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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Home Detention)
Bill 2015
A BILL FOR
An Act to amend the
Criminal
Law (Sentencing) Act 1988
; the
Correctional
Services Act 1982
; and the
Young
Offenders Act 1993
.
Contents
Part 2—Amendment of Criminal Law
(Sentencing) Act 1988
4Amendment of section
20AA—Interpretation
5Amendment of section 30—Commencement of
sentences and non-parole periods
6Insertion of Part 3 Division 3A
33BCConditions of
home detention order
33BDOrders that court may make on
breach of condition of home detention order etc
33BEApprehension
and detention of person subject to supervision order without
warrant
33BFOffence to
contravene or fail to comply with condition of home detention
order
Part 3—Amendment of Correctional
Services Act 1982
8Amendment of section
4—Interpretation
9Insertion of heading to Part 4 Division 6A
Subdivision 1
10Amendment of section 37A—Release on home
detention by CE
11Amendment, redesignation and relocation of
section 37B—Home detention officers
12Insertion of heading to
Part 4 Division 6A Subdivision 2
13Amendment of section 37D—Crown not
liable to maintain prisoners on home detention
14Amendment of heading to Part 4 Division
7
Part 4—Amendment of Young Offenders
Act 1993
16Amendment of section 37A—Conditions of
home detention
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Home Detention)
Act 2015.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Criminal Law (Sentencing)
Act 1988
4—Amendment
of section 20AA—Interpretation
Section 20AA(1), definition of serious firearm offence,
(e)—after subparagraph (ii) insert:
(iia) is serving a sentence of imprisonment on home detention under a home
detention order subject to the condition imposed by section 33BC(1)(d);
or
5—Amendment
of section 30—Commencement of sentences and non-parole
periods
Section 30(1)—after "sentence" second occurring insert:
under Part 5
6—Insertion
of Part 3 Division 3A
Part 3—after Division 3 insert:
Division 3A—Home detention
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 defendant 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 defendant;
(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 defendant is assigned;
(iv) any other purpose approved or directed by the home detention
officer;
(b) a condition requiring the defendant to be of good behaviour during the
period of the home detention order;
(c) a condition requiring the prisoner to obey the lawful directions of
the home detention officer to whom the defendant is assigned during the period
of the home detention order;
(d) a condition
prohibiting the prisoner 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 prisoner 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 prisoner be monitored by use of an electronic
device).
(2) A defendant 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 defendant subject to a non-parole period—until
he or she is released on parole; or
(b) in the case of any other defendant—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
defendant 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.
(2) Despite
subsection (1)(a)
, 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.
The amendments to the
Criminal
Law (Sentencing) Act 1988
made by this Part apply to the sentencing of a defendant after the
commencement of this Part, regardless of whether the offence for which the
defendant is being sentenced was committed before or after that
commencement.
Part 3—Amendment
of Correctional Services
Act 1982
8—Amendment
of section 4—Interpretation
(1) Section 4(1), definitions of Aboriginal people and
Aborigine—delete the definitions
(2) Section 4(1)—after the definition of drug test
insert:
home detention means home detention served subject to a home
detention order or home detention served by a prisoner under Part 4
Division 6A (as the case requires);
home detention order means an order made by a court under
Part 3 Division 3A of the
Criminal
Law (Sentencing) Act 1988
that a prisoner serve a sentence of imprisonment imposed on the prisoner
by the court on home detention;
(3) Section 4—after subsection (2) insert:
(3) For the purposes of this Act, unless the contrary intention
appears—
(a) a reference to imprisonment (other than in a penalty
provision) includes a reference to imprisonment served on home detention subject
to a home detention order; and
(b) a reference to a prisoner includes a reference to a
person serving a sentence of imprisonment on home detention subject to a home
detention order; and
(c) a reference to the release of a prisoner from a correctional
institution or prison includes a reference to the release of a prisoner subject
to a home detention order from home detention.
9—Insertion
of heading to Part 4 Division 6A Subdivision 1
Before section 37A insert:
Subdivision 1—Release on home detention by
CE
10—Amendment
of section 37A—Release on home detention by CE
(1) Section 37A(2)(b) and (c)—delete paragraphs (b) and
(c)
(2) Section 37A(3)(d)—after "appropriate" insert:
(including a condition that the prisoner be monitored by use of an
electronic device)
(3) Section 37A(6), definition of residence—delete the
definition and substitute:
residence includes, if the defendant is an Aboriginal person,
any place specified in the instrument of release as the person's
residence.
11—Amendment,
redesignation and relocation of section 37B—Home detention
officers
(1) Section 37B(1)—delete "authorised" and substitute:
home detention
(2) Section 37B(1)—after "Division" insert:
and Part 3 Division 3A of the
Criminal
Law (Sentencing) Act 1988
(3) Section 37B(2)—delete subsection (2) and substitute:
(2) The CE must—
(a) on the receipt of a copy of a home detention order in respect of a
prisoner; or
(b) on the release of a prisoner under this Division,
assign the prisoner to a home detention officer, and the CE may from time
to time re-assign the prisoner to another home detention officer.
(4) Section 37B(3)—delete "An authorised" and substitute:
A home detention
(5) Section 37B(4)—delete "authorised" and substitute:
home detention
(6) Section 37B(5)—delete "an authorised" wherever occurring and
substitute in each case:
a home detention
(7) Section 37B—redesignate the section as amended by this section
as section 37CA and relocate it so that it is the first section in
Part 4 Division 6A Subdivision 2 (see
section 12
(Insertion of heading to Part 4 Division 6A
Subdivision 2))
12—Insertion
of heading to Part 4 Division 6A Subdivision 2
After section 37C insert:
Subdivision 2—General
13—Amendment
of section 37D—Crown not liable to maintain prisoners on home
detention
Section 37D—after "detention" insert:
(whether the home detention is home detention under this Division or home
detention served under a home detention order)
14—Amendment
of heading to Part 4 Division 7
Heading to Part 4 Division 7—after "prison" insert:
or home detention
The amendments to the
Correctional
Services Act 1982
made by this Part apply in respect of all prisoners serving sentences of
imprisonment on the commencement of this Part, regardless of when the prisoners
were sentenced.
Part 4—Amendment
of Young Offenders
Act 1993
16—Amendment
of section 37A—Conditions of home detention
Section 37A(3), definition of residence—delete the
definition and substitute:
residence includes, if the youth is an Aboriginal person, any
place specified by the Court as the person's residence.