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Home Detention Orders (NSW)

It is a fundamental principle of sentencing that an offender should only be sentenced to imprisonment as a last resort. Under Section 5 of the Crimes (Sentencing Procedure) Act 1999, a court can impose imprisonment only when no other penalty is appropriate for the offence.  If a person is sentenced to imprisonment, but their circumstances make it appropriate to serve some or all of that sentence in their home, a home detention order may be imposed as an alternative to ‘full time’ imprisonment in a jail. A home detention order may only be made where the head sentence is 18 months or less.

What is the process for ordering home detention?

If the court is satisfied that no sentence other than a term of imprisonment is appropriate for an offence and that the term of imprisonment should be set at 18 months or less, it may then consider ordering that the sentence be served by way of home detention.

The court must then order a report be prepared assessing the offender’s suitability for home detention. The assessment will consider all of the offender’s circumstances including:

  • The offender’s criminal record and the likelihood of them reoffending;
  • Whether there would be any difficulty monitoring them given their employment, study or other activities;
  • Whether any other members of the household would understand the requirements of the order and accommodate them; and
  • Whether the order would put anyone at risk of harm.

If the report is favourable, the court will then exercise its ultimate discretion as to whether home detention should be ordered. Further submissions and evidence may be put forward by the defence and prosecution prior to the court making its decision.

Who is ineligible for a home detention order?

There are certain offences for which home detention is not available, including murder, manslaughter, sexual assaults and domestic violence offences where there is a likelihood the offender would be residing with or continuing a relationship with the the victim if a home detention order were made. It is also not available for offenders with a criminal history including murder, manslaughter, sexual assaults or various other proscribed offences. It must not be made if the court considers it is likely that the offender will commit a sexual offence or a violent offence during the home detention order.

What does home detention involve?

Home detention means the offender is confined to an approved residence for the duration of the sentence.  The offender is closely supervised and subject to electronic monitoring. They are generally not allowed to leave the house except for approved activities such as employment and education, grocery shopping and medical appointments.

He or she must also abide by strict conditions for the duration of the order. These conditions may include arrangements relating to the offender’s employment while the order is in force or the performance of community service work while the order is in force. There are also conditions that the offender not consume alcohol or drugs and offenders may be subjected to breath testing .

The level of monitoring an offender receives while on home detention depends on how ‘high risk’ they are. Offenders on home detention are monitored by Corrective Services  using GPS technology which functions everywhere there is a mobile phone signal. The offender is fitted with an anklet, which remains on for the duration of the order.

Breaches of orders

If a person on a home detention order breaches the conditions of the order, Corrective Services can prepare a breach report to submit to the Parole Authority. The Parole Authority may revoke the Home Detention Order if:

  • The offender has failed to comply with the condition of the order;
  • The offender fails to appear before the Parole Authority when required to do so;
  • The offender has applied for the order to be revoked;
  • A person residing with the offender has withdrawn their consent to the order continuing.

Alternately, the Parole Authority may take no action or issue a warning.

If you need advice about any legal matter please contact Go To Court Lawyers. 

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