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SENTENCING ACT 2017 - SECT 71

71—Home detention orders

        (1)         Subject to this section, if—

            (a)         a court has imposed a sentence of imprisonment on a defendant; and

            (b)         the court considers that the sentence should not be suspended under Part 4 Division 2; and

            (c)         the court considers that the defendant is a suitable person to serve the sentence on home detention,

the court may order that the defendant serve the sentence on home detention (a "home detention order").

        (2)         The following provisions apply to a home detention order:

            (a)         a home detention order must not be made if the court considers that the making of such an order would, or may, affect public confidence in the administration of justice;

            (b)         a home detention order must not be made if the defendant is being sentenced

                  (i)         as an adult to a period of imprisonment with a non-parole period of 2 years or more for a prescribed designated offence; or

                  (ii)         as an adult for a serious sexual offence unless—

                        (A)         the offence is a prescribed serious sexual offence that occurred in prescribed circumstances; or

                        (B)         if subsubparagraph (A) does not apply, the court is satisfied that special reasons exist for the making of a home detention order; or

                  (iii)         as an adult for a serious and organised crime offence or specified offence against police; or

                  (iv)         as an adult for a designated offence and, during the 5 year period immediately preceding the date on which the relevant offence was committed, a court has sentenced the defendant to imprisonment (other than where the sentence is suspended), home detention or an intensive correction order for a designated offence;

            (c)         a home detention order must not be made unless the court is satisfied that the residence the court proposes to specify in its order is suitable and available for the detention of the defendant and that the defendant will be properly maintained and cared for while detained in that place;

            (d)         a home detention order must not be made if the home detention is to be served 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 then being served, or about to be served, by the defendant;

            (e)         a home detention order should not be made unless the court is satisfied that adequate resources exist for the proper monitoring of the defendant while on home detention by a home detention officer.

        (3)         The court must take the following matters into consideration when determining whether to make a home detention order:

            (a)         the impact that the home detention order is likely to have on—

                  (i)         any victim of the offence for which the defendant is being sentenced; and

                  (ii)         any spouse or domestic partner of the defendant; and

                  (iii)         any person residing at the residence at which the prisoner would, if released, be required to reside;

            (b)         the pre-sentence report (if any) ordered by the court;

            (c)         any other matter the court thinks relevant.

        (4)         The following provisions apply for the purposes of subsection (2)(b)(ii)(B):

            (a)         the court cannot be satisfied that special reasons exist for the purposes of subsection (2)(b)(ii)(B) unless the court is satisfied that—

                  (i)         the defendant's advanced age or permanent infirmity means that the defendant no longer presents an appreciable risk to the safety of the community (whether as individuals or in general); and

                  (ii)         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;

            (b)         the court must not have regard to any other matter in determining whether it is satisfied that special reasons exist for the purposes of subsection (2)(b)(ii)(B).

        (5)         In this section—

"designated offence" means any of the following offences under the Criminal Law Consolidation Act 1935 :

            (a)         an offence under section 13 or 13A;

            (b)         an offence under section 19;

            (c)         an offence under section 19AA;

            (d)         an offence under section 19AC;

            (e)         an offence under section 19A;

            (f)         an offence under section 23 or 24;

            (g)         an offence under section 29A;

            (h)         an offence under section 39;

                  (i)         an offence under section 137;

            (j)         an offence under section 170;

            (k)         an offence under section 270B if the offence against the person to which that section applies is a relevant offence referred to in a preceding paragraph;

"foster parent", of a child, includes—

            (a)         an approved carer of the child; and

            (b)         a person in whose care the child is placed under section 77 of the Children and Young People (Safety) Act 2017 ;

"prescribed designated offence" means an offence under section 13 or  23 of the Criminal Law Consolidation Act 1935 ;

"prescribed serious sexual offence" means—

            (a)         any of the following offences under the Criminal Law Consolidation Act 1935 where the maximum penalty prescribed for the offence is, or includes, imprisonment for at least 5 years:

                  (i)         an offence under section 49 (unlawful sexual intercourse);

                  (ii)         an offence under section 56 (indecent assault);

                  (iii)         an offence under section 58 (gross indecency);

                  (iv)         an offence under section 63 (production or dissemination of child exploitation material);

                  (v)         an offence under section 63B (procuring child to commit an indecent act etc); or

            (b)         an offence against a corresponding previous enactment substantially similar to an offence referred to in paragraph (a); or

            (c)         an attempt to commit or an assault with intent to commit any of the offences referred to in either of the preceding paragraphs;

"serious and organised crime offence" means—

            (a)         any of the following offences under the Criminal Law Consolidation Act 1935 :

                  (i)         an offence under section 83E;

                  (ii)         an aggravated offence under section 172 or 251, where the aggravating circumstances of the offence are the circumstances referred to in section 5AA(1)(ga)(i) or (ii) of that Act;

                  (iii)         an offence under section 244 or 245;

                  (iv)         an attempt to commit any of the offences referred to in any of the preceding subparagraphs; or

            (b)         any of the following offences under the Controlled Substances Act 1984 :

                  (i)         an offence under section 32(1);

                  (ii)         an aggravated offence under section 32(2), 32(2a) or 32(3);

                  (iii)         an offence under section 33(1);

                  (iv)         an aggravated offence under section 33(2) or 33(3);

                  (v)         an aggravated offence under section 33A(1), 33A(2), 33A(3), 33A(4) or 33A(5);

            (va)         an offence under section 33F, 33G or 33H;

                  (vi)         an attempt to commit any of the offences referred to in any of the preceding subparagraphs;

"serious sexual offence" means any of the following offences where the maximum penalty prescribed for the offence is, or includes, imprisonment for at least 5 years:

            (a)         —

                  (i)         an offence under section 48, 48A, 49, 50, 51, 56, 58, 59, 60, 63, 63B, 66, 67, 68 or 72 of the Criminal Law Consolidation Act 1935 ;

                  (ii)         an offence against a corresponding previous enactment substantially similar to an offence referred to in subparagraph (i);

                  (iii)         an attempt to commit or an assault with intent to commit any of the offences referred to in either of the preceding subparagraphs;

            (b)         an offence against the law of another State or a Territory corresponding to an offence referred to in paragraph (a);

"specified offence against police" means—

            (a)         an aggravated offence under section 23(1) or  23(3) of the Criminal Law Consolidation Act 1935 where the aggravating circumstances of the offence are the circumstances referred to in section 5AA(1)(c) of that Act and the victim is a police officer; or

            (b)         an offence of attempted murder or attempted manslaughter under the Criminal Law Consolidation Act 1935 where the victim is a police officer and the offender committed the offence—

                  (i)         knowing the victim to be acting in the course of the victim's official duty; or

                  (ii)         in retribution for something the offender knows or believes to have been done by the victim in the course of the victim's official duty.

        (6)         For the purposes of this section, an offence occurred in "prescribed circumstances if—

            (a)         the defendant was, at the time of the offence, 20 years of age or less; and

            (b)         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; and

            (c)         the defendant was not, at the time of the offence, a person in a position of authority in relation to the victim.

        (6a)         If—

            (a)         the defendant commits an offence under section 63B(3) of the Criminal Law Consolidation Act 1935 ; and

            (b)         by reason of that offence, the defendant is taken to have committed a serious sexual offence or a prescribed serious sexual offence for the purposes of this section; and

            (c)         the victim of the offence is a fictitious person represented to the defendant as a real person,

the court may, in considering the circumstances of the offending for the purposes of subsection (6)(b) in relation to the victim's age and the age difference between the defendant and the victim, take into consideration the age that the defendant believed the victim to be at the time of the offence.

        (7)         For the purposes of subsection (6), a person is in "a position of authority" in relation to a victim (the " child") if—

            (a)         the person is a teacher and the child is a pupil of the teacher or of a school at which the teacher works; or

            (b)         the person is a parent, step-parent, guardian or foster parent of the child or the de facto partner or domestic partner of a parent, step-parent, guardian or foster parent of the child; or

            (c)         the person provides religious, sporting, musical or other instruction to the child; or

            (d)         the person is a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) in a religious or spiritual group attended by the child; or

            (e)         the person is a health professional or social worker providing professional services to the child; or

            (f)         the person is responsible for the care of the child and the child has a cognitive impairment; or

            (g)         the person is employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982 ) or a training centre (within the meaning of the Young Offenders Act 1993 ), or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or

            (h)         the person is employed or providing services in a licensed children's residential facility (within the meaning of the Children and Young People (Safety) Act 2017 ), or a residential care facility or other facility established under section 36 of the Family and Community Services Act 1972 , or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or

                  (i)         the person is an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).

        (8)         A description of an offence appearing in brackets in this section is for convenience of reference only.



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