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The Big Shift for Home Detention Laws


New Home Detention legislation has officially come into place this week, allowing Judges the power to sentence low-risk prisoners on home detention as an alternative option earlier in their sentence than previously before. The Statue Amendment (Home Detention) Bill 2015 was introduced into Parliament last September and was officially implemented into the court room last Wednesday 1 September 2016. The South Australian courts can now, in some circumstances, impose home detention orders [s 33BB Criminal Law (Sentencing) Act 1988 (SA)].

This is available for sentences ordered after 1 September 2016, even if the offence happened before that date. The only exception to this is where a sentence which has been already imposed, has been quashed and the defendant re-sentenced [s 7 Statutes Amendment (Home Detention) Act 2016 (SA)]. The main consideration of the court when determining whether to make a home detention order is the safety of the community[s 33BB(3)]. The court also has to take into consideration the impact that the home detention order is likely to have on:

  • any victim of the offence; and    
  • any spouse or domestic partner of the defendant; and
  • any person residing at the residence at which the prisoner would, if released, be required to reside, any relevant report/s ordered by the court; and    
  • any other matter the court thinks relevant.

A home detention order must not be made unless the court is satisfied that the home listed in the order is suitable and available for the detention and that the defendant will be looked after there [s 33BB(2)(a)(i) Criminal Law (Sentencing) Act 1988 (SA)].  A home detention order also cannot be made if the defendant is being sentenced to imprisonment that is to be served cumulatively on another term of imprisonment, or alongside with another term of imprisonment then being served, or about to be served, by the defendant [s 33BB(2)(a)(ii)].

South Australian Sentencing Courts can now order that a larger group of convicted offenders serve on home detention instead of a custodial sentence while still providing a suitably intensive penalty. Previously, it was a requirement for prisoners to serve 50 percent of a non-parole period, or total sentence where a non-parole period is fixed, before being eligible for release on home detention. Further, a limitation was in place; restricting clients to a maximum period of 12 months on home detention.  Now, offenders can have earlier access to longer home detention options and relevant rehabilitative programs. This limits exposure to the prison setting and serves to encourage assimilation into the community with a lower risk of re-offending.

Carter & Co Lawyers are eager to utilise the reform and we look forward to assisting our clients to seize the opportunity for a greater chance of rehabilitation outside of a prison environment. It is inspiring to see the criminal sector transforming to enable our clients to maintain the employment, family and community ties that are so necessary for successful integration into society.



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