Home Detention Orders (NSW)

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Home detention orders were abolished in New South Wales in 2018. However, a home detention condition may be imposed when a person is sentenced to an intensive corrections order. An intensive corrections order is a community-based sentence where the offender lives at home under the supervision of Corrections. This page explains what home detention orders were, why they were abolished and how intensive corrections orders work.

What were home detention orders?

Home detention orders were a way for an offender who was sentenced to imprisonment to remain living in their home while they served their sentence. They were imposed when a person's circumstances made it appropriate for them to serve some or all of their custodial sentence in their home.

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

Purpose and Benefits of Home Detention Orders

These orders served multiple purposes within the NSW criminal justice system. They allowed offenders to maintain employment, continue education, and preserve family relationships while serving their sentence. The system was particularly beneficial for first-time offenders, elderly prisoners, or those with medical conditions that made prison custody problematic. Home detention orders also reduced the burden on the prison system and were more cost-effective than full-time incarceration.

Eligibility Criteria for Home Detention

Not all offenders were eligible for home detention orders. Courts considered factors such as the seriousness of the offence, the offender's criminal history, their likelihood of reoffending, and whether they had a suitable residence with appropriate support systems. The offender needed to demonstrate they could comply with strict conditions and that their release would not pose a risk to community safety.

Abolition of home detention orders

In 2018, the Crimes (Sentencing Procedures) Act 1999 was amended and several community-based sentencing options were abolished or altered. Suspended sentences, good behaviour bonds and home detention orders were all abolished at this time. Intensive corrections orders, community corrections orders and community release orders were introduced to replace them.

The government stated that these changes were necessary because of the high number of offenders being placed on community-based orders without supervision. This was thought to be an ineffective way of addressing offending behaviour. The new sentencing regimes were designed to allow community-based orders to be tailored to address a person's situation and the causes of their offending.

Legislative Reform Process

The abolition came as part of broader criminal law reforms aimed at creating a more cohesive and effective sentencing framework. The NSW Government conducted extensive consultation with legal professionals, community groups, and corrections officials before implementing these changes. The reforms were designed to ensure that community-based sentences provided better supervision and support for offenders while maintaining public safety.

Intensive corrections orders

Under section 7 of the Crimes (Sentencing Procedures) Act 1999, a court that has sentenced a person to imprisonment may make an intensive corrections order directing that the sentence be served in the community.

An intensive corrections order can only be made against an adult who has been sentenced to two years imprisonment or less for a single offence, or three years imprisonment or less for two or more offences.

How Intensive Corrections Orders Function

Intensive corrections orders represent a significant evolution from the previous home detention system. They provide courts with greater flexibility in tailoring sentences to individual circumstances while ensuring adequate supervision and support. These orders allow offenders to serve their sentence in the community under strict conditions, maintaining the punitive aspect of imprisonment while providing opportunities for rehabilitation and reintegration.

Offences where intensive corrections order is not available

Section 67 of the Crimes (Sentencing Procedures) Act 1999 sets out the offences for which an intensive corrections order cannot be made. These include murder, manslaughter, offences involving the discharge of a firearm and prescribed sexual offences.

Serious Violent Offences Exclusions

The legislation specifically excludes offences that involve serious violence or pose significant risk to community safety. This includes domestic violence offences where the court has made a finding that the offence involved the infliction of actual bodily harm, as well as certain terrorism-related offences and drug supply offences above specified quantities.

Conditions of an intensive corrections order

The standard conditions of an intensive corrections order are:

• Not to commit an offence
• To submit to supervision by Community Corrections

Other conditions that can be imposed as part of an intensive corrections order are:

• A home detention condition
• An electronic monitoring condition
• A curfew
• A community service work condition
• A rehabilitation and treatment condition
• A requirement to abstain from alcohol or drugs
• A condition prohibiting association with specified persons
• A condition prohibiting attending particular places

Tailored Conditions for Individual Cases

Courts have discretion to impose additional conditions based on the specific circumstances of each case. These might include requirements to attend counselling, maintain employment or education, reside at a specific address, or participate in programs addressing the underlying causes of offending behaviour. The conditions are designed to be rehabilitative rather than purely punitive.

Assessment for home detention condition

If a court is considering imposing a home detention condition or a community service condition, it must have an assessment report completed by Corrections. The condition must only be made if the offender is found suitable for such a condition.

Assessment Process and Criteria

The assessment process involves a comprehensive evaluation of the offender's circumstances, including their accommodation, employment status, family support, and risk factors. Corrections officers conduct interviews, home visits, and background checks to determine suitability. The assessment also considers the impact on other household members and the availability of appropriate supervision resources.

Breach and Consequences of Intensive Corrections Orders

Breaching an intensive corrections order is a serious matter that can result in the offender being brought before the court. Under section 18F of the Crimes (Sentencing Procedures) Act 1999, if an offender fails to comply with the conditions of their order, Community Corrections can initiate breach proceedings.

Types of Breaches

Breaches can include failing to report to Community Corrections as required, committing new offences, breaching curfew conditions, or failing to comply with treatment or community service requirements. The court has discretion in how to deal with breaches, which may result in variation of conditions, extension of the order, or revocation and imprisonment.

Legal Representation and Court Process

Given the complexity of sentencing options and the strict eligibility criteria for intensive corrections orders, legal representation is crucial. Experienced criminal lawyers can prepare comprehensive submissions addressing the offender's suitability for community-based sentences and present mitigating factors effectively.

Pre-Sentence Reports and Documentation

Courts often rely on pre-sentence reports, character references, and evidence of rehabilitation efforts when considering intensive corrections orders. Legal representatives play a vital role in gathering and presenting this evidence to maximize the chances of receiving a community-based sentence rather than full-time custody.

Frequently Asked Questions