a court may impose under the Public Safety (Public Protection Orders) Act 2014 once a person has completed their fixed-term sentence of imprisonment.
The court may only impose a PPO on a person if:
(a) The person has been sentenced to imprisonment for certain serious sexual or violent offences; and
(b) The court is satisfied, having considered at least two expert reports, that there is a very high risk of imminent serious sexual or violent offending by the person if:
a. Where the person is detained in a prison, the person is released from prison into the community or;
b. In any other case, the person is left unsupervised.
That person will continue to be detained in a secure facility within prison precincts (a residence) even after they have served their sentence of imprisonment. The continuation of a PPO must be reviewed by a review panel yearly, and by a court every five years. It is our view that these indeterminate orders do not strike an adequate balance between protecting the public and respecting the human rights of persons subject to these orders. Human rights concerns have been raised by the UN Human Rights Committee as well as the New Zealand Court of Appeal, and the Law Commission is currently crafting proposals for reform.