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Pitcairn Islands Consolidated Legislation (Historical Versions) |
LAWS OF PITCAIRN, HENDERSON, DUCIE AND OENO ISLANDS
Revised Edition 2010
CHAPTER XXXIV
PAROLE ORDINANCE
Arrangement of sections
PART I—PRELIMINARY PROVISIONS
Section
1. Short title and commencement
2. Interpretation
3. Ordinance binds the Crown
PART II—RELEASE
General provisions
4. Overview of release
5. Guiding principles
6. Application of ordinance
7. Application of ordinance to persons subject to term of imprisonment
8. Application of ordinance to offenders detained in hospital
9. This ordinance subject to other orders
10. General rules about information to be given to offenders
Conditions
11. Standard release conditions
12. Special conditions
13. Programmes
Release at statutory release date
14. Release at statutory release date
15. Conditions applying to release at statutory release date
16. Special provision for offenders sentenced to short-term sentences while on parole
Parole
17. Parole eligibility date
18. Consideration for parole of offenders detained in penal institution
19. Date of hearings
20. Consideration for parole of offenders on home detention or compassionate release
21. Consideration of offenders unlawfully at large when due to be considered for parole
22. Early referral and consideration for parole
23. Other times when Commission may consider offenders for parole
24. Postponement of consideration for parole
25. Direction for release on parole
26. Release conditions applying to parole
27. Release conditions applying to offenders detained in hospital who are released on parole
28. When release conditions discharged or suspended
29. When parole ends
Home detention
30. Application for home detention
31. Report on suitability for home detention
32. Direction for detention on home detention
33. Detention conditions
34. Expiry and revocation of direction for home detention
35. Entitlements under Social Welfare Benefits Ordinance
36. When detention conditions suspended or cancelled
37. When home detention ends
Compassionate release
38. Commission may direct early release on compassionate grounds
Procedures for certain hearings
39. Application of procedures set out in section 40 to 47
40. Start of process
41. Information for victims
42. Decision on type of hearing
43. Review of decision on type of hearing
44. Interviews before hearings
45. Unattended hearings
46. Attended hearings
47. Decisions must be notified
Actual release
48. Date of release
49. Release of offenders released at statutory release date
50. Licence issued on release
51. Police must be advised
52. Release for purpose of deportation
Variation and discharge of conditions
53. Application for variation or discharge of conditions
54. Procedure for determining applications
55. Commission determines application for variation or discharge
Recall
56. Definition of recall application
57. Making recall application
58. Grounds for recall
59. Making an interim recall order
60. What happens when interim recall order made
61. What happens if no interim recall order made
62. Procedure for determining recall applications
63. Commission may make final recall order
Reviews and appeals from decisions
64. Review of decisions
65. Appeals to Supreme Court
66. Procedure on Appeals
67. Powers of Court on appeal
Offences
68. Offence to commit breach of conditions
69. Offence to refuse entry to home detention residence
Arrest of offenders
70. Arrest without warrant
Regulations
71. Regulations
Sentence calculation—Cumulative sentences
72. Cumulative sentences form notional single sentence
Start date of sentence of imprisonment
73. General rules about start date of sentence of imprisonment
74. Start date of notional single sentence
75. Deferred start date
76. Start date if new sentence replaces original sentence
77. Start date after temporary surrender to Pitcairn
78. Start date of sentence of imprisonment when term imposed
Sentence expiry dates
79. Sentence expiry date
Non-parole periods
80. Non-parole periods
Release dates
81. Release date of sentence
Determining key dates
82. Supervision Officer must determine key dates, etc.
82A. Period spent in pre-sentence detention deemed to be time served
82B. Meaning of pre-sentence detention
82C. Islands time to be used in calculating key dates
83. Time ceases to run in certain circumstances
84. Time on bail pending appeal does not count as time served
85. Period between quashed sentence and new sentence does not count as time served
PART III
PITCAIRN PAROLE COMMISSION
Establishment of Commission
86. Pitcairn Parole Commission established
87. Functions of Commission
88. Administrative and training support for Commission
Membership of Commission
89. Membership of Commission
90. Chairperson of Commission
91. Delegation of chairperson's functions, powers and duties
92. Committee convenors
How Commission performs its functions
93. Parole committees
94. Decisions of Commission
95. Information before Commission
96. Avoiding actual or perceived bias
General provisions about Commission and members
97. Annual report
98. Term of appointment and reappointment
99. Members ceasing to hold office
100. Remuneration and expenses of members
101. Immunity of members
___________
No.6 of 2002
No.2 of 2007
No.4 of 2010
An ordinance to reform the law relating to the release from detention of offenders serving sentences of imprisonment
[18 September 2002]
PART I—PRELIMINARY PROVISIONS
Short title
1. This ordinance may be cited as the Parole Ordinance.
Interpretation
2. In this ordinance, unless the context otherwise requires—
chairperson means the chairperson of the Commission appointed under section 90
commencement date means the date of commencement of this ordinance
Commission means the Pitcairn Parole Commission established under section 86; and includes a committee of the Commission, a committee convenor and the chairperson acting within their respective jurisdictions
compassionate release means release under section 38
detention conditions means the standard detention conditions and any special conditions imposed by the Commission on an offender who is on home detention
determinate sentence means a sentence of imprisonment for a fixed term
final recall order means a final recall order made under section 63
home detention means detention under a sentence of imprisonment in a residence
hospital means a hospital wholly or partly for the treatment of mentally disordered persons as compulsory inpatients
indeterminate sentence means a sentence of imprisonment that is imprisonment for life or preventive detention
interim recall order means an interim recall order made under section 59
key date, in relation to a sentence of imprisonment, means the start date, sentence expiry date and release date of the sentence
long-term sentence means a sentence of imprisonment that is—
(a) a determinate sentence of more than 24 months; or
(b) a notional single sentence of more than 24 months; or
(c) an indeterminate sentence
non-parole period means the term within, or proportion of, a long-term sentence during which the offender who is subject to the sentence is not eligible to be released on parole from the sentence
non-release day means the Sabbath, Christmas Day, New Year's Day, the Sovereign's Birthday and Bounty Day
notional single sentence means the notional single sentence of imprisonment that is created when one determinate sentence is directed to be served cumulatively on another determinate sentence (see section 74)
parole eligibility date means the date on and after which an offender who is subject to one or more long-term sentences of imprisonment is eligible to be released on parole (see section 17)
penal institution means a prison or other place of detention established under any ordinance
postponement order means an order made under section 24 that postpones the date of an offender's next parole
release conditions means the standard release conditions and any special conditions imposed by the Commission or the sentencing court which apply to an offender released from detention
release date means, in relation to a determinate sentence of imprisonment, the date on which the offender who is subject to the sentence ceases to be liable to be recalled to continue serving that sentence in a penal institution (see section 81)
sentence expiry date means the date on which the offender who is subject to the sentence has served its full term and therefore ceases to be subject to it (see section 79)
short-term sentence means a sentence of imprisonment that is
(a) a determinate sentence of 24 months or less; or
(b) a notional single sentence of 24 months or less
special conditions means conditions of a type referred to in section 12
standard detention conditions means the standard conditions of detention applying to home detention, as set out in section 33
standard release conditions means the standard conditions of release set out in section 11
start date, in relation to a sentence of imprisonment, means the date on and from which an offender who is subject to the sentence begins to be subject to it (see sections 73 to 78)
statutory release date means the date on which an offender who is subject to one or more sentences of imprisonment—
(a) must be released from detention (see section 14); and
(b) ceases to be liable to be recalled to continue serving any sentence in a penal institution (see sections 56 to 63)
Supervision Officer means, for the purposes of this ordinance, the person appointed to that office in accordance with section 2 of the Sentencing (Community-based Sentences) Ordinance 2002
variation, in relation to the variation by the Commission of release conditions or detention conditions, includes the suspension and addition of conditions and the variation of their duration.
Ordinance binds the Crown
3. This ordinance binds the Crown.
PART II—RELEASE
General provisions
Overview of release
4.—(1) This section is intended to give a broad overview of how and when offenders are released from detention. It does not confer rights or impose obligations and, if there is an inconsistency between this section and any other, the other section prevails.
(2) Unless an offender has been released earlier under this Part, he or she must be released from detention on his or her statutory release date and after that is no longer subject to recall. However, offenders may be subject to release conditions after their statutory release date.
(3) This Part provides for three types of early release from a penal institution—
(a) parole;
(b) home detention;
(c) compassionate release.
(4) Parole has the following characteristics—
(a) it is available only to an offender who is subject to a long-term sentence;
(b) it is granted by the Commission, which also imposes release conditions;
(c) an offender on parole from a determinate sentence is subject to recall at any time until his or her statutory release date;
(d) an offender on parole from an indeterminate sentence is subject to recall for life.
(5) Home detention has the following characteristics—
(a) the offender is detained at a residence (rather than in a penal institution) on detention conditions imposed by the Commission;
(b) the offender is not in custody and his or her civil rights are the same as if he or she were not detained;
(c) if the offender is serving a short-term sentence, he or she may apply to the Commission for home detention only if the Court has granted the offender leave to apply.
(d) if the offender is serving a long-term, determinate sentence, he or she may apply to the Commission for home detention before his or her parole eligibility date, and may be released up to three months before that date.
(6) Compassionate release has the following characteristics—
(a) it may be granted by the Commission in either of two specific circumstances;
(b) the Commission may impose release conditions and may recall the offender.
Guiding principles
5.—(1) When making decisions about, or in any way relating to, the release of an offender, the paramount consideration for the Commission in every case is the safety of the community.
(2) Other principles which must guide the Commission's decisions are—
(a) that offenders must not be detained any longer than is consistent with the safety of the community and that they must not be subject to release conditions or detention conditions that are more onerous or last longer than is consistent with the safety of the community; and
(b) that offenders must be provided with information about decisions that concern them and be advised how they may participate in decision-making that directly concerns them; and
(c) that decisions must be made on the basis of all the relevant information that is available to the commission at the time; and
(d) that the rights of victims are upheld and victims' submissions and any restorative justice outcomes are given due weight.
(3) When any person is required under this ordinance to assess whether an offender poses an undue risk, the person must consider both—
(a) the likelihood of further offending; and
(b) the nature and seriousness of any likely subsequent offending.
Application of ordinance
6.—(1) This ordinance applies to all offenders who are subject to a sentence of imprisonment.
(2) Every decision about, or in anyway relating to, the release of an offender that is made after the commencement date must be made under this ordinance unless specifically provided otherwise.
Application of ordinance to persons subject to term of imprisonment
7. Unless specifically provided otherwise, this ordinance applies to every person who is subject to a term of imprisonment (whether by committal, sentence or order) for non-payment of a fine or other sum of money, disobedience or a court order or contempt of court, as if—
(a) every reference to a sentence of imprisonment included a reference to a term of imprisonment; and
(b) every reference to an offender included a reference to a person who is subject to a term of imprisonment.
Application of ordinance to offenders detained in hospital
8.—(1) This section applies to an offender who is detained in or on leave from a hospital following his or her transfer from detention in a penal institution to that hospital under relevant provisions of law by reason of mental disorder or illness.
(2) An offender to whom this section applies must be treated for the purposes of this ordinance as if he or she were detained in a penal institution and a reference to an offender detained in a penal institution is a reference to an offender detained in or on leave from a hospital.
(3) However, nothing in subsection (2) derogates from any provision that applies specifically to offenders to whom this section applies and the Commission and the Governor may make special arrangements for such offenders.
(4) When an offender to whom this section applies is released under this ordinance, he or she must be treated thereafter as an inpatient or a voluntary patient, as the case may be.
This ordinance subject to other orders
9. For the avoidance of doubt, a requirement in this Part that an offender be released from detention at a certain time is subject to any order of a court or other authority of competent jurisdiction that the offender be detained.
General rules about information to be given to offenders
10.—(1) The Commission must take all reasonable steps to ensure that the information received by the Commission on which it will make any decision relating to an offender is made available to the offender—
(a) at least 20 working days before the relevant hearing; or
(b) if that is not possible, as soon as practicable before the hearing.
(2) Notwithstanding subsection (1), the Commission must ensure that—
(a) no information is given to the offender that discloses the address or contact details of any victim of the offender; and
(b) if any written submissions by a victim or any victim impact statements are shown to an offender, they are not retained by the offender.
(3) Notwithstanding subsection (1), the Commission may, in exceptional circumstances, order that any information referred to in that subsection not be made available to an offender if, in the opinion of the relevant committee convenor, it would prejudice the mental or physical health of the offender or endanger the safety of any person.
(4) Information withheld under subsection (3) may be provided to the offender's counsel on a confidential basis, with the consent of the offender or, if the circumstances so require, without such consent.
(5) Information provided or shown to an offender under this section must be used only for the purpose of assisting the offender to make submissions to the Commission.
(6) The Commission must give a written copy of every order or determination to the offender who is the subject of the order or determination together with information as to how the offender may exercise any review or appeal rights that he or she has in relation to the order or determination.
(7) Any person who publishes information provided under this section in a form that identifies, or enables the identification of, a victim commits an offence and is liable on summary conviction to—
(a) in the case of an individual, a term of imprisonment not exceeding 3 months or a fine not exceeding $2,000; and
(b) in the case of a body corporate, a fine not exceeding $10,000.
Conditions
Standard release conditions
11.—(1) An offender who is subject to the standard release conditions must comply with the following conditions—
(a) the offender must report in person to the Supervision Officer as soon as practicable and not later than 72 hours after release;
(b) the offender must report to the Supervision Officer as and when required to do so by the Supervision Officer and must notify the Supervision Officer of his or her residential address and the nature and place of his or her employment when asked to do so;
(c) the offender must not move to a new residential address without the prior written consent of the Supervision Officer;
(d) the offender must not reside at any address at which the Supervision Officer has directed the offender not to reside;
(e) the offender must not engage, or continue to engage, in any employment or occupation in which the Supervision Officer has directed the offender not to engage or continue to engage;
(f) the offender must not associate with any specified person, or with persons of any specified class, with whom the Supervision Officer has, in writing, directed the offender not to associate;
(g) the offender must take part in a rehabilitative and reintegrative needs assessment if and when directed to so do by the Supervision Officer.
(2) The conditions in subsection (1)(c) and (d) do not apply if, and to the extent that, they are inconsistent with any special conditions imposed by the Commission.
Special conditions
12.—(1) If the Commission imposes standard release conditions on an offender, or if the standard detention conditions apply to the offender, the Commission may (subject to subsections (2) and (4)) impose any one or more special conditions on the offender.
(2) A special condition must not be imposed unless it is designed to—
(a) reduce the risk of re-offending by the offender; or
(b) facilitate or promote the rehabilitation and reintegration of the offender; or
(c) provide for the reasonable concerns of victims of the offender.
(3) Without prejudice to the generality of this section, the kinds of conditions that may be imposed as a special condition include—
(a) conditions relating to the offender's place of residence (which may include a condition that the offender reside at a particular place) or his or her finances or earnings;
(b) conditions requiring the offender to participate in a programme (as defined in section 13) to reduce the risk of further offending by the offender through the rehabilitation and reintegration of the offender;
(c) conditions that the offender not associate with any person, persons or class of persons;
(d) conditions requiring the offender to take prescription medication.
(4) No offender may be made subject to a special condition that requires the offender to take prescription medication unless the offender—
(a) has been fully advised, by a person who is qualified or authorised by law to prescribe that medication, about the nature and likely or intended effect of the medication and any known risks; and
(b) consents to taking the prescription medication.
(5) An offender does not commit a breach of his or her conditions for the purposes of section 68 if he or she withdraws consent to taking prescription medication but the failure to take the medication may give rise to a ground for recall set out in section 58.
Programmes
13. For the purposes of section 12, a programme means any of the following—
(a) any psychiatric or other counselling or assessment;
(b) attendance at any medical, psychological, social, therapeutic, cultural, educational, employment-related, rehabilitative or reintegrative programme;
(c) placement in the care of any appropriate person, persons or agency approved by the Supervision Officer.
Release at statutory release date
Release at statutory release date
14.—(1) The statutory release date of an offender is the release date of the sentence to which the offender is subject (including any notional single sentences) that has the latest release date.
(2) An offender who is detained in a penal institution or who is on home detention on his or her statutory release date must be released from detention on that date.
Conditions applying to release at statutory release date
15.—(1) An offender who is released under section 14 at the release date of a short-term sentence is, on release, subject to any release conditions imposed by the Court on that sentence unless subsection (3) or section 16 applies.
(2) If an offender is released under section 14 at the release-date of a long-term sentence, the Commission—
(a) must impose the standard release conditions for a period of six months from the offender's statutory release date; and
(b) may oppose any special conditions for a period of up to six months from the offender's statutory release date.
(3) If an offender who is subject to a long-term sentence is, while not on parole or compassionate release, sentenced within the year preceding his or her statutory release date to a short-term sentence of which the release date is after that statutory release date, then, if the offender is released at the release date of the short-term sentence, that release date must be treated as if it were the release date of a long-term sentence.
Special provision for offenders sentenced to short-term sentences while on parole
16.—(1) If an offender who is on parole is sentenced to a concurrent short-term sentence of which the release date is before the offender's statutory release date, then (provided the offender is not recalled) the offender must be released from detention on the release date of the short-term sentence.
(2) If subsection (1) applies, except that the offender is subject to more than one short-term sentence, the offender must be released on the release date of the short-term sentence (including any short-term notional single sentence) that has the latest release date.
(3) For the avoidance of doubt, subsection (2) does not apply in respect of any short-term sentences that are imposed cumulatively if the resulting notional single sentence is a long-term sentence.
(4) If an offender is released in accordance with subsection (1) or subsection (2)—
(a) the offender is released on parole under section 25 and the Commission must impose release conditions under section 26 accordingly; but
(b) the actual date of release is determined under sections 48(2) and 50 as if the offender were being released at his or her statutory release date.
(5) If for any reason an offender is released in accordance with subsection (1) or subsection (2) before the Commission has imposed release conditions as required by subsection (4)(a), then—
(a) if the offender was at the start date of the sentence (or earliest applicable sentence) subject to any release conditions, the Commission is deemed to have re-imposed those release conditions for the remainder of the period for which they were originally imposed; and
(b) if the offender was not, at the start date of the sentence (or earliest applicable sentence) subject to release conditions, the offender is not subject to release conditions when he or she is released under subsection (1) or subsection (2).
Parole
Parole eligibility date
17.—(1) The parole eligibility date of an offender who is subject only to one or more sentences imposed on or after the commencement date is the date on which the offender—
(a) has finished serving the non-parole period of every long-term sentence to which he or she is subject; and
(b) has passed the release date of every short-term sentence to which he or she is subject.
(2) Notwithstanding anything in this section, an offender who is subject only to one or more short-term sentences does not have a parole eligibility date (unless the short-term sentences are cumulative and form a long-term notional single sentence, in which case subsection (1) applies to the notional single sentence and the offender will have a parole eligibility date under that subsection).
Consideration for parole of offenders detained in penal institution
18.—(1) The Commission must, as soon as practicable after the parole eligibility date of an offender who is detained in a penal institution, consider the offender for release on parole.
(2) The Commission must consider for parole every offender who is detained in a penal institution at least once in every 12 months after the offender's last parole hearing unless, when the offender is due to be considered—
(a) the offender has a new parole eligibility date that is more than 12 months after his or her last parole hearing (in which case subsection (1) applies); or
(b) the offender is subject to a postponement order; or
(c) the offender is detained following an application for a recall order, or under an interim or final recall order.
(3) If subsection 2(c) (but not subsection 2(a)) applies to an offender, the Commission must consider the offender for parole within twelve months of any final recall order that is, or is subsequently, made.
Date of hearings
19. For the purpose of administrative efficiency, the Commission may consider an offender for release on parole at any time within the month preceding the date on which the offender is due to be considered by the Commission; but in no case may an offender who is considered early under this section be released on parole before his or her parole eligibility date.
Consideration for parole of offenders on home detention or compassionate release
20.—(1) An offender who is subject to a long-term sentence and is on home detention must be considered by the Commission for parole at least once in every three months.
(2) An offender who is released on compassionate release may not be considered for parole by the Commission.
Consideration of offenders unlawfully at large when due to be considered for parole
21. An offender who is unlawfully at large on the date on which he or she is due to be considered for parole must be considered by the Commission for parole on the later of—
(a) the date that is 12 months after his or her return to custody (or as soon as practicable after it); or
(b) if the offender, after being returned to custody, has a new parole eligibility date, the offender's parole eligibility date (or as soon as practicable after it).
Early referral and consideration for parole
22.—(1) The chairperson may, in exceptional circumstances, refer an offender who has not yet reached his or her parole eligibility date for consideration by the Commission for parole.
(2) A referral under this section must be in writing and must set out the reasons why the chairperson is making the referral.
(3) The Governor may designate a class of offenders who have not yet reached their parole eligibility dates for early consideration by the Commission for parole.
(4) The Commission must, as soon as practicable, consider for parole any offender referred to it under subsection (1) and every offender belonging to a class designated under subsection (3).
(5) The Commission may direct the release on parole of an offender considered under this section if—
(a) the Commission is satisfied on reasonable grounds that the offender, if released on parole, will not pose an undue risk to the safety of the community or any person or class of persons within the term of the sentence, having regard to the matters set out in section 25(2)(a) and (b); and
(b) in the Commission's opinion the interests of justice require that the offender be released before his or her parole eligibility date.
(6) An offender released on parole under this section is to be treated for all purposes as an offender released on parole under section 25(1).
Other times when Commission may consider offenders for parole
23.—(1) The Commission may, at any time after an offender's parole eligibility date, consider the offender for release on parole at a time other than when the offender is due to be considered for parole and may make an order under section 25(1) directing his or her release on parole.
(2) An offender may, at any time, apply to the Commission to exercise its discretion under subsection (1) to consider the offender for parole.
Postponement of consideration for parole
24.—(1) If the Commission is satisfied that, in the absence of a significant change in the offender's circumstances, an offender will not be suitable for release at the time when he or she is next due to be considered for parole, the Commission may make a postponement order in relation to the offender.
(2) If the Commission makes an postponement order, it must specify the date by which the offender must be further considered for parole, which—
(a) in the case of an offender serving an indeterminate sentence, must be within three years of the offender's most recent parole hearing; or
(b) in the case of an offender serving any other long-term sentence, must be within two years of the offender's most recent parole hearing.
(3) Despite being subject to a postponement order, an offender may at any time apply to the Commission requesting consideration for parole on the grounds that there has been a significant change in his or her circumstances.
(4) A postponement order may be made at—
(a) an attended parole hearing; or
(b) a special attended hearing convened for the purpose of considering whether to make a postponement order.
(5) The Commission may not make a postponement order in relation to an offender unless it has first—
(a) advised the offender, at least 28 days before the hearing, that it is to consider making a postponement order; and
(b) given the offender an opportunity to make written submissions to the Commission about whether the order should be made; and
(c) held a hearing at which the offender (in person or through counsel) has been given an opportunity to make oral submissions.
Direction for release on parole
25.—(1) The Commission may, after a hearing at which it has considered whether to release an offender on parole, direct that the offender be released on parole.
(2) The Commission may give a direction under subsection (1) only if it is satisfied on reasonable grounds that the offender, if released on parole, will not pose an undue risk to the safety of the community or any person or class of persons within the term of the sentence, having regard to—
(a) the support and supervision available to the offender following release; and
(b) the public interest in the reintegration of the offender into society as a law-abiding citizen.
(3) If the Commission directs the release of an offender on parole, it must specify the date on which the offender is to be released which must be a date that is—
(a) not later than six months after the hearing; and
(b) not a non-release day.
(4) Notwithstanding subsection (3)(b), the Commission may, in exceptional circumstances, specify a date for release that is a non-release day.
(5) The Commission may revoke or amend any direction under this section at any time before the offender is released on parole but, if it does so, the Commission must hold another parole hearing as soon as practicable.
Release conditions applying to parole
26.—(1) The Commission must specify, in respect of every offender who is released on parole—
(a) how long the standard release conditions will apply to the offender; and
(b) whether any special conditions will apply and, if so, what they are and how long they will last.
(2) If an offender who is released on parole is subject to one or more determinate sentences, the commission must impose the standard release conditions for a period of at least six months but it may impose them for any period up to a maximum of six months beyond the offender's statutory release date.
(3) If an offender who is released on parole is subject to an indeterminate sentence, the Commission must impose the standard release conditions on the offender for the rest of the offender's life.
(4) If the Commission imposes special conditions on an offender who is released on parole, the special conditions may apply for as long as, but no longer than, the standard release conditions apply to the offender.
Release conditions applying to offenders detained in hospital who are released on parole
27.—(1) The Commission may, when directing the release on parole of an offender who is detained in, or on leave from, a hospital, vary any standard release conditions or waive the obligation to comply with any or all of them.
(2) The offender's release conditions do not take effect until the offender is actually released from the hospital.
(3) However, for the purpose of determining when the release conditions are discharged, time starts to run from the date on which the offender would have been released if he or she had been detained in a penal institution.
When release conditions discharged or suspended
28.—(1) The release conditions of an offender who is on parole (other than an offender who is subject to an indeterminate sentence) are discharged—
(a) when the period for which they were imposed expires; or
(b) if the offender resumes detention in a penal institution under a new sentence; or
(c) when the Commission discharges all release conditions under section 55.
(2) The release conditions of an offender who is on parole are suspended during any period that the offender spends in custody under a court order (for instance, on remand) or an interim recall order, and time runs on the conditions during any period that they are suspended.
When parole ends
29. An offender who has been released on parole ceases to be on parole—
(a) when the offender reaches his or her statutory release date (as determined under section 14(1); or
(b) if the offender resumes detention in a penal institution under a final recall order.
Home detention
Application for home detention
30.—(1) An offender who is subject to a short-term sentence and who has leave granted by the Court which sentenced him to apply for home detention may apply to the Commission for home detention at any time.
(2) An offender who is subject to a long-term determinate sentence may apply to the Commission for home detention at any time after the date that is five months before the offender's parole eligibility date.
Report on suitability for home detention
31.—(1) On receiving an application under section 30 for home detention, the Commission must request a report from the Supervision Officer on the offender's suitability for home detention and the report must address the matters listed in section 32(2)(b).
(2) Before completing the report required by subsection (1), the Supervision Officer must—
(a) ensure that every relevant occupant of the residence where it is proposed that the offender be detained is aware of the nature of the offender's past and current offending; and
(b) tell every relevant occupant that the reason for giving that information is to enable the occupant to make an informed decision about whether to consent to having the offender reside at the residence; and
(c) tell every relevant occupant that the information provided about the offender must not be used for any purpose other than that described in paragraph (b); and
(d) seek the consent of every relevant occupant to having the offender reside at the residence.
(3) In subsection (2), relevant occupant means, in relation to a residence that the Supervision Officer is considering as a suitable residence for an offender on home detention,—
(a) in the case of a family residence, every person of or over the age of 18 who normally lives there; and
(b) in the case of any other residence, every person whom a committee convenor, on application by the Supervision Officer, identifies as being a relevant occupant for the purpose of subsection (2).
Direction for detention on home detention
32.—(1) The Commission may direct an offender who has applied for home detention to continue serving his or her sentence on home detention.
(2) The Commission may give a direction under subsection (1) if it is satisfied on reasonable grounds that—
(a) the offender will not pose an undue risk to the safety of the community or any person or class of persons if he or she is detained on home detention rather than in a penal institution; and
(b) the offender is suitable for home detention, having regard to—
(i) generally, the likelihood of the offender committing further offences while on home detention; and
(ii) the nature of the offence or offences for which the offender is currently serving a sentence of imprisonment; and
(iii) the welfare of the offender and the likelihood that his or her rehabilitation and reintegration will be assisted by home detention; and
(iv) the safety and welfare of the occupants of the residence where the offender is to be detained; and
(v) the outcome of any restorative justice processes that may have occurred; and
(c) the relevant occupants (as defined in section 31(3)) of the residence in which the offender will be detained—
(i) understand the conditions of home detention that will apply to the offender; and
(ii) consent to the offender's detention in the residence in accordance with those conditions; and
(d) the offender has been made aware of and understands the conditions that will apply during home detention and he or she agrees to comply with them.
(3) The Commission may not give a direction under subsection (1) if the period between the date on which the offender would start home detention and his or her statutory release date is two weeks or less.
(4) The Commission may direct that an offender who is subject to a long-term sentence may commence home detention at any time after the date that is three months before the offender's parole eligibility date.
(5) If the Commission declines to direct an offender to continue serving his or her sentence on home detention, it may (on application or of its own motion) from time to time reconsider its original decision on the offender's application.
Detention conditions
33.—(1) An offender on home detention is subject to detention conditions comprising—
(a) the standard detention conditions set out in subsection (2); and
(b) any special conditions (as described in section 12 imposed by the Commission).
(2) The standard detention conditions are that—
(a) the offender is under the supervision of the Supervision Officer and must co-operate with and comply with any lawful direction given by the Supervision Officer;
(b) the offender must not, at any time, leave the residence where he or she is detained on home detention except in the circumstances set out in subsection (3);
(c) the offender must keep in his or her possession the licence issued under section 50(3) and, if requested to do so by an officer of the police or the Supervision Officer, must produce the licence for inspection.
(3) An offender may leave the residence in which he or she is on home detention only—
(a) to seek urgent medical or dental treatment; or
(b) to avoid or minimise a serious risk of death or injury to the offender or any other person; or
(c) with the approval of the Supervision Officer—
(i) to engage in employment; or
(ii) to attend training or other rehabilitative or reintegrative activities or programmes; or
(iii) to attend a restorative justice conference or other process relating to the offender's offending; or
(iv) to carry out any undertaking arising from any restorative justice process; or
(v) for any other purpose specifically approved by the Supervision Officer.
(4) Before directing an offender to continue serving his or her sentence on home detention, the Commission must consider requiring the offender to undertake a programme (as defined in section 13 as a special condition and may, if the conditions in section 12(2) are satisfied, require the offender to undertake a programme as a special condition.
(5) An offender on home detention—
(a) is not in custody while on home detention; and
(b) is liable to recall until the offender's statutory release date.
Expiry and revocation of direction for home detention
34.—(1) The Commission may revoke a direction under section 32 at any time before the offender starts home detention but, if it does so, the Commission must hold another hearing as soon as practicable.
(2) A direction under section 32 in respect of an offender who is serving a long-term sentence expires after 12 months, but the Commission may at any time, with the consent of the offender, extend it for one further period of up to 12 months.
(3) An offender on home detention may at any time apply to the Commission for a direction returning the offender to a penal institution and the Commission may revoke the direction accordingly.
(4) If a direction for home detention is revoked or expires and the offender, though subject to a sentence, is not released on parole or compassionate leave, the offender must, when required to do so, accompany the Supervision Officer to a penal institution to resume detention; and if the offender refuses to accompany the Supervision Officer, the offender is unlawfully at large until he or she resumes detention in a penal institution.
Entitlements under Social Welfare Benefits Ordinance
35. The fact that a person is on home detention does not, of itself, affect any entitlement the person may have under the Social Welfare Benefits Ordinance.
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When detention conditions suspended or cancelled
36.—(1) The detention conditions of an offender on home detention are cancelled when the offender ceases to be on home detention.
(2) The detention conditions of an offender who is on home detention are suspended during any period that the offender spends in custody under a court order (for instance, on remand) or interim recall order and time runs on the conditions during any period that they are suspended.
When home detention ends
37. An offender ceases to be on home detention when—
(a) the offender reaches his or her statutory release date; or
(b) in the case of an offender who is subject to a long-term sentence; the offender is released on parole; or the offender resumes detention in a penal institution under a new sentence of imprisonment or a final recall order; or
(c) the direction for home detention expires under section 34(2) or is revoked under section 34(3); or
(d) the offender is released on compassionate release.
Compassionate release
Commission may direct early release on compassionate grounds
38.—(1) The Commission may, on referral by the chairperson, direct that an offender be released on compassionate release on either of the following grounds—
(a) the offender has given birth to a child;
(b) the offender is seriously ill and is unlikely to recover.
(2) Every referral by the chairperson for consideration for compassionate release must be in writing and set out the reasons why the chairperson is making the referral.
(3) The Commission may, as part of a direction for compassionate release, impose the standard release conditions and any special conditions on the offender and may vary or waive the obligation to comply with any standard release conditions if necessary in the circumstances.
(4) Before an offender is released, the Commission may cancel a direction for release or vary any of the conditions of release.
(5) After an offender is released, the Commission may vary or discharge any release conditions under section 55.
(6) An offender released on compassionate release is liable to recall as if he or she had been released on parole.
(7) When an offender is released under this section, a copy of the order for release, together with any conditions imposed on the offender, must be supplied to—
(a) the offender; and
(b) every victim of the offender; and
(c) the Governor; and
(d) the police.
Procedures for certain hearings
Application of procedures set out in sections 40 to 47
39. Sections 40 to 47 apply to every hearing of the Commission concerning an offender who—
(a) is due to be released from detention on his or her statutory release date; or
(b) is to be considered for parole; or
(c) is to be considered for home detention.
Start of process
40.—(1) When an offender is due to be released at his or her statutory release date, or to be considered by the Commission for parole or home detention, the Supervision Officer must provide the Commission with—
(a) copies of all relevant information relating to the offender's current and previous convictions, including (for example) sentencing notes and pre-sentence reports; and
(b) if the offender has engaged in any restorative justice processes, any reports arising from those processes; and
(c) in the case of an offender detained in a penal institution, a report by the officer in charge; and
(d) in the case of an application for home detention, or release from home detention, a report by the Supervision Officer; and
(e) in the case of an offender currently detained in, or on leave from, a hospital, a report from the responsible clinical (or the most suitable other health professional to provide such a report) concerning the offender and any care programmes that the hospital has put, or intends to put, in place for the offender; and
(f) in the case of a young offender placed under the control of a caregiver, a report by the caregiver of the conduct and social attitudes of the offender.
(2) The Commission must take all reasonable steps to give notice to the following people that a hearing is pending—
(a) the offender;
(b) every victim of the offender;
(c) the superintendent of the prison in which the offender is detained (if applicable);
(d) the Supervision Officer (in the case of an offender currently on home detention);
(e) the medical superintendent (in the case of an offender currently detained in a hospital);
(f) the police.
(3) If the hearing relates to an offender who is subject to a long-term sentence, any victim who is notified must be advised that he or she may request information on the offender under section 41.
(4) Any person notified under subsection (2) may write to the Commission by a given date, making submissions on or giving information relevant to—
(a) the substantive matter to be decided; and
(b) whether the hearing should be an unattended hearing or an attended hearing.
(5) For the purpose of providing the reports required under subsection (1)(e) and (f), the responsible clinician (or other health professional) referred to in subsection (1)(e) or the caregiver referred to in subsection (1)(f) (as the case may be) must, on request by the Supervision Officer, supply a report on the relevant offender to the Supervision Officer as required.
Information for victims
41. If a victim requests information on an offender under section 40(3), the Supervision Officer must prepare and send to the victim the following—
(a) a list of any programmes that the offender has attended since commencing his or her sentence and a list of any programmes that the offender has completed;
(b) a statement of the offender's current security classification;
(c) a list of any convictions received by the offender since commencing his or her sentence;
(d) an explanation of the hearing process and how the victim may participate;
(e) an undertaking that the purpose of providing the victim with information about the offender is to assist the victim to make submissions and that the information is not to be used for any other purpose.
Decision on type of hearing
42.—(1) The committee convenor who is allocated to conduct a particular hearing must decide whether that hearing will be an unattended hearing under section 45 or an attended hearing under section 46.
(2) A decision under subsection (1) may not be made until—
(a) the Commission has received the information referred to in section 40(1); and
(b) the given date referred to in section 40(4) has passed.
(3) If the committee convenor believes on reasonable grounds that the Commission is able to make a proper decision on the basis of the information available to the Commission, without the need for any person other than Commission members to attend the hearing, the convenor may decide that the hearing will be an unattended hearing.
(4) In deciding whether to hold an unattended hearing or an attended hearing, the committee convenor must consider—
(a) whether and how often the offender has been considered by the Commission;
(b) the length of time since his or her last attended hearing (if any);
(c) whether there are significant advantages to be gained by having one type of hearing rather than the other;
(d) whether written submissions indicate that there are matters that warrant consideration at an attended hearing;
(e) any relevant cultural or personal factors;
(f) any other matter that the committee convenor considers relevant.
(5) The decision on the type of hearing must be notified in writing to the offender and every victim of the offender and to any other person from whom the Commission wishes to receive information in relation to the hearing.
(6) A committee convenor may, before or during an unattended hearing, determine that the hearing must be an attended one and, in that case, a time for the attended hearing must be fixed and the people referred to in subsection (5) must be notified accordingly.
(7) Notification under subsections (5) or (6) must include—
(a) if the hearing is to be an unattended one, a summary of the reasons for deciding that the hearing will be unattended and information about the right to an interview under section 44; and
(b) if the hearing is to be an attended one, the date of the hearing and relevant information about the rights of people attending; and
(c) information about the right of review given by section 43.
Review of decision on type of hearing
43.—(1) A person who is dissatisfied with a decision that a hearing will be an unattended hearing may seek a review of the decision by writing to the Commission within thirty days of the date of the notice.
(2) The Commission must review a decision on the type of hearing as soon as practicable after a person has asked for a review of the decision.
(3) Following a review, the Commission may confirm the decision or determine that the hearing will be an attended hearing.
(4) If the hearing is to be an attended hearing, the Commission must fix a time for the attended hearing and notify the people referred to in section 42(5) accordingly.
(5) If the hearing is to be an unattended hearing, the Commission must notify the person who sought the review.
Interviews before hearings
44.—(1) If a hearing is to be an unattended hearing, the offender and every victim of the offender must be given the opportunity to have an interview before the hearing with one member of the committee allocated to conduct the hearing.
(2) The member conducting the interview may conduct the interview at whatever place and in whatever manner he or she considers appropriate, subject to this section.
(3) In relation to an interview with a victim—
(a) the victim may have a support person with him or her and the support person may, with the consent of the victim and the permission of the member conducting the interview, speak on behalf of the victim; and
(b) if there are special circumstances, and with the consent of the victim and the prior written approval of the Commission, the victim may be represented at the interview by another person who must attend the interview in place of the victim; and
(c) the interview may not take place at a penal institution unless the victim (or his or her representative) consents.
(4) At an interview with an offender, the offender may have a support person with him or her and the support person may, with the consent of the offender and the permission of the member conducting the interview, speak in support of the offender.
Unattended hearings
45.—(1) At an unattended hearing, the only people who may be present are—
(a) the Commission members conducting the hearing; and
(b) the staff assisting the Commission; and
(c) any other person whom the Commission agrees in writing to allow to be present.
(2) An unattended hearing may be conducted with any or all of the people mentioned in subsection (1) being present by way of telephone or video link, rather than in person.
Attended hearing
46.—(1) An attended hearing must be conducted in the manner of an inquiry and in an atmosphere that encourages persons appearing before the Commission to speak for themselves and as freely and openly as possible.
(2) Within that context, the Commission may conduct the hearing as it thinks appropriate and, subject to this section, has the following powers—
(a) to determine who may attend and determine whether a person may attend other than in person (for instance by telephone or video link);
(b) to determine who may speak;
(c) to impose limits on what a person may talk about and for how long;
(d) to require any person to leave the hearing, either temporarily or for the remainder of the hearing;
(e) to adjourn the hearing.
(3) The offender who is being considered is entitled to—
(a) appear and make oral submissions to the Commission; and
(b) attend while any other person is making submissions, provided that the offender may not be present unless the victim, the offender and the Commission agree; and
(c) with the leave of the Commission, be represented by counsel; and
(d) be accompanied by one or more support persons (subject to any limitation on numbers imposed by the Commission) who may, with leave of the Commission, speak in support of the offender.
(4) Every victim of the offender is entitled to—
(a) appear and make oral submissions to the Commission for the purpose of assisting the Commission to reach a decision;
(b) with the leave of the Commission, be represented by counsel; and
(c) be accompanied by one or more support persons (subject to any limitation on numbers imposed by the Commission) who may, with the leave of the Commission
(i) speak in support of the victim; and
(ii) with the permission of the victim, speak on behalf of the victim.
Decisions must be notified
47.—(1) After a hearing, every person who was notified under section 40(2) must be advised—
(a) whether, and if so, when, the offender is to be released from detention or to commence home detention; and
(b) of any release or detention conditions applying to the offender; and
(c) if a postponement order has been made, the duration of the postponement.
(2) Advice under subsection (1) to a victim may include all those release or detention conditions which are of personal relevance to the victim or his or her family, or which address the victim's submissions.
Actual release
Date of release
48.—(1) This section applies to an offender who is serving a sentence of imprisonment in a penal institution.
(2) An offender who is due to be released at his or her statutory release date must be released from the penal institution on that date, unless he or she is released earlier under section 49.
(3) An offender who has been directed by the Commission to be released on parole or compassionate release, or to start home detention, must be released from the penal institution on the date specified by the Commission.
Release of offenders released at statutory release date
49.—(1) This section applies only to an offender who is serving a sentence of imprisonment of more than 14 days and who is due to be released from a penal institution or from home detention at his or her statutory release date.
(2) If the offender's statutory release date falls on a non-release day, the offender must be released on the nearest preceding date that is not a non-release day.
(3) If an offender is released early under subsection (2), the offender, during the period between the date of actual release and his or her statutory release date—
(a) is subject to any release conditions that will apply on his or her statutory release date as if he or she had been released on his or her statutory release date (but time does not begin to run on any conditions until the offender's statutory release date); and
(b) is liable to recall.
Licence issued on release
50.—(1) When an offender is released from detention in a penal institution or from home detention, he or she must be issued with a licence that sets out—
(a) the release conditions (if any) that apply to the offender; and
(b) the date or dates on which the conditions, or any of them, cease to apply; and
(c) details about liability to recall.
(2) Subsection (1) does not apply to an offender who is released from a short-term sentence if, on release, the offender is not subject to any release conditions.
(3) When an offender starts home detention, he or she must be issued with a licence that sets out—
(a) the detention conditions that apply to the offender while on home detention; and
(b) the date or dates on which the conditions, or any of them, cease to apply.
(4) If an offender's release conditions or detention conditions are varied or discharged, the offender must be given a new or amended licence that shows the conditions as varied or discharged.
Police must be advised
51.—(1) When an offender is released from detention in a penal institution or from home detention, the Supervision Officer must advise the police of—
(a) the date on which the offender is released; and
(b) the offender's release conditions; and
(c) the offender's statutory release date.
(2) When an offender starts home detention, the Supervision Officer must advise the police of—
(a) the date on which the home detention starts; and
(b) the offender's detention conditions; and
(c) the offender's statutory release date
Release for purpose
52.—(1) The Governor may, by notice in writing to the superintendent of a penal institution, order the release of an offender into the custody of any officer of the police if—
(a) the offender is subject to a sentence of imprisonment; and
(b) the offender has been ordered to be deported from the Islands by the Governor under section 6 of the Landing and Residence Ordinance.
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(2) A notice issued under subsection (1) is sufficient authority for the superintendent to release the offender accordingly on request by any officer of the police.
(3) When a ship becomes available to take the offender from the Islands and it is practicable in all the circumstances for the offender to leave on that ship, an officer of the police may require the superintendent, in accordance with subsection (1), to deliver the offender into the custody of the officer; and the officer must escort the offender (or arrange for him or her to be escorted) to the Landing and ensure that the offender is placed upon the ship and detained there until the ship leaves the Islands.
(4) If for any reason that ship is delayed in the Islands for more than 24 hours, the offender must be returned to the custody of the superintendent and, for that purpose, the warrant by which the offender was originally committed to the institution is deemed to be still in force.
(5) If an offender is returned to custody under subsection (4), the superintendent must, on request by any officer of the police, release the offender into the custody of that officer for deportation and the provisions of this section apply in respect of every request until the offender is finally deported.
(6) Notwithstanding subsection (1), in respect of any offender to whom paragraphs (a) and (b) of that subsection apply, the Supervision Officer may, at any time within 28 days preceding the offender's statutory release date, by notice in writing to the superintendent of the penal institution in which the offender is detained, order the release of the offender into the custody of any officer of the police in possession of the notice; and that notice is sufficient authority for the superintendent to release the offender accordingly.
(7) If an offender is released into the custody of an officer of the police under subsection (6), subsections (3) to (5) apply as if the release were ordered by the Governor.
(8) If an offender is released and deported under this section, his or her sentence continues to run and, if the offender subsequently returns to the Islands before the sentence expiry date, the offender is liable to resume serving it.
Variation and discharge of conditions
Application for variation or discharge of conditions
53.—(1) An offender who is subject to release conditions or detention conditions imposed by the Commission may apply to the Commission at any time for the variation or discharge of any of those conditions.
(2) The Supervision Officer may at any time apply to the Commission for the variation or discharge of any release condition or detention condition imposed by the Commission that applies to the offender.
(3) An application under this section must indicate whether or not the offender wishes to appear before the Commission to state his or her case.
(4) When the Supervision Officer applies for the variation or discharge of a condition, the Supervision Officer may suspend the condition until the application is determined.
Procedure for determining applications
54.—(1) Before determining an application for variation or discharge, the Commission may seek information from anyone it considers has, or may have, an interest in the application, such as the police or any victim of the offender.
(2) For the avoidance of doubt, section 10 (concerning information to be given to offenders) applies to hearings for the purpose of determining an application for variation or discharge.
(3) An application for variation or discharge may be determined without the Commission hearing from any person, unless—
(a) the offender has asked to appear before the Commission to state his or her case; or
(b) the Commission wishes to hear from any person orally.
Commission determines application for variation or discharge
55.—(1) On an application under section 53, the Commission may direct the variation or discharge of any release condition or detention condition imposed by the Commission that applies to an offender.
(2) The Commission may not—
(a) extend the duration of any release condition to a date that is later than six months after the offender's statutory release date; or
(b) extend the duration of any special condition beyond the date on which the standard release or detention conditions cease to apply.
(3) The Commission may not discharge the standard release conditions with effect from a date that is less than six months after the date on which the offender was released, unless the offender is released on compassionate release or was, at the time of his or her release, detained in a hospital.
(4) If the Commission directs the variation or discharge of a condition—
(a) the variation or discharge takes effect on the date specified in the direction; and
(b) every variation must be treated as part of the conditions that apply to the offender; and
(c) notice of the direction must be given to the offender, the Supervision Officer, the police and (if reasonably practicable) any victim to whom notice of the original condition was given.
Recall
Definition of recall application
56. A recall application is an application for an order that an offender be recalled to continue serving a sentence of imprisonment in a penal institution.
Making recall application
57.—(1) The Supervision Officer may make a recall application to the Commission in respect of any offender who—
(a) is subject to an indeterminate sentence; and
(b) is on parole or on compassionate release.
(2) The Supervision Officer may make a recall application to the Commission in respect of any offender who—
(a) is subject to a determinate sentence; and
(b) has not yet reached his or her statutory release date; and
(c) is on parole, home detention, or compassionate release.
(3) A recall application must specify the ground or grounds in section 58 on which the applicant relies and the basis on which the applicant is satisfied that the ground or grounds apply.
(4) When a recall application is made, the sentence to which the application relates ceases to run, except for any period between the lodgement of the application and the date on which it is determined during which the offender—
(a) is in custody in a penal institution; or
(b) is serving his or her sentence by home detention in accordance with his or her detention conditions.
Grounds for recall
58.The grounds for recall are that—
(a) the offender poses an undue risk to the safety of the community or any person or class of persons; or
(b) the offender has committed a breach of his or her release conditions or detention conditions; or
(c) the offender has committed an offence punishable by imprisonment; or
(d) in the case of an offender who is serving his or her sentence by way of home detention—
(i) the offender is jeopardising the safety of any person at his or her residence; or
(ii) the suitable residence where a home detention scheme is being served is no longer available because of changed circumstances; or
(e) in the case of an offender who is subject to a special condition that requires his or her attendance at a residential programme—
(i) the offender is jeopardising the safety of any person at the residence or the order or security of the residence; or
(ii) the offender has failed to remain at the residence for the duration of the programme; or
(iii) the programme has ceased to operate or the offender's participation in it has been terminated for any reason.
Making an interim recall order
59.—(1) On receiving a recall order, the chairperson or any committee convenor must make an interim recall order if he or she is satisfied on reasonable grounds that—
(a) the offender poses an undue risk to the safety of the community or to any person or class of persons; or
(b) the offender is likely to abscond before the determination of the application for recall; or
(c) in the case of an offender on home detention, a suitable residence in the area where the home detention scheme is operating is no longer available.
(2) When deciding whether to make an interim recall order in respect of an offender who is currently detained, the chairperson or committee convenor (as the case may be) must make the decision as if the offender were not detained.
60.—(1) When an interim recall order is made, the chairperson or a committee convenor (as the case may be) must issue a warrant in the prescribed form for the offender to be detained in a penal institution pending the determination of the application for recall.
(2) At any time after a warrant is issued under subsection (1), a police officer may arrest the offender, whether or not the officer has possession of the warrant, for the purpose of returning the offender to a penal institution.
(3) On, or as soon as practicable after, being taken into custody following the issue of a warrant under subsection (1), the offender must be given a copy of the recall application and a notice that—
(a) specifies the date on which the application is to be determined; and
(b) advises the offender of his or her right to appear before the Commission and to state his or her case in person or through counsel; and
(c) requires the offender to notify the Commission not later than 14 days before the date on which the application is to be determined, whether he or she wishes to make written submissions or to appear in person or to be represented by counsel.
(4) While an offender is subject to an interim recall order, he or she must be detained in custody.
What happens if no recall order made
61. If no interim recall order is made following a recall application, the Commission must cause to be served on the offender—
(a) a copy of the recall application;
(b) a notice of the kind described in section 60(3).
Procedure for determining recall applications
62.—(1) If an interim recall order is made, the Commission must determine the recall application on a date that is—
(a) if the offender is in custody when the interim order is made, at least 21 days after, but not more than one month after, the date of the interim order; or
(b) if the offender is not in custody when the interim order is made, at least 21 days after, but not more that one month after, the date on which the offender is taken into custody.
(2) If no interim recall order is made, the Commission must determine the recall application on a date that is at least 21 days after, but not more than two months after, the date on which the copy of the recall application is served on the offender.
(3) For the avoidance of doubt, section 10 (concerning information to be given to offenders) applies to hearings for the purpose of determining a recall application.
(4) The Commission may determine a recall application without the Commission hearing from any person orally unless—
(a) the offender has indicated that he or she, in person or through counsel, wishes to appear to state his or her case; or
(b) the Commission wishes to hear from any other person orally.
(5) Notwithstanding subsections (1) and (2), the Commission may from time to time adjourn the hearing of a recall application; but no adjournment may be for more than eight days, unless the offender consents to a longer period.
Commission may make final recall order
63.—(1) The Commission may make a final recall order recalling an offender to continue serving his or her sentence in a penal institution if, following a hearing on a recall application, it is satisfied on reasonable grounds that one or more of the grounds for recall in section 58 have been established.
(2) When deciding whether to make a final recall order in respect of an offender who is currently detained, the Commission must make the decision as if the offender were not detained.
(3) On making a recall order, the Commission must issue a warrant in the prescribed form for the offender to resume serving his or her sentence in a penal institution.
(4) If the Commission refuses a recall application—
(a) the Commission must direct the offender's release from custody under any warrant issued under section 60(1) (if applicable); and
(b) any release conditions or detention conditions that were suspended resume (subject to paragraph (c)); and
(c) the Commission may vary or discharge any conditions imposed by the Commission that apply to the offender without the need for an application under section 53.
Reviews and appeals from decisions
Review of decisions
64.—(1) Subject to subsection (2), an offender who is the subject of any decision of the Commission under this ordinance may, within 28 days of the decision, apply in writing to the Commission for a review of that decision.
(2) No review under this section may be sought in respect of—
(a) a decision under section 42 about the type of hearing; or
(b) a decision under section 43 on a review of a decision about the type of hearing.
(3) The grounds for an application for review under this section are that the Commission, in making the decision—
(a) failed to comply with the procedures set out in this ordinance and any regulations made under it; or
(b) made an error of law; or
(c) failed to comply with a policy of the Commission developed under section 87(2)(a), which resulted in unfairness to the offender; or
(d) based its decision on erroneous or irrelevant information that was material to the decision reached; or
(e) acted without jurisdiction.
(4) A review under this section must be undertaken, as soon as practicable, by the chairperson or by a committee convenor to whom the chairperson delegates the conduct of the review.
(5) Following a review, the reviewer must—
(a) confirm, quash, or amend the decision; or
(b) refer the matter back to the Commission with a direction to reconsider and decide the matter.
(6) for the purposes of an appeal under section 65—
(a) a decision to confirm, quash or amend the decision is the final decision of the Commission; and
(b) a decision of the Commission taken following a reconsideration in accordance with a referral under subsection (5)(b) is the final decision of the Commission.
Appeals to Supreme Court
65.—(1) An offender who is subject to a postponement order or a final recall order may, within 28 days of the date of the decision on a review under section 64 (or whatever longer time the Court permits), appeal to the Supreme Court against the decision on the grounds that the order ought not to have been made.
(2) No appeal may be made under this section until the decision to make the order has been reviewed under section 64.
(3) If an offender lodges an appeal, he or she remains subject to the order while the appeal is determined.
(4) In the case of an appeal against a final recall order, without limiting the matters that the Court may consider in determining the appeal, the Court must consider the need to protect the community or any person or class of persons.
Procedure on appeals
66.—(1) An appellant must forward a copy of his or her appeal to the Commission.
(2) On receiving a copy of an appeal, the Commission must forward to the Registrar of the Supreme Court all information in its possession regarding the decision appealed against.
(3) The Registrar of the Supreme Court must, on receipt of the information from the Commission, set down the appeal for hearing on the first practicable sitting day in the most convenient place where sittings of the Supreme Court are held, and must notify the appellant and the Commission accordingly.
(4) Subject to this section and, with any necessary modifications, the provisions of sections 11, 14 and 22 of the Judicature (Appeals in Criminal Cases) Ordinance shall apply to an appeal under section 65 as if the order appealed against were an order made by the Magistrate's Court.
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(5) On an appeal under section 65, the Court may receive in evidence anything that the Commission could have received at first instance.
(6) The Court is not bound to allow the appeal on the ground merely of the improper admission or rejection of evidence unless, in the opinion of the Court, a substantial wrong or miscarriage of justice occurred because of it.
Powers of Court on appeal
67.—(1) On an appeal against a postponement order, the Court may—
(a) confirm, quash or amend the order; or
(b) refer the matter back to the commission with a direction to reconsider and decide the matter, in which case it must—
(i) advise the Commission of its reasons for doing so; and
(ii) give the Commission any directions that it thinks just concerning any aspect of the reconsideration.
(2) On an appeal against a final recall order, the Court may—
(a) confirm the order; or
(b) quash the order and. unless the offender is liable to be detained under this or any other enactment—
(i) direct the release of the offender from custody; or
(ii) direct the release of the offender on standard release or standard detentions conditions (in which case the conditions are deemed to have been imposed by the Commission) and refer the offender to the Commission for consideration of whether to impose any special conditions; or
(c) refer the matter back to the Commission with a direction to reconsider and decide the matter, in which case it must—
(i) advise the Commission of its reasons for doing so; and
(ii) give the Commission any directions that it thinks just concerning any aspect of the reconsideration.
Offences
Offence to commit breach of conditions
68.—(1) Every offender commits an offence and is liable on summary conviction to imprisonment for a term not exceeding one year or to a fine not exceeding $2,000, who commits any breach, without reasonable excuse, of any release conditions or detention conditions imposed by the Commission.
(2) The conviction and sentencing of an offender under this section does not limit the power to recall the offender from parole, home detention, or compassionate release.
Offence to refuse entry to home detention residence
69. Every person commits an offence and is liable on summary conviction to three months' imprisonment or a fine not exceeding $5000, who refuses or fails, without reasonable excuse, to allow the Supervision Officer who has identified himself or herself as such to enter into a residence in which an offender is detained on home detention.
Arrest of offenders
Arrest without warrant
70.—(1) Any police officer may arrest, without a warrant, an offender whom the officer has reasonable grounds to believe is unlawfully at large.
(2) Any police officer or the Supervision Officer may arrest, without a warrant, an offender whom the police officer or Supervision Officer has reasonable grounds to believe has committed a breach of any of his or her release conditions or detention conditions.
Regulations
Regulations
71. The Governor may, from time to time, make regulations for all or any of the following purposes—
(a) prescribing forms for the purpose of this Part;
(b) prescribing the manner in which the key dates and non-parole periods of sentences of imprisonment are to be determined;
(c) providing that specified information must be given to offenders and prescribing the manner and form in which that information is to be given;
(d) regulating the operation of the Commission;
(e) prescribing offences in respect of the contravention of, or non-compliance with, any regulations made under this section and the amounts of the fines that may be imposed in respect of those offences;
(f) generally providing for any other matters that are contemplated by, or necessary for giving full effect to, this Part and its due administration.
Sentence Calculation
Cumulative sentences
Cumulative sentences form national single sentence
72.—(1) If, after the commencement date, an offender is sentenced to a sentence of imprisonment ( a later sentence) that is directed to be served cumulatively on another sentence (an earlier sentence), the later sentence and the earlier sentence form a notional single sentence for the purpose of determining—
(a) whether the offender is subject to a long-term sentence or a short-term sentence; and
(b) the non-parole period to apply when determining the offender's parole eligibility date; and
(c) the release date to apply when determining the offender's statutory release date.
(2) If the earlier sentence is part of a series of cumulative sentences, then all the sentences in that series, along with the later sentence, form a notional single sentence for the purpose described in subsection (1).
(3) Every sentence in a series of cumulative sentences links to the next one in the series at its sentence expiry date.
Start date of sentence of imprisonment
General rules about start date of sentence of imprisonment
73. The start date of a sentence of imprisonment imposed after the commencement date is the date on which the sentence is imposed, except as otherwise provided in sections 74 to 78.
Start date of notional single sentence
74. The start date of a notional single sentence is the start date of the first sentence in the series of sentences that forms the notional single sentence.
Deferred start date
75. If a Court defers a start date under any provision of law, the start date of the sentence of imprisonment is the date on which the offender is taken into custody after the expiry of the period specified by the Court.
Start date if new sentence replaces original sentence
76.—(1) Subject to this section, if a sentence of imprisonment is quashed or otherwise set aside and another sentence of imprisonment is substituted for it, the start date of the new sentence is the start date of the original sentence.
(2) Subsection (3) applies if—
(a) a sentence of imprisonment that was directed to be served cumulatively on another sentence or term is quashed or otherwise set aside; and
(b) a new sentence of imprisonment is substituted for the original sentence, but is not directed to be served cumulatively.
(3) In the situation described in subsection (2), the start date of the new sentence is the start date that the original sentence would have had if it had not been directed to be served cumulatively.
Start date after temporary surrender to Pitcairn
77.—(1) This section applies if an offender is temporarily surrendered to Pitcairn under the law of extradition in force in Pitcairn and—
(a) is convicted and sentenced to a sentence of imprisonment; and
(b) is required to be returned in accordance with such law to the country from which the offender was surrendered on completion of the proceedings to which the extradition related.
(2) Unless the Court otherwise directs, the start date of the sentence imposed is the date on which the person, having been returned to Pitcairn, is taken into custody.
(3) This section applies notwithstanding any other provision in this ordinance.
Start date of sentence of important when term imposed
78. If a person on whom a term of imprisonment is imposed for non-payment of a sum of money, disobedience of a court order or contempt of court is not already detained under a sentence of imprisonment, then the start date of the sentence of imprisonment is the day on which the person is taken into custody to serve the term imposed.
Sentence expiry dates
Sentence expiry date
79.—(1) The sentence expiry date of a determinate sentence is the date that is reached when the offender who is subject to the sentence has served the full term of the sentence.
(2) The sentence expiry date of a notional single sentence is the sentence expiry date of the last sentence in the series of sentences that forms the notional single sentence.
(3) An indeterminate sentence has no sentence expiry date.
Non-parole periods
Non-parole periods
80.—(1) The non-parole period of a long-term determinate sentence is one-third of the length of the sentence, unless the sentence is one to which subsection (2) or subsection (4) applies.
(2) The non-parole period of a sentence in respect of which the Court has imposed a minimum term of imprisonment is the minimum term imposed.
(3) The non-parole period of a sentence of imprisonment for life (other than one in respect of which the Court has imposed a minimum term of imprisonment) is ten years.
(4) The non-parole period of a long-term notional single sentence is the total obtained by adding together all the non-parole periods of every sentence that makes up the notional single sentence.
(5) For the purpose only of calculating the non-parole period of a long-term notional single sentence, every short-term sentence within the notional single sentence must be treated as if it had a non-parole period of one-third of its length.
Release dates
Release date of sentence
81.—(1) The release date of a short-term sentence (including a short-term notional single sentence) is the date on which the offender who is subject to the sentence has served half of it.
(2) The release date of a long-term sentence determinate sentence (including a long-term notional single sentence) is its sentence expiry date.
(3) An indeterminate sentence has no release date.
Determining key dates
Supervision Officer must determine key dates etc.
82.—(1) The Supervision Officer must ensure that the key dates and non-parole period of every sentence to which an offender is subject and the offender's parole eligibility date and statutory release date (if any) are determined in accordance with this Part and any regulations made under this ordinance.
(2) Notwithstanding subsection (1), the non-parole period and release date of every sentence imposed on an offender need not be determined if the offender's parole eligibility date and statutory release date (if any) may be correctly calculated without determining all the non-parole periods and release dates.
(3) A determination under this section may be revised at any time.
Period spend in pre-sentence detention deemed to be time served
[82A.For the purpose of calculating the key dates and non-parole period of a sentence of imprisonment (including a notional single sentence) and an offender's statutory release date and parole eligibility date, an offender is deemed to have been serving the sentence during any period that the offender has spent in pre-sentence detention.
(2) Where an offender is subject to 2 or more concurrent sentences,
(a) the amount of pre-sentence detention applicable to each sentence must be determined; and
(b) the amount of pre-sentence detention that is deducted from each sentence must be the amount determined in relation to that sentence.
(3) Where an offender is subject to 2 or more cumulative sentences that make a notional single sentence, any pre-sentence detention that relates to the cumulative sentences may be deducted only once from the single notional sentence.
Meaning of pre-sentence detention
82B.—(1) Pre-sentence detention is detention of a type described in subsection (2) that occurs at any stage during the proceedings leading to a conviction or pending sentence of the person, whether that period (or any part of it) relates to—
(a) any charge on which the person was eventually convicted; or
(b) any other charge on which the person was originally arrested; or
(c) any charge that the person faced at any time between his or her arrest and before conviction.
(2) The types of detention that are pre-sentence detention are—
(a) detention in a prison pursuant to section 4 of the Prisons Ordinance;
(b) detention in a New Zealand prison pursuant to section 38(2) of the Pitcairn Trials Act 2002 (NZ);
(c) detention in a New Zealand hospital or other similar institution pursuant to section 46 of the Pitcairn Trials Act 2002 (NZ).
(3) In the case of a person who is convicted of an offence following upon his or her extradition to the Islands, pre-sentence detention includes detention in custody overseas in relation to that extradition provided that the length of such detention is recorded in a certificate supplied by the competent authority in the overseas country from which the person was extradited.
(4) The certificate referred to in subsection (3) shall be sought by the Governor from the competent authority in the country from which the person was extradited.
(5) In the event that no such certificate is made available, then the length of pre-sentence detention shall be determined having regard to the information that is available to the Governor, provided that the Governor is satisfied the information is accurate.
(6) Detention that would, under subsection 2 or 3, be pre-sentence detention, is not pre-sentence detention if the offender was, during that detention,—
(a) serving a sentence of imprisonment in a penal institution or on home detention; or
(b) in the case of a person who was extradited to the Islands, detained in custody under a sentence for an offence imposed under the law of the country from where the offender was extradited tinder the request for extradition.
Islands time to be used in calculating key dates
82C.—In any case where the calculation of key dates or non-parole periods depends in whole or part upon the time at which an event (such
as the commencement of pre-sentence detention) occurred in some place outside the Islands, the time at which that event took place
shall he expressed in Islands time and the key dates or non-parole period shall be calculated accordingly.]
(Inserted by Ordinance No. 2 of 2007)
Time ceases to run in certain circumstances
83. For the purpose of calculating how much time an offender who is subject to a sentence of imprisonment has served, time ceases to run—
(a) for an offender detained in a penal institution, during any period when the offender is unlawfully at large from detention; and
(b) for an offender on parole or compassionate leave, during any period between the date on which an application for a recall order is lodged and the date on which the offender is next taken in to custody; and
(c) for an offender on home detention, during any period between the date on which an application for a recall order is lodged and the earlier of—
(i) the date on which the offender is next taken into custody; and
(ii) the date on which the offender resumes serving his or her sentence by way of home detention in accordance with his or her detention conditions.
Time on bail pending appeal does not count as time served
84. Any time during which an offender is released from detention on bail pending an appeal does not count as time served under any sentence.
Period between quashed sentence and new sentence does not count as time served
85.—(1) Subsection (2) applies if—
(a) a sentence of imprisonment is passed on the conviction of an offender; and
(b) that conviction is subsequently quashed and a new hearing or a new trial is ordered; and
(c) following a new hearing or a new trial, the offender is again convicted and a new sentence of imprisonment is imposed on the offender.
(2) In the situation in subsection (1), the period commencing on the quashing of the first sentence and the imposition of the new sentence does not count as time served under the new sentence.
Part III
Pitcairn Parole Commission
Establishment of Commission
Pitcairn Parole Commission established
86. The Pitcairn Parole Commission is established as an independent statutory body.
Function of Commission
87.—(1) The functions of the Commission are—
(a) to consider offenders for parole and, if appropriate, to direct offenders to be released on parole (under sections 17 to 29);
(b) to consider offenders for home detention and, if appropriate, to direct offenders to continue serving their sentences by way of home detention (under sections 30 to 37);
(c) to consider offenders for release on compassionate release and, if appropriate, to give a direction for their release on compassionate grounds under section 38;
(d) to set the conditions for—
(i) offenders released at their statutory release date (under section 15); and
(ii) offenders released on parole or compassionate release; and
(iii) offenders detained on home detention; and
(iv) offenders released at their final release date under section;
(e) to consider and determine applications for—
(i) the variation and discharge of release conditions and detentions conditions under section 55; and
(ii) interim and final recall from parole, home detention or compassionate release;
(f) to make postponement orders under section 24 in relation to offenders;
(g) to make and review orders under this ordinance;
(h) to review decisions in accordance with section 64;
(i) to do anything else required under this ordinance or any other enactment.
(2) The Commission also has the following functions—
(a) to develop policies on how to discharge its function under this section and to amend and revise those policies as it sees fit;
(b) to maintain a register of Commission decisions;
(c) to keep statistical and other records relating to its work;
(d) to provide information that is readily accessible to offenders, victims and the general public about matters relating to release from detention and the policies and operation of the Commission generally.
Administrative and training support for Commission
88.—(1) The Supervision Officer must ensure that the Commission and the chairperson are provided with the administrative and training support necessary to enable them to perform their functions efficiently and effectively.
(2) The support must include the following—
(a) support on a regional basis for parole committees operating within the territorial jurisdiction of the Courts;
(b) co-ordination of the timetable for, and membership of, parole committees;
(c) support for the Commission in performing its functions under section 87(2);
(d) support for the chairperson in performing his or her functions under section 90;
(e) support for committee convenors in performing their functions under section 90(3);
(f) making available appropriate induction and training for Commission members.
Membership of Commission
Membership of Commission
89.—(1) The Commission consists of members who are appointed by the Governor on the recommendation of the [Attorney General].
(2) The Commission must include—
(a) one member who is appointed as chairperson; and
(b) at least nine members who are appointed as committee convenors; and
(c) a sufficient number of other members to enable the Commission to carry out its functions efficiently and effectively.
(3) Before recommending a person as a member, the [Attorney General] must be satisfied that the person has—
(a) knowledge or understanding of the criminal justice system; and
(b) the ability to make a balanced and reasonable assessment of the risk an offender may present to the community when released from detention; and
(c) the ability to operate effectively with people from a range of cultures; and
(d) sensitivity to, and understanding of, the impact of crime on victims.
(Amended by Ordinance No. 4 of 2010)
Chairperson of Commission
90.—(1) The member appointed as chairperson must be a Judge of the Supreme Court or a former Judge of the Supreme Court or a Magistrate or a former Magistrate.
(2) The primary function of the chairperson is to ensure that the Commission carries out its function in accordance with this ordinance in an efficient and effective manner.
(3) Without limiting the function described in subsection (2), it is also the function of the chairperson to—
(a) make referrals to the Commission for early release under section 22; and
(b) make referrals to the Commission for compassionate release under section 38; and
(c) make interim recall orders under section 59; and
(d) allocate committee convenors to undertake reviews of decisions under section 64; and
(e) do anything else that the chairperson is required to is under this ordinance or any other enactment.
(4) The chairperson may sit as a member (including as a committee convenor) at any committee hearing.
Delegation of chairperson's functions, powers and duties.
91.—(1) The chairperson may delegate any of his or her functions or powers to any one or more committee convenors.
(2) Every delegation must be in writing and may be revoked at will, either in writing or orally.
(3) A delegation under this section may not be further delegated.
(4) For the purpose of ensuring that the functions and powers of the chairperson are performed or exercised during any period when the chairperson is absent or incapacitated, the chairperson must ensure that all times he or she has nominated one committee convenor to serve as acting chairperson if the need arises.
(5) The fact that a person purports to exercise or to have exercised any function or power of the chairperson under a delegation or nomination is, in the absence of proof to the contrary, sufficient evidence of the person's authority to do so.
Committee convenors
92.—(1) Every member who is appointed as a committee convenor must be a Magistrate, a former Magistrate or a barrister or solicitor who has held a practising certificate admitting him or her to practise in Pitcairn or in any Commonwealth country, or both, for at least seven years.
(2) Notwithstanding subsection (1), at any time there may be appointed as a committee convenor one person who is a Judge of the Supreme Court or a former Judge of the Supreme Court.
(3) The functions of a committee convenor are—
(a) to make the decision on whether to hold an attended or an unattended hearing for any decision relating to release conditions, parole or home detention; and
(b) at a hearing—
(i) to preside at the hearing; and
(ii) to determine any matters of procedure that may arise during or in relation to the hearing; and
(iii) to sign the decision of the committee at that hearing; and
(c) to make interim recall orders under section 59; and
(d) to undertake reviews under section 64; and
(e) to do anything else that a committee convenor is required to do under this ordinance or any other enactment; and
(f) under the direction of the chairperson, to undertake or assist in the exercise of any of his or her functions.
(4) The chairperson may appoint any member (whether or not qualified to be a committee convenor) as an acting committee convenor in respect of a particular hearing or number of hearings if, for any reason, a committee convenor is not available for that hearing or those hearings.
(5) If the chairperson sits on a parole committee, he or she may act as a committee convenor for the purposes of that sitting; and for that purpose the chairperson has all the functions and powers of a committee convenor.
How Commission performs its functions
Parole Committees
93.—(1) The Commission must operate in committees of at least three members, one of whom must be a committee convenor or the chairperson.
(2) The decision of the majority of members of on a committee is the decision of the committee.
(3) Subsection (1) is subject to any other provision of this ordinance which requires or permits the Commission to perform its functions other than by way of committee hearings.
(4) Notwithstanding subsection (1), if a member leaves a hearing for any reason, the remaining two members may continue the hearing and, provided the absent member participates in the decision-making process, the validity of any resulting decision is not affected.
Decisions of Commission
94.—(1) A decision by a committee acting within its jurisdiction is a decision of the Commission.
(2) A decision by the chairperson or a committee convenor, acting within their respective jurisdictions, is a decision of the Commission.
(3) A decision of the Commission on the detention or release of an offender or on his or her release or detention conditions, must be in writing and include reasons for the decision.
(4) A copy of every decision of the Commission that relates to an offender must be given to—
(a) the offender to whom it relates; and
(b) the Supervision Officer.
Information before Commission
95.—(1) In any hearing before the Commission, the Commission may receive and take into consideration whatever information it thinks fit, whether or not the information would be admissible as evidence in a court of law.
(2) Information received by the Commission may be in a form other than writing, but only if the Commission is satisfied that—
(a) the information adds significantly to the written information available to it; and
(b) it will be possible, in relation to that information, to comply with the rule in section 10(1) about making information available to offenders.
Avoiding actual or perceived bias
96.—(1) The chairperson must ensure that no person involved in a parole committee hearing reviews a decision of that panel.
(2) The chairperson must, if he or she becomes aware that a member has, or may be perceived as having, bias for or against an offender, require the member to excuse himself or herself from—
(a) participating in a committee that considers an application by or relating to the offender; and
(b) making, or participating in making, any other decision under this ordinance that relates to the offender.
General provisions about Commission and members
Annual report
97.—(1) The Commission must, within two months of the end of each calendar year, give the [Attorney General] an annual report on
the operation of the Commission and the performance of its functions, during the financial year.
(Amended by Ordinance No. 4 of 2010)
(2) The Commission's annual report must include
(a) information about every referral made by the chairperson to the Commission for early consideration for parole and for compassionate release; and
(b) information about every class designated by the Governor under section 22(3) for early consideration by the Commission for parole.
Term of appointment and reappointment
98.—(1) Every member, including the chairperson, must be appointed for a term of three years or less.
(2) A member continues in office despite the expiry of his or her term of office until—
(a) the member is reappointed; or
(b) the member's successor is appointed; or
(c) the [Attorney General] informs the member in writing that the member is not to be reappointed and that no successor is to be appointed at that time.
(Amended by Ordinance No. 4 of 2010)
(3) A member who is involved in a hearing that is not complete on the date that he or she ceases to be in the office may complete the hearing after that date and is, for that purpose, deemed to be in office until the hearing is complete.
(4) Any member may be reappointed any number of times.
Remuneration and expenses of members
99.—(1) A member may at any time resign from office by written notice to the Governor.
(2) The Governor may at any time, on the recommendation of the [Attorney General], remove a member from office for just cause; and
the member is not entitled to compensation for removal.
(Amended by Ordinance No. 4 of 2010)
Members ceasing to hold office
100.—(1) The remuneration of any member who is a Magistrate or a Judge of the Supreme Court must, so far as it relates to his or her membership of the Commission, be determined by the Governor.
(2) Every other member must be paid fees and expenses in accordance with the framework determined by the Governor from time to time for the classification and remuneration of statutory and other bodies.
(3) A person is not employed in the service of the Crown, merely as a result of being a member of the Commission.
Immunity of members
101. No member is personally liable for any act or omission done in pursuance, or intended pursuance, of the Commission's functions, unless the act or omission was done in bad faith.
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