South Australian Numbered Acts South Australian Numbered Acts6—Insertion of Part 3 Division 3A
Part 3—after Division 3 insert:
33BA—Preliminary
In this Division—
"home detention officer" means a home detention officer appointed by the Minister for Correctional Services under Part 4 Division 6A of the Correctional Services Act 1982
;
"home detention order"—see section 33BB(1)
;
"residence" includes, if the defendant is an Aboriginal person, any place specified by the Court as the person's residence.
33BB—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 5; and
(c) the court considers that the defendant is a suitable person to serve the sentence on home detention,
the court may suspend the sentence under this Division and order that the defendant serve the sentence on home detention (a "home detention order ).
(2) A home detention order—
(a) must not be made—
(i) 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; or
(ii) if the defendant is being sentenced to a sentence of imprisonment that is to be served cumulatively on another term of imprisonment, or concurrently with another term of imprisonment then being served, or about to be served, by the defendant; and
(b) 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.
(3) The paramount consideration of the court when determining whether to make a home detention order must be the safety of the community.
(4) The court must also 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) any report ordered by the court from the CEO or any other person or body for the purpose of assisting the court in determining whether to make a home detention order;
(c) any other matter the court thinks relevant.
33BC—Conditions of home detention order
(1) A home detention order is subject to the following conditions:
(a) a condition requiring the person to remain at the residence specified by the court throughout the period of the home detention order and not to leave that residence at any time during that period except for the following purposes:
(i) remunerated employment;
(ii) urgent medical or dental treatment for the person;
(iii) attendance at a course of education, training or instruction or any other activity as required by the court or as approved or directed by the home detention officer to whom the person is assigned;
(iv) any other purpose approved or directed by the home detention officer;
(b) a condition requiring the person to be of good behaviour during the period of the home detention order;
(c) a condition requiring the person to obey the lawful directions of the home detention officer to whom the person is assigned during the period of the home detention order;
(d) a condition prohibiting the person from possessing a firearm or ammunition (both within the meaning of the Firearms Act 1977
) or any part of a firearm;
(e) a condition requiring the person to submit to such tests (including testing without notice) for gunshot residue as a home detention officer may reasonably require;
(f) such other conditions as the court may specify (including, if the court thinks appropriate, a condition that the person be monitored by use of an electronic device).
(2) A person subject to a home detention order will, unless the home detention order is earlier revoked, remain on home detention—
(a) in the case of a person subject to a non-parole period—until he or she is released on parole; or
(b) in the case of any other person—in accordance with Part 4 Division 7 of the Correctional Services Act 1982
.
(3) Subject to subsection (4)
, the court may vary or revoke a condition imposed under this section.
(4) The court may only vary or revoke the conditions imposed by subsection (1)(d)
and (e)
if the court is satisfied, by evidence given on oath, that—
(a) there are cogent reasons to do so; and
(b) the possession of a firearm, ammunition or part of a firearm by the person does not represent an undue risk to the safety of the public.
33BD—Orders that court may make on breach of condition of home detention order etc
(1) Subject to this section, if the court that imposed a home detention order on a person is satisfied that—
(a) a person subject to a home detention order has breached a condition of the order; or
(b) the residence specified by the court at which the person is required to remain throughout the period of the home detention order is no longer suitable for the person and no other suitable residence is available for his or her detention,
the court must revoke the home detention order and order that the sentence of imprisonment that the person was serving on home detention be carried into effect.
, if the court is satisfied that the failure of the person to comply with the conditions of the home detention order was trivial or that there are proper grounds upon which the failure should be excused, the court—
(a) may refrain from revoking the order; and
(b) may impose a further condition on, or revoke or vary a condition of, the order.
(3) A person subject to a home detention order is not in breach of a condition requiring the person to remain at his or her residence if the person leaves the residence for the purpose of averting or minimising a serious risk of death or injury (either to the person or some other person).
(4) If a court revokes a home detention order and orders that the relevant sentence of imprisonment be carried into effect under subsection (1)
, the court—
(a) may direct that the following periods be counted as part of the term of the sentence:
(i) the period of compliance by the person with the conditions of the home detention order;
(ii) the period spent by the person in custody or on home detention pending determination of the proceedings under this section; and
(b) may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the sentence of imprisonment; and
(c) may direct that the sentence be cumulative on any other sentence, or sentences, of imprisonment then being served, or to be served, by the person.
(5) The court may, if it thinks it is necessary to do so for the purpose of proceedings under this section—
(a) issue a summons to a person subject to a home detention order requiring the person to appear before the court at the time and place specified in the summons; or
(b) issue a warrant for the person's arrest.
(6) If a person fails to appear before the court as required by a summons issued under this section, the court may issue a warrant for the person's arrest.
(7) If a person is arrested pursuant to a warrant issued under this section, the person must be brought before the court or the Magistrates Court not later than the next working day and may be remanded in custody or released on bail pending determination of the proceedings.
(8) A warrant issued under this section authorises the detention of the person in custody pending appearance before the court.
(9) The obligations of a person subject to a home detention order are suspended during any period the person is in custody.
(10) If a person subject to a home detention order is found guilty of an offence by a court of a superior jurisdiction to that of the court that made the order, being an offence committed during the period of the home detention order, any proceedings for breach of condition arising out of the offence are to be taken in the court of superior jurisdiction.
(11) If a person subject to a home detention order is found guilty of an offence by a court of an inferior jurisdiction to that of the court that made the order, being an offence committed during the period of the home detention order, the court of inferior jurisdiction must—
(a) sentence the person for the offence and remand him or her to the court that made the home detention order to be dealt with for breach of condition of the order; or
(b) remand the person to the court that made the home detention order to be sentenced for the offence and dealt with for breach of condition of the order.
(12) The court dealing with a person for breach of condition of a home detention order must hear any evidence adduced tending to establish that the person has failed to comply with a condition of the order and any evidence or representations that the person may wish to adduce or make in reply.
(13) In this section—
"court of an inferior jurisdiction" means—
(a) if the court that made the home detention order is the Supreme Court—the District Court, the ERD Court or the Magistrates Court;
(b) if the court that made the home detention order is the District Court or the ERD Court—the Magistrates Court;
"court of a superior jurisdiction" means—
(a) if the court that made the home detention order is the Magistrates Court—the Supreme Court, the District Court or the ERD Court;
(b) if the court that made the home detention order is the District Court or the ERD Court—the Supreme Court.
33BE—Apprehension and detention of person subject to supervision order without warrant
(1) If the CEO suspects on reasonable grounds that a person subject to a home detention order has breached a condition of the order, the person may be apprehended, without warrant, by a police officer or home detention officer and detained in custody for the purposes of proceedings relating to the suspected breach under section 33BD
before the court that imposed the order.
(2) Section 33BD(7)
to (9)
(inclusive) apply to a person apprehended under this section as if the person were arrested pursuant to a warrant issued under section 33BD
.
33BF—Offence to contravene or fail to comply with condition of home detention order
A person subject to a home detention order who contravenes or fails to comply with a condition of the order is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.