Section 20AB of the Crimes Act 1914 (Cwth) allows courts in NSW to impose penalties for commonwealth offences that are similar to penalties available for state crimes.
This means that because Home Detention available for NSW state offences, it is also available for commonwealth offences.
Home Detention is an alternative to full time prison.
This means that the court must:
1. form the view that a period of imprisonment is appropriate, then
2. consider whether the period of imprisonment can be served at home rather than in prison, ie whether the candidate is ‘eligible’, ‘suitable’ and that a home detention order is ‘appropriate’, and if so
3. consider the conditions of the home detention order.
Who is ineligible?
Under NSW legislation, a court cannot order home detention for:
- murder, attempted murder or manslaughter;
- sexual assault;
- armed robbery;
- any offence using a firearm;
- any assault involving actual bodily harm or more serious harm;
- any offence under s562AB of the Crimes Act 1900 (NSW) of stalking or intimidating a person with intent to cause fear or personal injury;
- domestic violence against a person who the offender would likely reside if a home detention order were made (ss(g);
- drug offences under ss23(2) & (3), 24(2), 25(2), 26, 27 or 28 of the Drug Misuse and Trafficking Act 1985 NSW) involving a commercial quantity of a prohibited substance (ss(h)); or
- any offence under the regulations of the Act.
In addition, a NSW court cannot order home detention if the candidate:
- has previously been convicted of murder, attempted murder, manslaughter or sexual assault;
- has previously been convicted under section 562AB of the Crimes Act 1900 (NSW) of stalking or intimidating a person with intent to cause fear or personal injury;
- has been convicted within the previous 5 years of domestic violence against a person who the offender would likely reside if a home detention order were made;
- has been convicted of any offence under the regulations of the Act; or
- is or has within the last 5 years been subject to an AVO made to protect a person with whom the offender would likely reside if the home detention order were made.
Who is eligible?
If the candidate is not excluded by the above rules, the court can make a home detention order if ‘satisfied’ that:
- the candidate is a ‘suitable person’;
- such a sentence is ‘appropriate in all the circumstances’;
- the persons with whom the candidate will reside have consented in writing;
- the offender has signed an undertaking to comply with the home detention order.
In deciding whether or not to make such an order, the court must consider:
- the contents of any assessment report on the candidate (eg a ‘pre-sentence report’); and
- any evidence given by a probation and parole officer.
Can the court impose conditions on a home detention order?
The conditions can ‘impose such conditions as… [he or she] considers appropriate on any home detention order’ except conditions requiring the offender to pay money.
Such conditions may include requirements relating to employment (eg that the candidate can only work outside the home within certain hours etc, requirements to perform community service, and so on.
When imposing a home detention order, the court should take ‘all reasonable steps’ to explain the offender’s obligations and the consequences of breaching the home detention order.