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:
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:
See Sentencing Act 2017 (SA) s 71(3).
There are a number of instances where a home detention order should not be made, including:
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:
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:
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:
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].