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Home detention orders

To top [4-000] Preliminary

Part 2 Div 2 Crimes (Sentencing Procedure) Act 1999, entitled “Alternatives to full-time detention”, empowers the court to make a home detention order: s 6. Home detention is an alternative to full-time imprisonment whereby an offender is confined to an approved residence for specified periods of time for the duration of the sentence of imprisonment. It enables the sentence to be served in the offender’s home. Offenders who are subject to home detention orders are strictly supervised and are subject to electronic monitoring. Home detention is subject to the terms of s 5 Crimes (Sentencing Procedure) Act — the court must first find that no penalty other than imprisonment is an appropriate penalty for the offence in question.

“Home detention” means detention in accordance with Pt 4 Crimes (Administration of Sentences) Act 1999, while “home detention order” means an order referred to in s 6: s 3 Crimes (Sentencing Procedure) Act.

  • Part 6 Crimes (Sentencing Procedure) Act sets out the sentencing procedures for home detention orders and applies when a court is considering, or has made, a home detention order: s 74.

  • Part 4 Crimes (Administration of Sentences) Act deals with imprisonment by way of home detention.

  • Section 5(5) Crimes (Sentencing Procedure) Act provides that, inter alia, Pt 4 of the Act (Sentencing procedures for imprisonment) applies to all sentences of imprisonment, including any sentence that is the subject of a home detention order. As home detention is a form of imprisonment, s 44 Crimes (Sentencing Procedure) Act and the court is required to set a non-parole period when ordering home detention or give reasons if it declines to do so: s 45; R v Parsons [2002] NSWCCA 296 at [77].

In a 2005 study it was reported that 82.7% (330 of 399) of offenders subject to a home detention order successfully completed the sentence without breach: I Potas, S Eyland and J Munro “Successful Completion Rates for Supervised Sentencing Options”, Sentencing Trends & Issues, No 35, Judicial Commission of NSW, 2005, p 5.

To top [4-010] Power to make home detention order

Section 6 Crimes (Sentencing Procedure) Act provides that:

“(1) 

A court that has sentenced an offender to imprisonment for not more than 18 months may make a home detention order directing that the sentence be served by way of home detention.

(2) 

This section is subject to the provisions of Part 6.”

The Local Court is not empowered to impose a home detention order if the offender is absent: s 25(1)(c) Crimes (Sentencing Procedure) Act.

To top [4-020] Length of order

Home detention orders are limited to a maximum period of 18 months. This upper limit refers to the head or total sentence.

Further, an offender may not be subject to two or more home detention orders, to be served concurrently or cumulatively, where the date at which the new sentence will end is more than 18 months after the date on which it was imposed: s 79 Crimes (Sentencing Procedure) Act.

Unless otherwise indicated, a home detention order expires:

  • at the end of the term of the sentence (that is, the head sentence), or

  • when the offender is released on parole,

whichever occurs first: s 105 Crimes (Administration of Sentences) Act.

To top [4-030] Steps involved before ordering home detention

Before an order for home detention is made, the court must be satisfied that, having considered all possible alternatives, no penalty other than imprisonment is appropriate: s 5 Crimes (Sentencing Procedure) Act. The court is then to set the term without regard to the manner in which it is to be served: R v Douar (2005) 159 A Crim R 154 at [70]; R v Zamagias [2002] NSWCCA 17 at [25]. See discussion in Penalties of imprisonment at [3-300].

If a sentencer decides that a term of imprisonment of 18 months or less should be passed, home detention may be considered, having regard to the objective seriousness of the offence: R v LRS [2001] NSWCCA 338 at [65]; R v Zamagias [2002] NSWCCA 17 at [29]. The court should not tailor a sentence so that it might be served by home detention: R v Begbie (2001) 124 A Crim R 300 per Mason P at [34].

In R v Lo [2004] NSWCCA 382, Giles JA, Buddin J and Smart AJ agreeing, observed at [10]ff:

“It was said in R v Jurisic (1988) 45 NSWLR 209 at 215, speaking of the prior regime for home detention under the Home Detention Act 1996:

‘The Act requires a trial judge to determine the appropriate sentence of imprisonment without regard to the possibility that a home detention order may be made. The trial judge will subsequently have to exercise the judicial discretion to refer under s 9 of the Act and the ultimate discretion to make the order for detention under s 11. The order under s 11(1) should only be made if the sentencing judge is satisfied that the term of imprisonment so served is the appropriate sentence, in the sense that it reflects the criminality of the conduct in the circumstance of the case.’

These remarks I consider apply also to the current regime. In particular, it should be noted that there is a two-stage process. First, there is the determination of the appropriate sentence of imprisonment without regard to the possibility that a home detention order may be made. Secondly, there is the exercise of the judicial discretion in deciding whether or not a home detention order should be made.”

To top [4-040] Substantially less onerous than prison

The court held in R v Jurisic (1998) 45 NSWLR 209 at 215 that home detention is a substantially less onerous sentence than imprisonment within the confines of a prison. Home detention should not be equated with full-time incarceration: R v Jurisic per Sully J (contra Grove J); R v Smith (1997) 95 A Crim R 373 per Studdert J ; R v Pine (unrep, 4/3/98, NSWCCA) per Dunford J; and R v Byrne (1998) 104 A Crim R 456 per Dunford J. It is quite wrong to extend a sentence of imprisonment that would otherwise be appropriate in order to take into account that it is to be served by way of home detention: R v Jurisic (1998) 45 NSWLR 209 at 246–249.

In R v Jurisic (1998) 45 NSWLR 209 at 249–250, Sully J (with whom the other members of the court agreed) set out guidelines for the exercise of this particular judicial discretion:

1. 

There is nothing dutiful, and there is certainly nothing humane, in holding out to any offender what amounts to a false promise.

2. 

Before exercising the relevant statutory discretion in favour of making the reference for an assessment for home detention, the judge should take carefully into account the following considerations:

(a) 

in the real world, it will be assumed, whatever the judge might say to the contrary, that a favourable assessment will entail the making, in fact, of a home detention order

(b) 

the making of such an order will entail a significant watering down of the sentence of imprisonment; and, therefore, a significant diminution in the effectiveness of the sentence in terms of proper retribution; of proper personal deterrence; and of proper general deterrence,

(c) 

the consequence of making a home detention order might result in the converting of a sentence that is effectively unappellable (because it is within the range of a proper sentencing discretion), into a sentence which is properly appellable (because it has been turned, effectively, into a sentence that is no longer within such a range).

To top [4-050] Restrictions on power to make home detention orders

Suitability of offender for home detention

Section 78(1) Crimes (Sentencing Procedure) Act provides that a home detention order cannot be made unless the court is satisfied that:

  • the offender is a suitable person to serve the sentence by way of home detention

  • it is appropriate in all of the circumstances that the sentence be served by way of home detention

  • the persons with whom it is likely the offender would reside, or continue or resume a relationship, during the period of the offender’s home detention have consented in writing, in the form prescribed by the regulations, to the making of the order (see Crimes (Sentencing Procedure) Regulation 2010, cl 19(1) and Form 11), and

  • the offender has signed an undertaking, in the form prescribed by the regulations, to comply with the offender’s obligations under the home detention order: (see cl 20 and Form 12).

A court may make a home detention order only if the assessment report states that, in the opinion of the person making the assessment, the offender is a suitable person to serve a term of imprisonment by way of home detention: s 78(4) Crimes (Sentencing Procedure) Act.

In deciding whether or not to make a home detention order, the court is to have regard to:

  • the contents of an assessment report on the offender, and

  • such evidence from a probation and parole officer as the court considers necessary for the purpose of deciding whether to make such an order: s 78(2) Crimes (Sentencing Procedure) Act.

Despite the contents of the assessment report, a court may decline to make an order for home detention for reasons appearing to it to be sufficient: s 78(3) Crimes (Sentencing Procedure) Act.

Home detention not available for certain offences

Section 76 provides that home detention is not available for certain offences. It provides:

“A home detention order may not be made in respect of a sentence of imprisonment for any of the following offences or with respect to an aggregate sentence of imprisonment with respect to 2 or more offences, any one of which is one of the following offences:

(a) 

murder, attempted murder or manslaughter,

(b) 

sexual assault of adults or children or sexual offences involving children,

(c) 

armed robbery,

(d) 

any offence involving the use of a firearm, or an imitation firearm, within the meaning of the Firearms Act 1996,

(e) 

assault occasioning actual bodily harm (or any more serious assault, such as malicious wounding or assault with intent to do grievous bodily harm),

(f) 

an offence under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 or section 545AB [now repealed] or 562AB [now repealed] of the Crimes Act 1900 of stalking or intimidating a person with the intention of causing the person to fear personal injury,

(g) 

a domestic violence offence against any person with whom it is likely the offender would reside, or continue or resume a relationship, if a home detention order were made,

(h) 

an offence under section 23(2), 24(2), 25(2), 26, 27 or 28 of the Drug Misuse and Trafficking Act 1985 involving a commercial quantity of a prohibited plant or prohibited drug within the meaning of that Act,

(i) 

any offence prescribed by the regulations for the purposes of this paragraph.”

Where home detention is not available for a particular offence it is an error to simply impose a community service order – a sentence almost towards the bottom of the range: R v Atkins (unrep, 3/11/98, NSWCCA). In R v Tsokos (unrep, 19/6/95, NSWCCA), Hulme J (Gleeson CJ and Powell JA agreeing) said, with reference to R v  Blair (unrep, 20/11/87, NSWCCA), “…a court, unable to impose a sentence it regards as theoretically the most appropriate, is [not] obliged to impose a sentence that is more lenient. The correct approach is to choose from the available options the sentence which is most appropriate”.

Home detention not available for offenders with certain history

Offenders with a certain history are excluded from being considered eligible for home detention pursuant to s 77. The section provides:

“(1) 

A home detention order may not be made for an offender:

(a) 

who has at any time been convicted of any of the following offences:

(i) 

murder, attempted murder or manslaughter,

(ii) 

sexual assault of adults or children or sexual offences involving children, or

(b) 

who has at any time been convicted of an offence under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 or section 545AB [now repealed] or 562AB [now repealed] of the Crimes Act 1900 of stalking or intimidating a person with the intention of causing the person to fear personal injury, or

(c) 

who has at any time within the last 5 years been convicted of a domestic violence offence against any person with whom it is likely the offender would reside, or continue or resume a relationship, if a home detention order were made, or

(d) 

who has at any time been convicted of any offence prescribed by the regulations for the purposes of this paragraph, or

(e) 

who is (or has at any time within the last 5 years been) subject to an apprehended violence order (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007), or an apprehended violence order made under Part 15A of the Crimes Act 1900 before its repeal, being an order made for the protection of a person with whom it is likely the offender would reside, or continue or resume a relationship, if a home detention order were made.

(2) 

Offences prescribed by regulations made for the purposes of subsection (1) (d) may include offences under a law of the Commonwealth or of another State or a Territory.”

A home detention order must not be made if the court considers it likely that the offender will commit any sexual offence or any offence involving violence while the order is in force. This is despite the fact that the offender may have no history of committing offences of that nature: s 78(6) Crimes (Sentencing Procedure) Act.

To top [4-060] Conditions

Pursuant to s 103(1) Crimes (Administration of Sentences) Act, a home detention order is subject to the following conditions:

  • standard conditions imposed by the regulations under the Crimes (Administration of Sentences) Act

  • any additional conditions imposed by the sentencing court

  • any additional conditions imposed by the Parole Authority under s 103 Crimes (Administration of Sentences) Act.

The standard conditions attached to an order for home detention are set out in cl 200 Crimes (Administration of Sentences) Regulation 2008.

A home detention order must not be made unless the offender signs an undertaking (in the form prescribed by the regulations) to comply with their obligations under the order: s 78(1)(d) Crimes (Sentencing Procedure) Act.

To top [4-070] Restrictions on conditions imposed by sentencing court

A court may impose such conditions as it considers appropriate on any home detention order — except conditions requiring the offender to make any payment (whether in the nature of a fine, compensation or otherwise): s 82(1) Crimes (Sentencing Procedure) Act.

The conditions imposed by the court:

  • may relate to the offender’s employment while the order is in force: s 82(2)(a)

  • may require the offender to perform community service work [as defined in s 3 Crimes (Administration of Sentences) Act] while not otherwise employed: s 82(2)(b)

  • must not be inconsistent with the standard conditions imposed by the regulations under the Crimes (Administration of Sentences) Act: s 82(3).

A court must ensure that all reasonable steps are taken to explain to the offender the obligations imposed by the home detention order, and the consequences that may follow a failure to comply with the order: s 83 Crimes (Sentencing Procedure) Act.

To top [4-080] Assessment of suitability

Pt 6 Div 3 Crimes (Sentencing Procedure) Act (ss 80 and 81) deals with assessment reports for home detention. Such reports must take into account and specifically address the following matters:

  • any criminal record of the offender, and the likelihood that the offender will re-offend

  • any dependency of the offender on illegal drugs

  • the likelihood that the offender will commit a domestic violence offence

  • whether any circumstances of the offender’s residence, employment, study or other activities would inhibit effective monitoring of a home detention order

  • whether the persons with whom it is likely the offender would reside, or continue or resume a relationship, understand the requirements of the order and are prepared to live in conformity with them, so far as may be necessary

  • whether the making of the order would place at risk of harm any person who would be living with, or in the vicinity, of the offender

  • any matter prescribed by the regulations.

Once the court has referred the offender for assessment, the Probation and Parole Service is to investigate and report on an offender’s suitability for home detention: s 81(1) Crimes (Sentencing Procedure) Act.

To top [4-090] Referral for assessment

The referral of an offender for assessment as to suitability for home detention is discretionary. Thus, in accordance with s 80 Crimes (Sentencing Procedure) Act, a court may refer the offender for assessment to the Probation and Parole Service. Until the court decides whether or not to make a home detention order:

  • the referral stays the execution of the sentence and the operation of s 48 in relation to the sentence: s 80(2)(a)

  • the offender is remanded in custody or granted bail in accordance with the Bail Act 2013: s 80(2)(b).

In a matter involving the refusal of a judge to grant an adjournment for the purposes of assessing the suitability of an offender for home detention, it was held that such a refusal was a miscarriage of discretion: R v Tikas [1999] NSWCCA 83 at [18]. This was so even though the offender had twice been assessed as unsuitable (the circumstances of this case appear unusual).

To top [4-110] Consequences of revocation of good behaviour bond

Subject to Pts 5 and 6, a court may, on revoking a good behaviour bond referred to in s 12, make an order directing that the sentence of imprisonment to which the bond relates (disregarding any part that has already been served) is to be served by way of an intensive correction order or home detention: s 99(2) Crimes (Sentencing Procedure) Act. The original sentence imposed on the offender commences from the date of revocation of the bond: R v Graham (2004) 62 NSWLR 252 at [17]–[26].

To top [4-120] Appeals

The Court of Criminal Appeal has jurisdiction to hear an appeal from both the term of imprisonment imposed by the trial judge and the making of a home detention order, and to vary the term of imprisonment and/or the order: R v Jurisic (1998) 45 NSWLR 209 per Spigelman CJ at 215–216.

Section 176 Crimes (Administration of Sentences) Act provides that the Court of Criminal Appeal may hear applications from offenders in relation to the revocation of home detention orders by the Parole Authority. An offender is only able to make such an application where it is alleged that the revocation was made on the basis of false, misleading or irrelevant information: s 176(1)(b). If an application is successful, the Court of Criminal Appeal is only empowered to give “directions [to the Parole Authority] with respect to the information”; it does not have jurisdiction to consider the merits of the Parole Authority’s decision: s 176(2), (4) Crimes (Administration of Sentences) Act.

To top [4-130] Breach of conditions

The Parole Authority may conduct an inquiry into breaches of an offender’s obligations under a home detention order, whether or not the order has expired: ss 166(1) and 182 Crimes (Administration of Sentences) Act. The regulations may prescribe the manner in which an offender’s failure to comply with his or her obligations under the order is to be dealt with: s 106(b) Crimes (Administration of Sentences) Act.

An offender may provide submissions to the Parole Authority in relation to the matters under inquiry: s 166(2) Crimes (Administration of Sentences) Act.

To top [4-140] Revocation

The courts do not have the power to revoke home detention orders. Rather, this power resides with the Parole Authority under Pt 7 Div 2 Crimes (Administration of Sentences) Act.

Section 167 Crimes (Administration of Sentences) Act provides that a “revocation order” may be made by the Parole Authority if:

  • it is satisfied that the offender has failed to comply with his or her obligations under the order, or

  • the offender fails to appear before the Parole Authority when called on to do so under s 180 Crimes (Administration of Sentences) Act, or

  • the offender has applied for the order to be revoked, or

  • a person with whom the offender resides has, in writing, withdrawn his or her consent to the continued operation of the home detention order.

To top [4-150] Compulsory reconsideration of revocation orders

Revocation orders must be served on the offender (s 173(1)) and must indicate a date at which the Parole Authority is to meet to reconsider the revocation of the order: s 173(2)(b) Crimes (Administration of Sentences) Act.

Where the offender notifies the Secretary of the Parole Authority of his or her intention to make submissions, a meeting of the Parole Authority must be convened to conduct a hearing, pursuant to s 174 Crimes (Administration of Sentences) Act.

Decisions following the review of a revocation order are dealt with in s 175 Crimes (Administration of Sentences) Act.

To top [4-160] Federal offences

A home detention order may be made in respect of a person convicted of a federal offence: s 20AB of the Crimes Act 1914 (Cth) (Additional sentencing alternatives); Crimes Regulations 1990 (Cth), reg 6(g). In other words, a home detention order may be imposed upon a federal, as well as a State, offender: see R v Togias (2001) 127 A Crim R 23. As for breach proceedings, see s 20AC Crimes Act 1914.

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