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Penal Manual 2006

NIUE LAWS
LEGISLATION AS AT DECEMBER 2006

PENAL MANUAL 2006

2006/3 – 26 September 2006

PART 1
GENERAL

1 Short title
2 Definitions
3 Principles and purposes and of the penal system
4 General instructions
5 Admission and discharge
6 General provisions as to discipline and control
7 Constables
8 Legal adviser
9 Visits
10 Release under special circumstances

PART 2
WELFARE OF INMATES

11 Religion
12 Education and library
13 Health
14 Accommodation, bedding and clothing
15 Food
16 Inmates awaiting trial
17 Inmates under the age of twenty-one
18 Inmates - good behaviour and remission
19 Inmates hours of work
20 Earning of inmates
21 Transfer of inmates to New Zealand

PART 3
DUTIES AND RESPONSIBILITIES OF PRISON OFFICERS

22 Management and control
23 Overall supervision
24 Keeping and maintaining official records
25 Prison officers and performance of duties
26 Instructions in the event of an emergency
27 Cases of emergency and lawful orders
28 Association other than in performance of duties with inmates prohibited
29 Personal visitors’ alcohol prohibited
30 Employment grievances
31 Officers hours of work

PART 4
PAROLE SYSTEM

32 Parole Board
33 Eligibility for parole
34 Jurisdiction of the Controller
35 Term of parole
36 Term of parole deemed part of sentence
37 Conditions of parole
38 Breach of parole
39 Recall of offender released on parole
40 Appointment of Parole Officers
41 Duties and responsibilities

PART 5
PROBATION SERVICE

42 Administration
43 Probation orders issued by Court
44 Conditions of release
45 Additional conditions may be imposed by Court
46 Breach of conditions of probation
47 Probation Officers report
48 Procedure for sentence on original sentence
49 Effect of subsequent sentence on probation
50 Discharge on expiry of probation
51 Probation Officers
52 Duties and responsibilities
53 Powers

PART 6
PRISON DISCIPLINE

54 Prison discipline
55 Offences by inmates relating to drugs and alcohol
56 Attempting or aiding commission of offence against discipline
57 Minor or unintentional breaches of discipline

PART 7
COMPLAINTS PROCEDURE

58 Purposes and objectives of complaints procedure
59 Prison, parole office and probation office must have internal complaints procedure
60 Assistance to make complaints
61 Persons under or previously under control
62 Investigation of complaints by Controller
63 Powers of entry and access by Controller
64 Interviews with Controller
65 Recommendations and directions of Controller

PART 1
GENERAL

1 Short title

This manual may be cited as the Penal Manual 2006.

2 Definitions

In this Manual –

"Controller" means the person appointed as Controller of Prisons for Niue;

"inmate" means a person confined in a prison to serve a sentence upon conviction; "Judge" in relation to the High Court, means any Judge of that Court;

"night or night – time" means the interval between half past six o’clock in the evening and half past six o’clock in the morning";

"offender on remand" means a person detained by any agency of the Government of Niue, authorized to arrest and detain offenders;

"Superintendent" means the person appointed as superintendent of a prison.

3 Principles and purposes and of the penal system

(1) The purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by –

(a) Ensuring that the community-based and custodial sentences and related orders that are imposed by the courts and the Parole Board are administered in a safe, secure, humane, and effective manner; and

(b) Providing for corrections facilities to be operated in accordance with these regulations and the United Nations Standard Minimum Rules for the Treatment of Prisoners; and

(c) Assisting in the rehabilitation of offenders and their reintegration into the community, where appropriate, and so far as is reasonable and practicable in the circumstances and within the resources available, through the provision of programmes and other interventions; and

(d) Providing information to the courts and the Parole Board to assist them in decision-making.

(2) The principles that guide the operation of the corrections system are that—

(a) The maintenance of public safety is the paramount consideration in decisions about the management of persons under control or supervision;

(b) Victims’ interests must be considered in decisions related to the management of persons under control or supervision;

(c) In order to reduce the risk of reoffending, the cultural background, ethnic identity, and language of offenders must, where appropriate and to the extent practicable within the resources available, be taken into account—

(i) in developing and providing rehabilitative programmes and other interventions intended to effectively assist the rehabilitation and reintegration of offenders into the community; and

(ii) in sentence planning and management of offenders;

(d) Offenders must, where appropriate and so far as is reasonable and practicable in the circumstances, be provided with access to any process designed to promote restorative justice between offenders and victims;

(e) An offender’s family must, so far as is reasonable and practicable in the circumstances and within the resources available, be recognised and involved in –

(i) decisions related to sentence planning and management, and the rehabilitation and reintegration of the offender into the community; and

(ii) planning for participation by the offender in programmes, services, and activities in the course of his or her sentence;

(f) The corrections system must ensure the fair treatment of persons under control or supervision by –

(i) providing those persons with information about the rules, obligations, and entitlements that affect them; and

(ii) ensuring that decisions about those persons are taken in a fair and reasonable way and that those persons have access to an effective complaints procedure;

(g) Sentences and orders must not be administered more restrictively than is reasonably necessary to ensure the maintenance of the law and the safety of the public, corrections staff, and persons under control or supervision;

(h) Offenders must, so far as is reasonable and practicable in the circumstances within the resources available, be given access to activities that may contribute to their rehabilitation and reintegration into the community;

(i) Contact between prisoners and their families must be encouraged and supported, so far as is reasonable and practicable and within the resources available, and to the extent that this contact is consistent with the maintenance of safety and security requirements.

(3) Persons who exercise powers and duties under these regulations must take into account the principles set out in paragraph (2) that are applicable, so far as is practicable in the circumstances.

4 General instructions

(1) There shall be a Controller who shall have the prime responsibility for the application of the purposes and principles set out in regulation 3.

(2)

(a) Except with the express permission of the Controller no person (including any officer or employee of the Department of Police or of Justice, Lands and Survey) is permitted to enter the prison compound at any time.

(b)This rule does not apply to a person with whom the Controller has made arrangements to conduct spiritual devotionals for the welfare of inmates.

(3)

(a) The Superintendent may refuse to admit to the prison any visitor whose conduct is improper, and may for that purpose use or authorize the use of such force as may be necessary.

(b)Incidents of such nature shall be reported immediately to the Controller or appropriate authority.

(4) The prison cells for the detention of inmates shall be secured by locks and keys retained by the Superintendent or his substitute who is on duty.

(5) The Niue Public Service Commission on advice of the Controller shall set the hours of duty to be observed by the Superintendent and other prison officers each day of the week or month, as the case may be and in accordance with regulation 31.

5 Admission and discharge of prisoners

(1) There shall be an admission register, in which there shall be entered in respect of each inmate the following particulars –

(a) Information concerning his identity (name, sex, village or home address, telephone number);

(b) Authority for his committal and offence committed;

(c) Admission and discharge dates;

(d) Other particulars as may be directed by the Controller.

(2) Every inmate upon admission shall be searched, and all property taken from him shall be recorded and returned to him on the date of his release.

(3) The Superintendent shall be responsible for the safekeeping of inmates’ property while in prison custody.

(4) The Record Property Sheet shall be signed by the inmate, as acknowledgement of receipt his property.

6 General provisions as to discipline and control

(1) Discipline and order shall be maintained with firmness and fairness.

(2) Treatment of inmates shall have regard to the aim of rehabilitation, encouragement of self-respect and a sense of personal responsibility.

(3) Prison officers shall exercise the utmost care and vigilance in the custody and surveillance of the inmates under his charge and shall not part with the custody of an inmate.

(4) No prison officer shall use force in dealing with any inmate except in self-defence or in defence of another person or in the case of escape or attempted escape or active or passive physical resistance to a lawful order.

(5) Any prison officer who uses force subject to paragraph (4) shall report the incident to the Controller as soon as possible.

(6) Every inmate must promptly obey every lawful order that is given to him.

(7) Any inmate who considers himself aggrieved by an order must nevertheless obey, but may on the first convenient occasion complain to the Controller.

(8) Every inmate must keep their person, sleeping quarters, eating materials and furniture in the highest state of cleanliness and tidiness.

7 Constables

(1) Any constable may visit any inmate provided the Superintendent is present at the time of interview.

(2) If an inmate express unwillingness to see the Police the visit may be terminated forthwith.

8 Legal adviser

(1) The legal adviser of any inmate may, with the prior permission of the Controller interview the inmate on any legal business not pertaining to the discipline of the prison.

(2) Any abuse of this privilege by the legal adviser or any assistant will result in the approval being withdrawn automatically.

9 Visits

(1) Inmates shall be permitted to receive visitors on Saturdays and Sundays or any week day provided the Superintendent is satisfied that the reason(s) given are valid and may not affect the security or discipline of the Prison.

(2) The time allocated for each visitor shall be at the discretion of the Superintendent and in special cases the approval of the Controller must be sought.

(3) Prison cells are out of bounds to visitors, except as provided under paragraph (1).

10 Release

(1) The Controller may in special circumstances apply the following general provisions –

(a) A weekend release may be granted for inmates serving a sentence of 6 months or more and who is known to be a family man with a spouse rearing a large or young family but such a release shall be considered a privilege and can be taken away at any time;

(b) Temporary release to attend the wake and funeral of any local member of the family may be granted to any inmate provided a request is made to the Controller;

(c) Inmate(s) on a weekend or temporary release is responsible for their own transport to and from the prison custody;

(d) In every other case the application by inmates for a temporary release shall be considered on merits.

(2) The Controller alone shall be responsible for dealing with the application of paragraph (1).

PART 2
WELFARE OF INMATES

11 Religion

(1) The Controller may enter into arrangements with any church or organization for the appointment of a Minister of religion to conduct services and religious observances once a week.

(2) With the approval of the Controller, services may be held at the prison compound on Sundays, Good Friday or Easter holiday and Christmas Day.

(3) Any Minister of religion may at convenient times, visit any inmate for whom he or she has pastoral responsibility, subject however to prior arrangements with the Controller or the Superintendent.

(4) The Controller may exempt any inmate from working on any day of his recognized days of religious observances.

12 Education and library

(1) Inmates interested in furthering their education by correspondence or other means may be permitted to do so by special arrangements with the Controller.

(2) There shall be a prison library providing reading materials for inmates and to be opened at times and dates approved by the Superintendent.

13 Health

(1) Notwithstanding regulation 4(2) the medical officer shall visit the prison at such periods as may be specified by the Controller or any other time as requested by the Superintendent.

(2) This condition also applies to the professional services provided by the Dental Officer in the case of dental problems.

(3) The Superintendent or any prison officer on duty shall provide the medical or dental officer any information relevant to the cause of health problems of any inmate.

(4) Inmates suffering from any contagious or infectious disease may be removed from the prison on recommendation of the medical officer provide however the Controller is informed prior to the inmate’s removal from custody.

(5) The Superintendent shall immediately notify the Controller, and where practicable, the next of kin of the deceased whenever any inmate –

(a) Becomes seriously ill or suffers injury;

(b) Removed to the hospital; or

(c) Suffers death.

(6) The Superintendent shall at once inform an inmate of any intimation he receives of the death or serious illness of any near relative of the inmate.

14 Accommodation, bedding and clothing

(1) Prison cells are provided to accommodate no more than four inmates at any one time and such arrangements must comply with the prevailing health standard.

(2) A separate bunk bed is provided for each inmate in each of the cells, and following the usual practice, inmates are expected to supply their own personal bedding as well as outdoor working clothes, except in special cases where circumstances demand the prison authority may supply the needs of an inmate but not otherwise.

(3) Washing facilities are also available for inmates to wash their own clothes at times approved by the Superintendent.

15 Food

(1) Every inmate shall be supplied with a sufficient quantity of wholesome food, but generally the diet shall on each day consist of – Bread or hard biscuits 1/2 loaf or 1/2 dozen biscuits per inmate per day. Tin of meat/fish 1/2 tin of meat/fish per inmate per day. Sugar, milk and tea sufficient supply per day. Rice or any substitute sufficient for an evening meal or 1 bowl of rice per day per inmate. Local food/vegetable when available

(2)

(a) Provisions for special diet can be arranged on recommendation of a medical officer.

(b) Basic cooking facilities and utensils are available for inmates to cook their own food.

(c) Cooking utensils, plates and cups used for serving food and drink must be washed and kept clean at all times.

(3) Notwithstanding the standard supply of food and diet listed above every effort shall be made by the prison authority to initiate and foster planting programmes under supervision that would eventually lead to the prison being self – sufficient in local food supplies both in vegetables and fresh local meat.

16 Inmates awaiting trial

(1) An offender awaiting trial must not under any circumstances be placed in a cell which has already been occupied by an inmate and shall, as far as practicable be kept apart from other inmates.

(2) The expression offender awaiting trial means an offender detained only by reason of fact that he is awaiting trial or is in remand during the trial or before sentence.

(3) Any interview between an offender awaiting trial and his legal adviser may be held in sight, but not within the hearing of a prison officer.

(4) Every offender awaiting trial shall be permitted to procure at his own expense or receive from his friends reasonable quantities of food and other necessities for his own use.

(5) An offender awaiting trial is not required to work unless he volunteers to do so.

17 Inmates under the age of twenty-one

Except during working hours, library or income working projects an offender(s) awaiting trial or an inmate under the age of 21 years shall be kept in a cell separately from other inmates over that age.

18 Inmates good behaviour and remission

(1) An inmate serving an imprisonment sentence of 3 to 6 months maximum shall be allocated marks on the basis of good behaviour and diligence.

(2) The maximum number of marks which an inmate may be allocated per day is limited to five only.

(3)

(a) For the purpose of the partial remission of sentences, every 15 marks allocated shall represent one day’s remission.

(b) The Controller may, in recommending or granting any such remission, take into account any other matter he considers relevant to an assessment of the inmates good conduct and diligence during his sentence.

(4) An inmate shall be notified of the number of marks (if any) of any remission represented by those marks at the end of each month.

19 Inmates hours of work

The following is the standard working hours: Monday to Friday - 6am to 5.00pm with 1 hour break for lunch. Saturday - 7:30am to 12.00pm. Afternoon for general clean up and laundry needs. Sunday - rest day but confined to prison compound. Christmas/New Year/ Constitution Day - free but confined to prison compound.

20 Provision as to earning of inmates

Income earning projects are subject to separate and special arrangements as determined by the Controller.

21 Transfer of inmates to New Zealand

Provisions relating to the transfer of inmates are contained in section 243 of the Niue Act 1966.

PART 3
DUTIES AND RESPONSIBILITIES OF PRISON OFFICERS

22 Management and control

(1) The Superintendent is charged with the control, management, order, and discipline of the prison, safe custody of inmates, and all Government property.

(2) At least once a week and on uncertain hours he shall visit the prison at night and satisfy himself that all is in order.

(3) The Superintendent shall not be away from the vicinity of the prison for more than 24 hours at a time without previously notifying the Controller.

(4) Before leaving the prison on any occasion he shall transfer charge to his deputy or to the prison officer whom under these instructions is answerable to the Controller for the control and supervision duties.

(5) If he is unable through sickness to perform his duties he shall transfer charge to his deputy and report absence to the Controller.

(6) In the absence of the Superintendent, the Deputy shall have charge of the prison and responsible in the same manner as the Superintendent.

(7) The Deputy Superintendent shall have such other powers to carry out duties as delegated by the Superintendent.

23 Overall supervision

(1) The Superintendent shall exercise a close and constant personal supervision of the whole prison, and shall see as far as practicable that each inmate is known to him.

(2) He shall at reasonable intervals inspect all parts of the prison and shall give special attention to any inmate who is sick or under restraint or undergoing confinement in a cell or upon restricted intake of food or diet.

(3) He shall satisfy himself that all occupied prison cell are locked at appropriate times, and keys are kept at the authorised place or in possession of the officer of duty.

(4) He shall require reports accounting for all inmates to be made to him at the hour of final lock – up, at such times as inmates go and return from work and at such times as he considers necessary.

(5) The Superintendent shall report promptly to the Controller whenever any inmate –

(a) Escapes; or

(b) Is captured after an escape; or

(c) Is placed under mechanical restraint; or

(d) Involved in an accident.

(6) The Superintendent may at any time refuse to allow any person access to the prison compound if there is cause to suspect that liquor or any prohibited item is to be brought into the compound.

24 Keeping and maintaining official records

The Superintendent shall cause to be kept the following record books and such other books and records as may from time to time be directed by the Controller:

(a) Admission register including information on discharge;

(b) Inmates Property Record book;

(c) File containing Warrants;

(d) Lock-up Report book;

(e) Punishment Record book;

(f) Official Visitors’ book; and

(g) Visitors’ book.

25 Prison Officers and performance of duties

(1) Every prison officer shall perform such duties as the Superintendent directs from time to time, and carry out any extra or special duty when directed.

(2) Unless the Controller directs otherwise, the control of the prison shall in the absence of the Superintendent and his Deputy fall on the next senior prison officer.

(3) Any prison officer who is in charge of the prison under paragraph (2) shall for the time being be responsible as if he were the Superintendent, and shall exercise all powers vested by this Penal Manual in the Superintendent.

26 Instructions in the event of an emergency

(1) The Superintendent shall cause to be prepared a set of instructions to be followed in the event of any emergency such as fire or hurricanes and shall note these instructions and any change subsequently made to him in his order book.

(2) He shall see that all inmates are fully instructed in their duties in the event of fire or hurricanes, and shall ensure that appropriate authorities are informed promptly.

27 In cases of emergency and lawful orders

(1) In any case of emergency every prison officer under the control of the Superintendent is expected to act promptly, to use his own judgment, and to exercise initiative.

(2) Every officer shall obey without question any lawful order given by the Superintendent or his substitute, but he may afterwards appeal to the Controller if he by any reason disagrees with the order given at the time.

28 Association other than performance of duties with inmates prohibited

(1) Except in the performance of his official duties no prison officer shall associate in nay way with any of the inmates under his charge.

(2) No officer at any time shall receive any money, reward, trades; enter into an agreement or benefit of any kind from or on behalf of any inmate.

(3) Unless authorized in writing by the Controller no officer shall purchase any article from, belonging or made in prison, or have work done for him by an inmate.

29 Personal visitors - alcohol prohibited

(1) Except with the permission of the Controller, no officer shall be permitted to receive or take personal visitors within any part of the prison other than the officer’s quarters.

(2) No officer shall have or use intoxicating liquor within any part of the prison compound or within close proximity to the inmates’ quarters.

30 Employment grievances

(1) Any officer wishing to bring any matter before the Controller may make a written statement to the Superintendent, who shall forthwith forward the statement with his comments to the Controller.

(2) Any officer may elect to join the Niue Public Service Association and may either alone or in company with any other officer make representation to the Association on any matter relating to the salaries, wages, allowances, uniforms or condition of employment of officers.

31 Prison officers' hours of work

(1) The Superintendent is required to work standard working hours each day or week days as prescribed by the Commission under regulation 40 of the Public Service Regulations 2004.

(2) For any other prison officer the Commission on the advice of the Controller shall prescribe the hours of work each day but generally under a weekly or monthly roster system as deemed appropriate.

PART 4
PAROLE SYSTEM

32 Parole Board

The Parole Board established under section 286A of the Niue Act 1966 and shall together with Parole Officers administer the parole system.

33 Eligibility for parole

(1) Every offender shall be eligible for consideration by the Minister for Justice for release on parole upon recommendation by the Controller of Prison or upon the expiry of the following periods since serving the prison sentence –

(a) 10 years in the case of every offender undergoing imprisonment for life, having been sentenced to death and the sentence having been commuted to life imprisonment;

(b) 8 years in the case of every other offender undergoing imprisonment for life;

(c) 1 year after the expiration of one – half of the term of the sentence, whatever period is longer in the case of every offender undergoing a sentence of one – year or more than a sentence of life imprisonment.

(2) In considering any case under parole the Minister shall not be required to interview the offender.

34 Jurisdiction of the Controller

The Chief of Police through the Parole Officer shall have jurisdiction in respect of persons released on parole after serving a sentence in prison.

35 Term of parole

Where any offender who is detained under sentence of imprisonment for a year or more, not being imprisoned for life, is released from detention before the expiry of the minimum term for which he is liable to be detained under sentence, he shall be on parole, from the time of release, until the expiry of the term of his sentence, or for one year if the unexpired part of that term is less than a year.

36 Term of parole to be deemed part of sentence

Whenever any person detained under any sentence is released on parole before the expiry of the sentence, the term of the sentence shall continue to run while he is on parole as if he were still serving the sentence.

37 Conditions of parole

(1) Where any offender is released on parole the following general conditions shall apply –

(a) He shall report in person to the Parole Officer whose office is located as appointed by the Commission, within 24 hours after his release on parole;

(b) He shall give the Parole under whose supervision he is for the time being, reasonable notice of his intention to move from his village of residence to any other village or district, together with the nature and place of his employment;

(c) He shall not reside at an address that is not approved by the Parole Officer;

(d) He shall not continue in any employment that is not approved by the Parole Officer;

(e) He shall not associate with any specified person, or with persons of any specified class, with whom the Parole Officer has, in writing, warned him not to associate; and

(f) He shall be of good behaviour and shall not commit any offence against the law.

(2) Every paroled offender shall be under the direct supervision of a Parole Officer.

(3) Any paroled offender through the Parole Officer may at any time apply to the Controller for the remission, suspension or variation of any general or special condition of parole, and the Controller may, and in writing, suspend the condition until the application has been heard by the Court.

(4) The Parole Officer may apply to the Court through the Controller for the imposition of any additional condition of parole in respect of any paroled offender under his supervision.

38 Breach of conditions of parole

(1) Every paroled offender who contravenes or fails to comply with any condition of his parole shall be dealt with in accordance with regulation 38(1).

(2) Where any Parole Officer or any cibstabke believes on reasonable grounds that any paroled offender had committed a breach of a condition of his parole, he may arrest the offender without a warrant and to dealt with in accordance with section 101 of the Niue Act 1966.

39 Recall of offender released on parole

(1)

(a) The Controller may, at any time while an offender is released on parole, direct that the offender be recalled.

(b) On the giving of the direction, the parole shall be deemed to be cancelled and the offender may be arrested without warrant by any constable, and shall be detained and shall continue to serve his sentence unless he is again released on the recommendation of some reputable person or persons of the village where the parole offender resided.

(c) Such a release shall not operate to extend term of the offender’s parole, beyond the date on which that term would have expired had he not been recalled.

(2) The authority conferred in paragraph (1) above may be exercised on such grounds as the Controller thinks fit, and whether or not the offender has committed a breach of the conditions of his parole.

40 Appointment of parole officers

The Niue Public Service Commission may appoint any person or the holder for the time being of any office or appointment in the Niue Public Service as a Parole Officer.

41 Duties and responsibilities

(1) The Parole Officer may, and shall when required by the Controller, report on the character and personal history of any person released on parole or undergoing a sentence of imprisonment with a view of assisting the Controller in determining the most suitable method of dealing with his case; and may in such report advise the Controller whether the offender would be likely to respond satisfactory to parole and whether special condition of parole should be imposed.

(2) Every Parole Officer shall –

(a) Supervise all persons placed under his supervision, with a view of assisting their social rehabilitation and preventing the commission of further offences; and

(b) Perform such other duties as directed by the Court or the Controller.

PART 5
PROBATION SERVICE

42 Administration

Regulations 42 to 49 shall be administered by the Controller under the jurisdiction of the High Court.

43 Probation orders issued by Court

(1) Any person convicted by Court of any offence punishable by imprisonment, may in its discretion, instead of sentencing him to prison, release the offender on probation for a period specified by the Court, being generally a period not less than 1 year and not more than 3 years.

(2) Where an offender is released on probation, the Court may also at the same time make an order to pay any fine authorized by law and impose any additional orders as it thinks fit.

(3)

(a) Any offender sentenced to imprisonment for a term less than 1 year may be considered for release on probation for a period not exceeding 1 year upon terms and conditions specified by the Court.

(b) In any such case the offender released on probation shall be under the supervision of the Probation Officer.

(4) In the event of any appeal or an application for leave to appeal, a release on probation shall be deemed to be a sentence, or if a fine is imposed, to be part of the sentence.

(5) Where any person is released on probation it is the duty of the Registrar to notify the Probation Officer accordingly.

(6) Where any person is released on probation the Probation Officer shall issue the probationer with a written notice setting out the conditions subject to which he has been released.

44 Conditions of release

Where any person is released on probation, the following general conditions shall be used as guidelines –

(a) To report to the Probation Officer immediately upon his release on probation and shall further report to endorse the probation register if and when he is required to do so by the Probation Officer;

(b) To give to the Probation Officer reasonable notice of his intention to move away from his usual place of residence and his new address, the nature and place of employment;

(c) Not to reside at an address that is not approved by the Court or Probation Officer;

(d) Not to continue in any employment or continue to engage in any occupation that is not approved by the Court or Probation Officer;

(e) Not to associate with any specified person or persons of any specified group, with whom the Court or Probation Officer has, in writing, warned him not to associate;

(f) He shall be in good behaviour and commit no further offence against the law;

(g) To be engaged on approved community service or national projects or any other work considered to be of some benefit to the people or island as a whole.

45 Additional conditions may be imposed by Court

The High Court in releasing any person on probation may impose additional conditions as it thinks fit or on the basis of the following –

(a) Direct the probationer to remain within his usual place or residence or village throughout the entire period of the term of his probation;

(b) Direct the probation not to attend social gatherings or night spots within or outside of his usual place of residence or village;

(c) Direct the probationer to make good the loss or damage to the property for which he was convicted for or pay full restitution or compensation for loss suffered by any person through or by means of any such offence for which he was found guilty and conviction ordered accordingly;

(d) Direct the probationer to abstain from the use of intoxicating liquor or drugs;

(e) Direct the probationer not to associate with any specified person or with persons of any specified group or class;

(f) Direct the probationer to undergo any specified course of education or training, including regular attendance to any specified church organisation;

(g) For ensuring his good conduct or for preventing the commission of further offences.

46 Breach of conditions of probation

(1) Every probationer who fails to abide by the terms and conditions of his probation is liable to be prosecuted under section 101 of the Niue Act 1966.

(2) Where any probationer is convicted under the provision specified in paragraph (1), the Court may, in addition to or instead of sentencing the offender, do all or any of the following things, namely –

(a) Extend the term of probation by any specified period expiring not more than 3 years;

(b) Vary any condition of the probation imposed earlier by the Court;

(c) Impose additional conditions.

(3) Where any probationer or any constable believes on reasonable grounds that any probationer has committed a breach of any condition of his probation, he may arrest the probationer without warrant, to be dealt with in accordance with section 101 of the Niue Act 1966.

47 Probation Officer’s report

(1) Where a written report is made to the Court by a Probation Officer, a copy of the report shall be given to the counselor or public defender appearing for the offender, or if the offender is not represented by counsel or public defender, to the offender.

(2) The offender of his counsel or public defender, may tender evidence on any matter referred to in any report whether in written form or otherwise, by the Probation Officer.

(3) The prosecution, in the like manner, is also entitled to receive a copy of every report submitted by a Probation Officer to the Court.

(4) Every report submitted by the Probation Officer shall generally cover the following –

(a) Full Christian and family names of the offender including alias (if any);

(b) Age and date of birth and marital status (married/single);

(c) Brief details of the offence(s) committed by the offender together with the relevant sections of the Act to which the charge(s) are made against him;

(d) Maximum penalty stipulated by law;

(e) Details of previous offences and penalties imposed;

(f) Father/mother’s names and their current address;

(g) Names of children (if any) and their birth dates;

(h) Detailed education background of the offender;

(i) Employment (if any);

(j) Religion;

(k) Financial status;

(l) Health; and

(m) General observation and comments.

48 Procedure for sentence on original sentence

(1) Any probationer, including a probationer who, in addition to being released on probation, was also sentenced to pay a fine is convicted of an offence committed during the period of probation, the Court may, sentence him for the offence for which he was originally charged and released on probation.

(2) Every application filed by the Probation Officer in terms of regulation 45(3) shall be served on the probationer followed by a summons unless the probationer is already in custody.

(3) Any application made under this section shall be disposed of in the following manner:

(a) In the case of the offender released on probation by the Justice of the Peace the application shall be dealt with by the Commissioner of the High Court;

(b) In the case of the offender released on probation by the Commissioner of the High Court, the application shall be dealt with by the Judge;

(c) In the case of the offender released on probation by the Judge of the High Court the application shall be dealt by the Chief Justice; or

(d) In case of the offender released on probation by the Chief Justice, the application shall be dealt with by the Court of Appeal.

(4) The Commissioner or Judge or Chief Justice by whom an application is heard under this section, may if he thinks fit, deal with the offender for the offence for which he was released on probation in any way, other than releasing him again on probation.

49 Effect of subsequent sentence on probation

(1) Where any person released on probation is sentenced in respect of any offence for a term of one year or more, the probation shall be deemed terminated.

(2) Where any person released on probation is sentenced in respect of any offence to imprisonment less than one year the term of his probation shall continue to run while he is detained under sentence, and on his release from detention, he shall continue to be on probation for the then unexpired residue of that term, unless he is sooner discharged from probation by an order of the Court.

50 Discharge on expiry of probation

Every probationer shall at the expiry of the term of his or her probation be deemed to be discharged in respect of the offence for which he or she was released on probation as if he or she had been sentenced and had served the term of his or her sentence.

51 Appointment of Probation Officers

(1) The Niue Public Service Commission shall be responsible for the appointment of any person, or the holder for the time being of any office or appointment in the Niue Public Service, as a Probation Officer.

(2) Any appointment made under the Public Service Regulations 2004 may be held in conjunction with any office or appointment that is not deemed inconsistent with other employment being held.

(3) Any person appointed subject to this section shall be responsible to the Controller.

52 Duties and responsibilities

(1) It is the duty of the Probation Officer, when so required by any Court or the Controller, to report on the character and personal history of any person convicted of any offence punishable by imprisonment, with a view of assisting the Court in determining the most suitable method of dealing with his case, and may in such report advise the Court whether the offender would be likely to respond satisfactory to probation and whether any special probation condition should be imposed.

(2) Generally it shall be the duty of every Probation Officer to –

(a) Supervise all persons placed under his supervision, with a view to assisting their social rehabilitation and preventing the commission of further offences;

(b) Perform such other duties as may be specified elsewhere under these instructions or directed by the Court or the Controller; and

(c) Appear in any proceedings in any Court and make presentation when called upon to do so.

(3) In the exercise of his duties, every probation officer shall have the same general power, protection and privilege of a constable.

53 Discretionary powers

(1) For proper control and supervision purposes the Probation Officer in the exercise of his duties pursuant to regulation 51 or any other provisions shall, in consultation with the Controller, cause to centralize the probation in small groups depending on the nature of the project or an approved work programme.

(2) Every application by recognized sports, church or social organizations, local government bodies or government departments for service under probation system shall be determined according to its merits and by reference to regulation 44(f) provided requests are made in writing to the Controller.

PART 6
PRISON DISCIPLINE

54 Offences against discipline

(1) The following are offences against prison discipline –

(a) Disobedience of lawful orders given by any officer of the prison;

(b) Disobedience of any rules of the prison;

(c) Using obscene or improper language;

(d) Indecent behaviour;

(e) Creating a disturbance;

(f) Using insulting or threatening language to any officer or other prisoner;

(g) Wilfully injuring or destroying any article belonging to the prison;

(h) Receiving or using articles prohibited by rules;

(i) Refusal to work, or negligence or idleness at work;

(j) Disrespect towards any prison officer, or towards the Medical Officer, chaplain or visiting priests or any visitor, or person employed in connection with the prison;

(k) Committing a nuisance;

(l) Refusing or neglecting to use, take, or apply the medicines or remedies ordered by the Medical Officer;

(m) Making repeated groundless complaints; and

(n) Wilfully giving or causing unnecessary trouble.

(2) Punishment in respect of a prison offence may be imposed by the Superintendent of the prison.

(3) The Superintendent may handcuff or place and keep in separate confinement any prisoner whose conduct is so violent as to render that necessary.

(4) The Superintendent shall report each case of restraint of a prisoner and the imposition of a punishment of a disciplinary offence in writing to the Controller as soon as possible after that event.

(5) A prisoner who has been ordered to be punished for a disciplinary offence may appeal against that punishment to the controller.

(6) Where an appeal is made to a Controller under paragraph (5), the Controller shall consider the report provided by the Superintendent and any evidence the prisoner presents.

(7) The decision of the Controller on the appeal shall be final.

55 Offences by inmates relating to drugs and alcohol

(1) Every inmate commits an offence against discipline who without the authority of a medical officer, uses any drug or consumes alcohol (whether inside or outside a prison).

(2) Every person commits an offence against discipline who, without the authority of a medical officer, uses any drug or consumes alcohol during any period while the person is on temporary release from custody under regulation 10.

56 Attempting or aiding commission of offence against discipline

Every inmate or person on temporary release from custody under regulation 10 who attempts to commit any offence against discipline, or who aids, counsels or procures the commission of any such offence, is liable to be dealt with and punished in the same manner as if he had committed the offence.

57 Minor or unintentional breaches of discipline

(1) As far as practicable in the circumstances and if appropriate, an officer must deal with a minor or an unintentional breach of discipline by a prisoner in the following manner –

(a) By stopping the breach of discipline and explaining the nature of the breach to the prisoner committing the breach;

(b) By instructing the prisoner to correct his or her behaviour;

(c) By allowing the prisoner to make amends to any person aggrieved by the breach.

(2) If a minor or an unintentional breach of discipline is not dealt with under paragraph (1), does not prevent an inmate from being charged with a disciplinary offence.

PART 7
COMPLAINTS PROCEDURE

58 Purpose and objectives of complaints procedure

The inmates complaints procedure has the following objectives –

(a) To enable complaints by a person who are or were under control of supervision to be dealt with internally on a formal basis;

(b) To ensure that all persons under control or supervision are aware of the complaints system and are able to make a complaint if and whey they choose to do so, without fear of adverse consequences;

(c) To ensure that complaints are all reasonable steps are to taken to investigate complaints in a fair, timely, and effective manner;

(d) To ensure that, if possible in the circumstances, complaints are dealt with reasonably promptly and at the lowest and most informal level;

(e) To ensure that complainants are advised of the progress in investigating their complaints.

59 Prison, parole office and probation office must have internal complaints procedure

(1) In the prison, parole office and probation office, there must be an internal complaints procedure that enables complaints to be dealt with internally on a formal basis.

(2) The Controller or controlling officer of the parole and probation office must ensure that the internal complaints procedure for that place complies with the objectives set out in regulation 27.

(3) Notices must be prominently displayed in each cell in the prison, in each parole and probation office, that explain –

(a) The complaints investigations process generally; and

(b) How persons under control or supervision may request interviews or making formal complaints; and

(c) The right of persons under control or supervision to request, at any time, assistance from the Superintendent or Controller.

60 Assistance to make complaints

(1) The Superintendent must ensure that a person under control or supervision is given the opportunity to –

(a) Obtain assistance to enable the person to make a complaint; or

(b) Verify any information recorded on a form or other document outlining a complaint.

(2) The Superintendent must ensure that any person who is under control or supervision who has difficulties with verbal or written communication is provided with assistance –

(a) To complete any required documents; and

(b) To prepare or present his case.

61 Persons under or previously under control or supervision may seek assistance from Controller

A person who is or was under control or supervision may, at any time, seek assistance from the Controller for the purpose of making a complaint.

62 Investigation of complaints by Controller

(1) The Controller may investigate a complaint in any manner that he considers appropriate (which may include, without limitation, referring the complaint to another person for consideration).

(2) While investigating a complaint, the Controller must be given access to –

(a) Any person within the prison, parole or probation office, or to any person at any other place (including a dwelling house) at which the complainant is or was detained or required to attend, work, or live; and

(b) Any other person who is or was responsible for –

(i) the supervision of a complainant while the complainant carries or carried out his sentence or order; or

(ii) the performance of any escort or courtroom custodial duties in relation to the complaint; and

(c) Any records held by an employee of the department or any other person referred to in subparagraph (a) or (b) that are relevant to the complaint.

(3) If the Controller investigates a complaint, he must conduct the investigation reasonably promptly, and must inform the complainant and the other person concerned, promptly after the conclusion of the investigation, in a matter that he considers appropriate of –

(a) The result of the investigation; and

(b) Any further action that the inspector proposes to take in respect of the complaint.

(4) The Controller must keep records of every complaint that he receives and deals with.

63 Powers of entry and access by Controller

(1) For the purpose of performing any functions as the Controller, he may at any time, enter the prison, parole or probation office, or any other place (including a dwelling house) at which a person under control of supervision is or was detained or required to attend, work, live, and gain access to –

(a) All parts of that place;

(b) All persons under control or supervision in that place;

(c) All persons with responsibility for the control or supervision of those persons in that place, and visitors to that place;

(d) If the place is the prison, parole or probation office, all records stored in that place that relate to –

(i) the place;

(ii) a person who is or was under control or supervision; or

(iii) an officer employed at that place.

(2) For the purpose of performing any functions as the Controller, he may at any time, enter any vehicle that is or was being used for the transportation of any person under control or supervision during any period of that person’s detention.

(3) Despite regulation 62 (2) (a) and paragraphs (1) and (2) of this regulation, the Controller –

(a) Must not enter a dwelling house without the consent of any person who appears to be the occupier of the dwelling house;

(b) Must not enter any part of a place at which a person under control or supervision is required to live, work, or attend (other than the actual part of the place in or at which the person is required to live, work, or attend) without the consent of the person who appears to be the occupier of that place;

(c) Must not enter a vehicle that is not owned by the department, unless the owner or driver of the vehicle consents to that entry.

64 Interviews with Controller

(1) If the Controller visits the prison, parole or probation office, or any other place for the purpose of interviewing persons under control or supervision, all the persons under control or supervision at that place are entitled to an interview with the Controller.

(2) If the Controller visits the prison, parole or probation office, or other place for a purpose other than to interview persons under control or supervision, a person under control or supervision at that place may ask for an interview with the inspector and that inspector may agree to the interview.

(3) No person under control or supervision may be required to disclose to any person with responsibility for the control or supervision of that person the reason why the person asked for an interview with the Controller.

65. Recommendations and directions of Controller

(1) The Controller may, either during or following the completion of an investigation –

(a) Make any recommendations that he considers appropriate about practices or procedures to any person who he considers is the appropriate person to receive the recommendation;

(b) Issue any direction to a person with responsibilities for the control or supervision of any person that he considers necessary to avoid or reduce any immediate danger to the complainant or any other person.

(2) A direction given under paragraph (1) (b) may be revoked at any time by the Superintendent.

(3) If the Superintendent revokes a direction given under paragraph (1) (b) he must promptly inform the Minister of that revocation and the reasons for it.