As of 1 September 2016 courts in South Australia can, in some circumstances, impose home detention orders [s 33BB Criminal Law (Sentencing) Act 1988 (SA)].
This is available for sentences ordered after 1 September 2016, even if the offence happened before that date. The only exception to this is where a sentence which has been already imposed, has been quashed and the defendant re-sentenced [Statutes Amendment (Home Detention) Act 2016 (SA) s 7].
Home detention orders
The court can suspend a sentence and order that the defendant serve the sentence on home detention if:
- it has imposed a sentence of imprisonment; and
- considers that the sentence should not be suspended under a bond;
- and considers that the defendant is a suitable person for home detention.
[Criminal Law (Sentencing) Act 1988 (SA) s 33BB(1)].
The chief consideration of the court when determining whether to make a home detention order is the safety of the community [s 33BB(3)]. The court also has to take into consideration the impact that the home detention order is likely to 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.[s 33BB(4)]
A home detention order must not be made unless the court is satisfied that the home listed in the order is suitable and available for the detention and that the defendant will be looked after there [s 33BB(2)(a)(i) Criminal Law (Sentencing) Act 1988 (SA)].
A home detention order also can not be made if the defendant is being sentenced to imprisonment that is to be served cumulatively on another term of imprisonment, or alongside with another term of imprisonment then being served, or about to be served, by the defendant [s 33BB(2)(a)(ii)].
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 33BB(2)(b)].
Home detention orders have many conditions 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:(i) paid employment;(ii) urgent medical or dental treatment;(iii) attending 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(iv) any other purpose approved or directed by the home detention officer;
- a condition of good behaviour during the period of the order;
- a condition to obey the lawful directions of the person’s home detention officer;
- a condition prohibiting the person from possessing a firearm or ammunition or any part of a firearm;
- a condition to submit to tests (including testing without notice) for gunshot residue;
- other conditions as the court may specify (this could include monitoring by an electronic device).
[s 33BC(1) Criminal Law (Sentencing) Act 1988 (SA)].
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.
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