From the 1 September 2016 courts in South Australia have been able to, in some circumstances, impose home detention orders [see Sentencing Act 2017 (SA) s 71].
The court can order that the defendant serve a sentence on home detention if:
- it has imposed a sentence of imprisonment; and
- it considers that the sentence should not be suspended under a bond; and
- it considers that the defendant is a suitable person for home detention.
See Sentencing Act 2017 (SA) s 71(1).
A home detention order cannot be made where a defendant is serving or liable to serve a sentence of indeterminate duration where a non-parole period has not been fixed [s 70(1)(b)(i)]. Similarly, a home detention order cannot be made where a defendant is being sentenced for specific offences including murder (or conspiracy to commit, or aiding, abetting and procuring the commission of murder), treason, or terrorism offences. [s 70(1)(b)(ii)]. A home detention order cannot be made when sentencing for an offence where a reduction, mitigation or substitution of penalty is not permitted [s 70(1)(b)(ii)]. This would include where a person is a serious firearms offender and is being sentenced for a serious firearms offence [see ss 51(1)(c), s 25, and 70(1)(b)(ii)(D)].
The paramount consideration of the court when determining whether to make a home detention order is to protect the safety of the community [s 69(2)]. The court also has to take into consideration the impact that the home detention order may have on:
- any victim of the offence; and
- any spouse or domestic partner of the defendant; and
- any person residing at the residence at which the prisoner would, if released, be required to reside;
- any relevant report/s ordered by the court; and
- any other matter the court thinks relevant.
See Sentencing Act 2017 (SA) s 71(3).
In addition to those mentioned above, there are a number of instances where a home detention order should not be made, including:
- if the making of such an order would, or may, affect public confidence in the administration of justice [s 71(2)(a)]; or
- if the defendant is being sentenced as an adult:
- to a period of imprisonment with a non-parole period of 2 years or more for a prescribed designated offence [s 71(2)(b)(i)]; or
- for a serious sexual offence [s 71(2)(b)(ii)]; or
- for a serious and organised crime offence or specified offence against police [s 71(2)(b)(iii)]; or
- for a designated offence and where, during the preceding five years, they have been sentenced to imprisonment or home detention for another designated offence [s 71(2)(b)(iv)].
A home detention order must not be made unless the court is satisfied that the premises listed in the order is suitable and available for the detention, and that the defendant will be properly maintained and cared for while detained at that place [s 71(2)(c)].
A home detention order must also not be made if the defendant would serve the home detention concurrently with a term of imprisonment already being served, or about to be served [s 71(2)(d)].
Resources have to be available for home detention to be ordered, and a home detention order should not be made if the court is not satisfied that adequate resources exist for the proper monitoring of the defendant while on home detention by a home detention officer [s 71(2)(e)].
Section 72 of the Sentencing Act 2017 (SA) sets out many conditions of home detention orders, including:
- a condition requiring the person to remain at the home throughout the period of the order and not to leave at any time except for:
- paid employment as approved by a home detention officer; or
- urgent medical or dental treatment; or
- attendance at an assessment for medical treatment, for the purpose of an intervention order, or for education, training or instruction or any other activity as required by the court or as approved or directed by the person's home detention officer; or
- any other purpose approved or directed by the home detention officer;
- a condition requiring the person to be of good behaviour;
- a condition to be under the supervision of, and to obey the lawful directions of a home detention officer;
- a condition prohibiting the person from possessing a firearm or ammunition or any part of a firearm;
- a condition relating to the use of drugs other than for therapeutic purposes;
- a condition to submit to tests (including testing without notice) for either gunshot residue or relating to drug use;
- a condition that the person be monitored by the use of an electronic device; or
- other conditions as the court may specify
See Sentencing Act 2017 (SA) s 72.
Failing to comply with, or breaking a condition of, a home detention order is an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
See Sentencing Act 2017 (SA) s 78.
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