In general terms, home detention is where a person is required to remain inside a specific private residence (eg their home or their parents’ home) at such times and under such conditions as may be imposed by the Court.
Who is ineligible?
Under section 76 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court cannot order home detention for the following offences:
- murder, attempted murder or manslaughter (ss(a));
- sexual assault (ss(b));
- armed robbery (ss(c));
- any offence using a firearm (ss(d));
- any assault involving actual bodily harm or more serious harm (ss(e));
- any offence under s562AB of the Crimes Act 1900 of stalking or intimidating a person with intent to cause fear or personal injury (ss(f));
- 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 involving a commercial quantity of a prohibited substance (ss(h)); or
- any offence under the regulations of the Act.
In addition, the court cannot order home detention if the person:
- has previously been convicted of murder, attempted murder, manslaughter or sexual assault (s77(a));
- has previously been convicted under section 562AB of the Crimes Act 1900 of stalking or intimidating a person with intent to cause fear or personal injury (ss(b));
- 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 (ss(c));
- has been convicted of any offence under the regulations of the Act (ss(d)); or
- is or has within the last 5 years been subject to an apprehended violence order made to protect a person with whom the offender would likely reside if the home detention order were made (ss(e)).
Who is eligible?
If the offender is not excluded by the above rules, the court can make a home detention order if ‘satisfied’ that:
- the offender is a ‘suitable person’ (s78(1)(a);
- such a sentence is ‘appropriate in all the circumstances’ (ss(b));
- the persons with whom the offender will reside have consented in writing (ss(c));
- the offender has signed an undertaking to comply with the home detention order (ss(d)).
In deciding whether or not to make such an order, the court must consider:
- the contents of any assessment report on the offender (eg a ‘pre-sentence report’)(s78(2)(a)); and
- any evidence given by a probation and parole officer (ss(b))
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 (s82(1)).
Such conditions may include requirements relating to employment (eg that the offender can only work outside the home within certain hours etc; ss(2)(a)), requirements to perform community service (ss(b), and so on.
When imposing a home detention order, the court should take ‘all reasonable steps’ to explain the offender’s obligations (s83(1)(a)) and the consequences of breaching the order (ss(b)).