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Home detention orders

Since 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).

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, unless
      • the offence is a prescribed serious sexual offence that occurred in prescribed circumstances; or
      • if the above does not apply, the court is satisfied that special reasons exist for the making of the home detention order [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, home detention or an intensive correction order for another designated offence [s 71(2)(b)(iv)].

For definitions of serious sexual offence,prescribed serious sexual offence, serious and organised crime offence and designated offence, see Sentencing Act 2017 (SA) s 71(5); or see Suspended Sentences.

The prescribed circumstances referred to in section 71(2)(b)(ii) relate to the age of the defendant and where the circumstances of the offending, including the victim’s age and the age difference between the defendant and the victim, are such that it is appropriate that a home detention order be made [see s 71(5) – definition of prescribed circumstances].

Special reasons for the purposes of section 71(2)(b)(ii) can only be where:

  • the defendant’s advanced age or permanent infirmity means they are no longer an appreciable risk to the safety of the community; and
  • the interest of the community as a whole would be better served by the defendant serving the sentence on home detention rather than in custody.

See Sentencing Act 2017 (SA) s 71(4).

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:

  • cumulatively on another term of imprisonment (other than a term of imprisonment to be served subject to a home detention order); or
  • concurrently with another 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)].

Conditions of home detention orders

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.

Breach of a home detention order

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.

A breach of a home detention order may result in revocation of the order. The defendant may also be required to serve the balance of the sentence in custody as opposed to on home detention [see s 73].

Home detention orders  :  Last Revised: Fri May 24th 2019
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.