Corrections and Sentencing Acts (Home Detention) Act 2003

i Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purposes 1 2. Commencement 3 PART 2—AMENDMENTS TO SENTENCING ACT 1991 4 3. Definition 4 4. Time held in custody 4 5. New Subdivision (1D) inserted in Division 2 of Part 3 5 Subdivision (1D)—Home Detention Orders 5 18ZT. Home detention order 5 18ZU. Order not to be made if other residents object 6 18ZV. Home detention not available for certain offences 7 18ZW. Suitability of offender for home detention 8 18ZX. Concurrent and consecutive and later sentences 9 18ZY. Assessment for home detention 10 18ZZ. Undertaking by offender 11 18ZZA. Obligations of offender 12 18ZZB. Core conditions governing home detention 12 18ZZC. Special conditions 16 18ZZD. Sentence not to affect eligibility for benefits 16 18ZZE. Withdrawal of consent 17 18ZZF. Revocation of order on application by offender or Secretary 17 18ZZG. Alleged breach of a home detention order 18 18ZZH. Sanctions for minor breaches 19 18ZZI. Serious breach of home detention order 19 18ZZJ. Adult Parole Board may require offender to appear before it 21 18ZZK. Decision of Adult Parole Board 21 18ZZL. Effect of revocation of home detention order 23 18ZZM. Re-hearing of revocation made in absence of offender 24 18ZZN. Reconsideration of revocation if approved residence available 25 -- 1 of 65 -- Section Page ii 18ZZO. Revocation of order by court 27 18ZZP. Expiry of home detention order 27 18ZZQ. Service of notices on offender 27 18ZZR. Annual report 28 6. New Division 2B inserted in Part 6 28 Division 2B—Home Detention Assessment Reports 28 99F. Home detention assessment report 28 99G. Contents of home detention assessment report 29 99H. Distribution of home detention assessment report 30 99I. Disputed home detention assessment report 31 99J. Disclosure of information 31 7. Regulations 32 8. New section 127A inserted 33 127A. Transitional provisions—Corrections and Sentencing Acts (Home Detention) Act 2003 33 9. Repeal of home detention provisions 33 10. New section 127B inserted 34 127B. Transitional provision—repeal of amendments made by Corrections and Sentencing Acts (Home Detention) Act 2003 34 PART 3—AMENDMENTS TO CORRECTIONS ACT 1986 35 11. Definitions 35 12. Persons deemed to be in Secretary's custody 35 13. Victim may be given certain information about a prisoner 35 14. New Division 4 inserted in Part 8 36 Division 4—Home Detention Orders 36 59. Home detention order 36 60. Order must not be made if other residents object 37 60A. Home detention not available for certain offences 38 60B. Suitability of prisoner for home detention 39 60C. Evidence of home detention order 40 60D. Assessment for home detention 40 60E. Contents of home detention assessment report 41 60F. Disclosure of information 42 60G. Medical examination of prisoner 43 60H. Undertaking by prisoner 44 60I. Obligations of offender 44 60J. Core conditions governing home detention 45 60K. Special conditions 48 60L. Withdrawal of consent 49 60M. Revocation of order on application by offender or Secretary 49 60N. Alleged breach of a home detention order 50 -- 2 of 65 -- Section Page iii 60O. Sanctions for minor breaches 50 60P. Serious breach of home detention order 51 60Q. Board may require offender to appear before it 52 60R. Decision of Board 53 60S. Effect of revocation of home detention order 54 60T. Re-hearing of revocation made in absence of offender 55 60U. Reconsideration of revocation if approved residence available 57 60V. Revocation of order by court 58 60W. Expiry of home detention order 58 60X. Service of notices on offender 58 15. Functions of Adult Parole Board 59 16. Assistance to Board 59 17. Annual report 59 18. Community corrections officers subject to direction of Board 60 19. Regulations 60 20. Repeal of home detention provisions 60 21. New section 116 inserted 61 116. Transitional provision—repeal of amendments made by Corrections and Sentencing Acts (Home Detention) Act 2003 61 ═══════════════ ENDNOTES 62 -- 3 of 65 -- 1 Corrections and Sentencing Acts (Home Detention) Act 2003 † [Assented to 16 June 2003] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purposes The purposes of this Act are— (a) to amend the Sentencing Act 1991— (i) to empower a court that imposes a sentence to a term of imprisonment to order that the term be served by way of home detention; and Victoria No. 53 of 2003 -- 4 of 65 -- Part 1—Preliminary Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 2 (ii) to define the circumstances in which a home detention order can be made; and (iii) to define the classes of offenders in respect of whom a home detention order can be made; and (iv) to provide for the assessment of offenders to determine their suitability for home detention; and (v) to provide for the making and revocation of home detention orders; and (vi) to provide for the imposition of conditions in relation to home detention; and (vii) to provide for conditions to specify periods of confinement and the circumstances in which an offender may be absent from home under a home detention order; and (viii) to regulate the conduct of the offender under a home detention order and provide for the monitoring of that conduct; and (b) to amend the Corrections Act 1986— (i) to empower the Adult Parole Board to make home detention orders in respect of prisoners nearing the end of a term of imprisonment; and (ii) to define the class of prisoners who are eligible to serve part of a sentence of imprisonment by way of home detention; and (iii) to provide for the assessment of prisoners to determine their suitability for home detention; and s. 1 -- 5 of 65 -- Part 1—Preliminary Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 3 (iv) to provide for the making and revocation of home detention orders; and (v) to provide for the imposition of conditions in relation to home detention; and (vi) to provide for conditions to specify periods of confinement and the circumstances in which the offender may be absent from home under a home detention order; and (vii) to regulate the conduct of the offender under a home detention order and provide for the monitoring of that conduct. 2. Commencement (1) This Part comes into operation on the day on which this Act receives the Royal Assent. (2) Sections 9 and 10 come into operation on the day that is the third anniversary of the day on which section 5 comes into operation. (3) Sections 20 and 21 come into operation on the day that is the third anniversary of the day on which section 14 comes into operation. (4) Subject to sub-section (5), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (5) If a provision referred to in sub-section (4) does not come into operation before 1 January 2004, it comes into operation on that day. _______________ s. 2 -- 6 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 4 PART 2—AMENDMENTS TO SENTENCING ACT 1991 3. Definition In section 3(1) of the Sentencing Act 1991 insert the following definition— ' "home detention order" means an order made under section 18ZT that a sentence of imprisonment be served by way of home detention;'. 4. Time held in custody (1) After section 18(1) of the Sentencing Act 1991 insert— "(1A) If an offender is sentenced to a term of imprisonment and is remanded in custody while the sentence is stayed while a home detention assessment report is prepared on the offender, any period of time during which he or she is held in custody on that remand must be reckoned as a period of imprisonment already served under the sentence.". (2) In section 18(2) of the Sentencing Act 1991 after "Sub-section (1)" insert "or (1A)". (3) In section 18(3) of the Sentencing Act 1991 after "sub-section (1)" insert "or (1A)". s. 3 See: Act No. 49/1991. Reprint No. 6 as at 1 August 2001 and amending Act Nos 45/2001, 61/2001, 80/2001, 1/2002, 2/2002 and 35/2002. LawToday: www.dms. dpc.vic. gov.au -- 7 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 5 (4) After section 18(4) of the Sentencing Act 1991 insert— "(4A) If an offender was held in custody in circumstances to which sub-section (1A) applies, then the court, on making its decision as to whether or not to make the home detention order, must declare the period to be reckoned as already served under the sentence and cause to be noted in the records of the court the fact that the declaration was made and its details.". (5) After section 18(5) of the Sentencing Act 1991 insert— "(5A) The person with custody of the record referred to in sub-section (4A) must indorse on the warrant or other authority for the imprisonment or detention of the offender or on the home detention order particulars of the matters referred to in that sub-section.". (6) In section 18(7) of the Sentencing Act 1991 after "sub-section (4)" insert "or (4A)". 5. New Subdivision (1D) inserted in Division 2 of Part 3 After Subdivision (1C) of Division 2 of Part 3 of the Sentencing Act 1991 insert— 'Subdivision (1D)—Home Detention Orders 18ZT. Home detention order (1) A court that has sentenced a person to imprisonment for 12 months or less may make a home detention order directing that the sentence be served by way of home detention. (2) This section is subject to this Subdivision and to Division 2B of Part 6. s. 5 -- 8 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 6 (3) This section does not apply to the following sentences— (a) a combined custody and treatment order; (b) a drug treatment order; (c) a hospital security order; (d) an intensive correction order; (e) a suspended sentence. 18ZU. Order not to be made if other residents object (1) A court must not make a home detention order unless the court is satisfied that all persons of or over the age of 18 years who will be residing with the offender— (a) have been consulted by the Secretary to the Department of Justice or a person authorised by that Secretary, without the offender being present, about the making of the home detention order; and (b) have acknowledged in writing that they understand the requirements of the home detention order and are prepared to live in conformity with them; and (c) subject to sub-section (3), have consented in writing to the offender residing with them under a home detention order. (2) The court must not make a home detention order unless the court is satisfied that— (a) so far as practicable the wishes and feelings of any person under the age of 18 years who will be residing with the s. 5 -- 9 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 7 offender under a home detention order have been ascertained; and (b) due consideration has been given to them, having regard to the age and understanding of the person. (3) The court may dispense with the consent of a person under sub-section (1), if the court is satisfied that the person lacks the capacity to give that consent. (4) If the court dispenses with the consent of a person, the court must not make the order unless the court is satisfied that— (a) so far as practicable the wishes and feelings of the person have been ascertained; and (b) due consideration has been given to them, having regard to the understanding of the person. 18ZV. Home detention not available for certain offences A court must not make a home detention order in respect of a person if the person has at any time been found guilty of any of the following— (a) an offence to which clause 1, 2, 3 or 4 of Schedule 1 applies; or (b) an offence, which in the opinion of the court, was committed in circumstances which involved behaviour of a sexual nature; or s. 5 -- 10 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 8 (c) an offence that involves the use of a firearm or a prohibited weapon (within the meaning of the Control of Weapons Act 1990); or (d) a breach of an intervention order under section 4 of the Crimes (Family Violence) Act 1987 or an order of a corresponding nature made in another State or a Territory; or (e) an offence under section 21A of the Crimes Act 1958 (stalking). 18ZW. Suitability of offender for home detention (1) A court may only make a home detention order if the court is satisfied— (a) that the offender is a suitable person to serve a sentence of imprisonment by way of home detention; and (b) that it is appropriate in all of the circumstances that the sentence be served by way of home detention; and (c) on written advice received from the Secretary to the Department of Justice, that— (i) a place will be available for the offender in a home detention program approved by the Secretary to the Department of Justice from the day on which the offender commences his or her term of imprisonment; and (ii) the home detention program is located close enough to the place where the offender will reside during the period of the order to s. 5 -- 11 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 9 ensure adequate support and supervision; and (d) that the offender has consented in writing to the making of the order and has made the written undertakings required by section 18ZZ; and (e) that a home detention assessment report has been prepared on the offender in accordance with section 99F. (2) In deciding whether or not to make a home detention order, the court must have regard to the contents of a home detention assessment report on the offender. (3) A court may, for any reason it considers sufficient, decline to make a home detention order despite the contents of a home detention assessment report. (4) A court may make a home detention order only if a home detention assessment report states that, in the opinion of the person making the assessment, the offender is a suitable person to serve a term of imprisonment by way of home detention. 18ZX. Concurrent and consecutive and later sentences (1) If the offender is convicted of more than one offence in the same proceeding the court may only make a home detention order if the aggregate period of imprisonment imposed in respect of all the offences is 12 months or less. (2) If the offender is convicted of an offence committed while serving a sentence of imprisonment by way of home detention, the court may only make a home detention order for the second or subsequent offence if the s. 5 -- 12 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 10 aggregate periods of imprisonment to be served by way of the original and further home detention orders is 12 months or less. 18ZY. Assessment for home detention (1) If the court is considering making a home detention order, the court must notify— (a) the offender; and (b) the Director of Public Prosecutions or the informant or police prosecutor. (2) The offender may inform the court that he or she does not wish to consent to the making of a home detention order. (3) After giving the notice under sub-section (1), the court must order a home detention assessment report in respect of the offender. (4) After giving the notice under sub-section (1), the court may— (a) direct the Secretary to the Department of Justice to arrange for the examination of the offender by a registered medical practitioner within the meaning of the Medical Practice Act 1994, a psychiatrist or a psychologist; and (b) require the registered medical practitioner, psychiatrist or psychologist to give a report in writing to the court. (5) Sub-sections (3) and (4) do not apply if the offender informs the court that he or she does not wish to be considered for a home detention order. s. 5 -- 13 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 11 (6) When a court orders a home detention assessment report— (a) the order stays the execution of the sentence; and (b) the offender is to be remanded in custody, or granted bail in accordance with the Bail Act 1977, as if the offender were still awaiting sentence— until the court decides whether or not to make a home detention order. (7) On the court deciding whether or not to make a home detention order any stay of execution of the sentence under this section comes to an end. 18ZZ. Undertaking by offender (1) Before a home detention order may be made in respect of the offender, the offender must give the following undertakings— (a) that the offender will comply with the offender's obligations under this Subdivision; and (b) that the offender will agree and submit to any monitoring or testing required or directed under the home detention order to ensure compliance with those obligations; and (c) that the offender will pay the incidental costs (if any) incurred by the offender as a result of the home detention order that are determined by the Secretary to the Department of Justice to be payable by the offender. s. 5 -- 14 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 12 (2) An undertaking under this section must— (a) be in writing; and (b) set out the obligations of the offender under a home detention order. 18ZZA. Obligations of offender The obligations of an offender while serving a sentence of imprisonment by way of home detention are— (a) to comply with any requirements of this Subdivision that relate to the offender; and (b) to comply with the requirements of any conditions to which the offender's home detention order is subject. 18ZZB. Core conditions governing home detention The core conditions of a home detention order are— (a) that the offender must be of good behaviour and must not commit any offence during the period of the order; (b) that the offender must advise the Secretary to the Department of Justice as soon as possible if arrested or detained by a member of the police force; (c) that the offender must reside only at premises approved by the Secretary to the Department of Justice; (d) that the offender must remain at the approved residence at all times other than— s. 5 -- 15 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 13 (i) when the absence is authorised by the Secretary to the Department of Justice; or (ii) when it is unsafe to remain there due to immediate danger (such as fire or medical emergency); or (iii) when a person residing at the approved residence has withdrawn his or her consent under section 18ZZE; (e) that during authorised absences from the approved residence the offender must adhere to a specified activity plan that— (i) sets out the activities that the offender must carry out in accordance with the other core conditions; and (ii) is approved or arranged by the Secretary to the Department of Justice; (f) that the offender must advise the Secretary to the Department of Justice as soon as practicable after departure from the approved residence because— (i) it was unsafe to remain there due to immediate danger; or (ii) a person residing at the approved residence has withdrawn his or her consent under section 18ZZE; (g) that the offender must accept any visit to the approved residence by the Secretary to the Department of Justice at any time; s. 5 -- 16 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 14 (h) that the offender must submit to searches of places or things under the immediate control of the offender, as required by the Secretary to the Department of Justice; (i) that the offender must submit to electronic monitoring (including voice recording) of compliance with the home detention order and comply with all instructions given by the Secretary to the Department of Justice in relation to the operation of monitoring systems; (j) that the offender must not tamper with, damage or disable monitoring equipment; (k) that the offender must comply with any reasonable direction of the Secretary to the Department of Justice in relation to association with specified persons; (l) that the offender must not consume alcohol; (m) that the offender must not use prohibited drugs, obtain drugs unlawfully or abuse drugs of any kind; (n) that the offender must submit, as required by the Secretary to the Department of Justice, to breath testing, urinalysis or other test procedures approved by the Secretary for detecting alcohol or drug use; (o) that the offender must accept any reasonable direction of the Secretary to the Department of Justice in relation to the maintenance of or obtaining of employment; s. 5 -- 17 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 15 (p) that the offender must inform any employer of the home detention order and, if directed by the Secretary to the Department of Justice, of the nature of the offence that occasioned it; (q) that the offender must authorise and make reasonable attempts to facilitate contact between any employer of the offender and the Secretary to the Department of Justice; (r) that the offender must engage in personal development activities or in counselling or treatment programs, as directed by the Secretary to the Department of Justice; (s) that the offender must undertake unpaid community work (not exceeding 20 hours per week) as directed by the Secretary to the Department of Justice when not otherwise employed; (t) that the offender must not possess or have in his or her control— (i) any firearm; or (ii) any prohibited weapon within the meaning of the Control of Weapons Act 1990; or (iii) any controlled weapon or dangerous article within the meaning of the Control of Weapons Act 1990 in contravention of that Act; (u) that the offender must comply with any order made under section 84 or 86(1) (whether before or after the making of the home detention order) in relation to s. 5 -- 18 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 16 the offence for which the home detention order is made; (v) that the offender must comply with all reasonable directions made by the Secretary to the Department of Justice. 18ZZC. Special conditions (1) The court may attach to a home detention order any special conditions that it considers appropriate. (2) The court may attach special conditions under sub-section (1) on its own motion or on the application of— (a) the offender; or (b) the Secretary to the Department of Justice; or (c) the Director of Public Prosecutions, the informant or the police prosecutor. (3) The court may at any time vary or revoke any special conditions attached to a home detention order on the application of— (a) the offender; or (b) the Secretary to the Department of Justice; or (c) the Director of Public Prosecutions, the informant or the police prosecutor. 18ZZD. Sentence not to affect eligibility for benefits If a home detention order is made under this Subdivision, the sentence of imprisonment to which the order relates must be taken not to be a sentence of imprisonment for the purpose of any enactment providing for disqualification for, or the forfeiture or suspension of, pensions or other benefits. s. 5 -- 19 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 17 18ZZE. Withdrawal of consent (1) A person residing with an offender who has given a consent under section 18ZU may at any time by notice in writing withdraw that consent. (2) A notice of withdrawal of consent must be served on the Secretary to the Department of Justice. (3) An offender must cease to reside in the residence to which the notice relates on being notified by the Secretary to the Department of Justice that a notice of withdrawal of consent has been served under this section. 18ZZF. Revocation of order on application by offender or Secretary (1) If there is no longer any approved residence at which an offender can reside under a home detention order, the Secretary to the Department of Justice may apply to the Adult Parole Board for the revocation of the home detention order. (2) Subject to sub-section (3), the Secretary to the Department of Justice must notify the offender of an application under sub- section (1). (3) The Secretary to the Department of Justice is not required to give the notice under sub- section (2) if the Adult Parole Board is satisfied that the matter is urgent. (4) An offender who is serving a sentence of imprisonment by way of home detention may apply to the Adult Parole Board for the revocation of the home detention order. s. 5 -- 20 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 18 (5) The offender must notify the Secretary to the Department of Justice of an application under sub-section (4). (6) The Secretary to the Department of Justice may make written submissions to the Adult Parole Board in respect of an application under this section. (7) The offender concerned may make written submissions to the Adult Parole Board in respect of— (a) an application under sub-section (1) of which the offender is given notice under this section; or (b) an application under sub-section (4). (8) The Adult Parole Board may, in its discretion, give an offender an opportunity to appear before the Board to be heard in relation to an application. (9) On an application under this section, the Adult Parole Board after considering any submissions may revoke the home detention order. (10) If the Adult Parole Board revokes a home detention order under this section, the Board may issue a warrant authorising any member of the police force to arrest the offender and take the offender to prison. 18ZZG. Alleged breach of a home detention order If an allegation is made to the Secretary to the Department of Justice that an offender has breached a condition of a home detention order, the Secretary must— s. 5 -- 21 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 19 (a) make appropriate inquiries in respect of the alleged breach; and (b) give the offender an opportunity of making an explanation. 18ZZH. Sanctions for minor breaches (1) Subject to section 18ZZI, if, after completing the relevant inquiries, the Secretary to the Department of Justice is satisfied that the offender has breached a condition of the home detention order, the Secretary may impose either of the following sanctions for the breach— (a) a formal warning; or (b) a more stringent application of the conditions of home detention in accordance with the terms of those conditions, (for example, an increase in the required hours of unpaid community work within the maximum fixed by the court). (2) The Secretary to the Department of Justice must notify an offender of any sanction imposed on the offender under this section. 18ZZI. Serious breach of home detention order (1) If, after completing the relevant inquiries, the Secretary to the Department of Justice is satisfied that the offender has committed a serious breach of a condition of the home detention order, the Secretary must apply to the Adult Parole Board for the revocation or variation of the order. (2) Subject to sub-section (3), the Secretary to the Department of Justice must give the offender notice of an application under sub- section (1). s. 5 -- 22 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 20 (3) The Secretary to the Department of Justice is not required to give the notice under sub- section (2) if the breach is of a core condition of the home detention order set out in section 18ZZB(d) or section 18ZZB(e). (4) The Secretary to the Department of Justice may make written submissions to the Adult Parole Board in respect of an application under sub-section (1). (5) The offender concerned may make written submissions to the Adult Parole Board in respect of an application under sub-section (1) of which the offender is given notice under this section. (6) In this section "serious breach" in relation to a condition of a home detention order means— (a) a breach that compromises the safety and security of the community, any person residing with the offender or the offender's family; or (b) a breach that involves the commission of an offence; or (c) a breach that involves non-compliance with an order made under section 84 or 86(1); or (d) a breach that occurs after repeated failure to comply with the conditions of the order; or (e) a breach of a core condition of the home detention order set out in section 18ZZB(d) or section 18ZZB(e). s. 5 -- 23 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 21 (7) Despite anything to the contrary in this section, if the Secretary to the Department of Justice, after completing the relevant inquiries, is satisfied that a breach of a core condition of a home detention order set out in section 18ZZB(e) is of a minor nature, the Secretary— (a) is not required to make an application under sub-section (1) in respect of that breach; and (b) may impose a sanction under section 18ZZH in respect of that breach. 18ZZJ. Adult Parole Board may require offender to appear before it (1) If an application is made under section 18ZZI for the revocation or variation of a home detention order, the Adult Parole Board may, by notice in writing served on the offender, require the offender to appear before it on a day and at a time and place specified in the notice to be heard in relation to the application. (2) If the offender does not appear in accordance with the notice, the Adult Parole Board may proceed in the absence of the offender. 18ZZK. Decision of Adult Parole Board (1) The Adult Parole Board must consider any evidence and submissions made or given under section 18ZZI or 18ZZJ— (a) by the offender in relation to the alleged breach of conditions; and s. 5 -- 24 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 22 (b) by or on behalf of the Secretary to the Department of Justice in relation to the alleged breach of conditions. (2) If, after complying with sub-section (1), the Adult Parole Board is satisfied that there has been a breach of the conditions of a home detention order and that it is proper in the circumstances of the case to do so, the Board may— (a) revoke the home detention order; and (b) issue a warrant authorising any member of the police force to arrest the offender and take the offender to prison. (3) If, after complying with sub-section (1), the Adult Parole Board is satisfied that an offender has breached the conditions of a home detention order, the Board, instead of revoking the order, may impose any of the following sanctions for the breach— (a) a formal warning; (b) the addition of special conditions to the order; (c) the variation of any special conditions in the order. (4) The Adult Parole Board must notify an offender in writing of the revocation of a home detention order or of any sanction imposed on the offender under this section. (5) The Adult Parole Board may be satisfied that an offender has breached a condition of a home detention order that involves non- compliance with an order made under section 84 or 86(1) whether or not a step has been taken to enforce the order made under s. 5 -- 25 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 23 section 84 or 86(1) in any way referred to in section 85 or 87, as the case requires. (6) The revocation of a home detention order or the imposition of a sanction under this section in respect of a breach that involves non-compliance with an order made under section 84 or 86(1) has no effect on the enforcement of the order made under section 84 or 86(1) in any way referred to in section 85 or 87, as the case requires. 18ZZL. Effect of revocation of home detention order (1) Subject to sub-section (2), if the Adult Parole Board revokes a home detention order under section 18ZZK, the offender must be taken to prison to serve a period of imprisonment that is equal to the period from the effective date of revocation of the home detention order to the date of expiry of the term of imprisonment imposed by the court. (2) The effective date of revocation of a home detention order is the date of the making of the order revoking the home detention order unless the Adult Parole Board directs otherwise under sub-section (3). (3) If the Adult Parole Board considers it appropriate to do so, the Board may in writing direct that the effective date of revocation of the home detention order is to be the date that the breach of the conditions occurred or any later date before the date of the making of the order revoking the home detention order that the Board determines. s. 5 -- 26 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 24 (4) If the Adult Parole Board revokes a home detention order under section 18ZZF, the offender must be taken to prison to serve a period of imprisonment that is equal to the period from the date of revocation of the home detention order to the date of expiry of the term of imprisonment imposed by the court. (5) If an offender is taken to prison after a home detention order relating to the offender is revoked, the Governor of the prison must notify the Secretary to the Department of Justice within 7 days after the offender is received into the prison. 18ZZM. Re-hearing of revocation made in absence of offender (1) This section applies if— (a) the Adult Parole Board revokes a home detention order under section 18ZZF and notice was not given to the offender of the application under that section; or (b) the Adult Parole Board revokes a home detention order under section 18ZZK and notice was not given to the offender of the application under section 18ZZI; or (c) the Adult Parole Board revokes a home detention order under section 18ZZK and— (i) the Board had required the offender to appear before it under section 18ZZJ; and (ii) the offender failed to appear. s. 5 -- 27 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 25 (2) The Adult Parole Board must, by notice in writing, advise the offender that he or she may apply to the Adult Parole Board within the period of 14 days after the date of service of the notice for a re-hearing in respect of the revocation of the home detention order. (3) If an application is made by the offender within the required time, the Adult Parole Board, after considering any evidence and submissions given by the offender and any other information and reports before it, may rescind the revocation of the home detention order. (4) If the revocation of the home detention order is rescinded, the home detention order must be taken for the purposes of this Subdivision not to have been revoked. (5) The Adult Parole Board may determine not to make a document or part of a document considered by the Board under sub-section (3) available to the offender if a member of the Board who is a Judge or retired Judge or Magistrate or retired Magistrate considers that to make the document or part available could endanger any person or inappropriately reveal the identity of any person. (6) Nothing in this section limits the operation of section 18ZZN. 18ZZN. Reconsideration of revocation if approved residence available (1) If the Adult Parole Board revokes a home detention order under section 18ZZF, the offender may apply to the Board to rescind the revocation of the home detention order on the ground that an approved residence at s. 5 -- 28 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 26 which the offender can reside has become available. (2) On an application under sub-section (1), the Adult Parole Board may rescind the revocation of a home detention order if it is satisfied— (a) that a residence at which the offender can reside is available; and (b) that the premises have been approved by the Secretary to the Department of Justice; and (c) on the advice of the Secretary, that the rescission is not prohibited under sub- section (3); and (d) that it is appropriate in all the circumstances to do so. (3) Section 18ZU applies to a rescission order under this section as if— (a) a reference to the court were a reference to the Adult Parole Board; and (b) a reference to the making of a home detention order (except in sub-sections (1)(b) and (c) and (2)(a)) were a reference to the making of the rescission order. (4) If the revocation of the home detention order is rescinded, the home detention order must be taken for the purposes of this Subdivision not to have been revoked. s. 5 -- 29 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 27 18ZZO. Revocation of order by court (1) Subject to sub-section (2), if a court imposes a sentence for another offence on an offender to whom a home detention order relates, the court may revoke the home detention order. (2) If a court imposes a sentence of imprisonment to be served in custody in a prison for another offence on an offender to whom a home detention order relates, the court must revoke the home detention order. (3) If a court revokes a home detention order under sub-section (2), the court must commit the offender to prison for the portion of the term of imprisonment to which he or she was sentenced that was unexpired at the date of the revocation of the order. 18ZZP. Expiry of home detention order Unless a home detention order is revoked under this Subdivision, the order expires at the end of the minimum term of imprisonment to which the offender was sentenced. 18ZZQ. Service of notices on offender (1) Any notice required to be served under this Subdivision on an offender in respect of a home detention order may be served on him or her personally or by posting it to the offender's approved residence. (2) Any notice required under this Subdivision to be served on an offender in custody in a prison must be served on the Secretary to the Department of Justice. (3) The Secretary to the Department of Justice must notify the offender of any notice served on him or her under sub-section (2). s. 5 -- 30 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 28 18ZZR. Annual report The Secretary to the Department of Justice must include in each report of operations prepared in respect of the Department under the Financial Management Act 1994— (a) details of the number of persons placed on home detention orders during the period of the report; and (b) details of the number of persons in respect of whom a home detention order has been revoked and who were taken to prison during that period; and (c) details of the impact of home detention orders on persons residing with offenders; and (d) any other matters in relation to home detention that the Minister directs to be included.'. 6. New Division 2B inserted in Part 6 After Division 2A of Part 6 of the Sentencing Act 1991 insert— "Division 2B—Home Detention Assessment Reports 99F. Home detention assessment report (1) If a court orders a home detention assessment report, the Secretary to the Department of Justice must prepare the report. (2) The purpose of a home detention assessment report is to assess the suitability of the offender for a home detention order. s. 6 -- 31 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 29 (3) The Secretary to the Department of Justice must conduct any investigation that he or she thinks appropriate or that is directed by the court for the purpose of preparing the report. 99G. Contents of home detention assessment report (1) A home detention assessment report must set out the following matters— (a) the age of the offender; (b) the social history and background of the offender; (c) the medical and psychiatric history of the offender; (d) the offender's educational background; (e) the offender's employment history; (f) the circumstances of any other offences of which the offender has been found guilty and which are known to the author of the report; (g) the extent to which the offender is complying with any sentence currently in force in respect of him or her; (h) the offender's financial circumstances; (i) any special needs of the offender; (j) any courses, programs, treatment, therapy or other assistance that may be available to the offender and from which he or she may benefit; (k) an assessment as to whether the offender is an alcoholic or drug- dependent person; s. 6 -- 32 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 30 (l) an assessment of the likelihood that the offender will commit an offence in respect of which an intervention order could be made under the Crimes (Family Violence) Act 1987; (m) an assessment as to whether any circumstances of the offender's residence, employment, study or other prospective activities would not permit effective monitoring of a home detention order; (n) an assessment as to whether persons with whom the offender intends to reside or to continue to reside understand the requirements of the order and are prepared to live in conformity with them; (o) whether the making of the order would place at risk of harm any person who would reside with or in the vicinity of the offender; (p) any other prescribed matter. (2) In preparing the assessment report, the Secretary to the Department of Justice may also take into account any other relevant matters. 99H. Distribution of home detention assessment report (1) A home detention assessment report must be filed with the court no later than the time directed by the court. (2) The Secretary to the Department of Justice must, a reasonable time before the court is to consider the report, provide a copy of the report to— s. 6 -- 33 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 31 (a) the Director of Public Prosecutions, the informant or the police prosecutor; and (b) the offender and the legal practitioners representing the offender. 99I. Disputed home detention assessment report (1) The prosecution or the defence may file with the court a notice of intention to dispute the whole or any part of a home detention assessment report. (2) If a notice is filed under sub-section (1), the court must not make a decision to make or not to make a home detention order unless the party that filed the notice has been given the opportunity— (a) to lead evidence on disputed matters; and (b) to cross-examine the author of the report on its contents. 99J. Disclosure of information (1) Except to the extent necessary to comply with section 99H, the Secretary to the Department of Justice or any employee of that Department must not disclose to any person— (a) any home detention assessment report; or (b) any information obtained for the purpose of preparing that report. Penalty: 5 penalty units. s. 6 -- 34 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 32 (2) Sub-section (1) does not apply to a disclosure made— (a) to the Secretary to the Department of Justice or an employee of that Department in the course of carrying out a duty under this Act; or (b) with the leave of the court that ordered the preparation of the report. (3) For the purpose of determining an application for leave under sub-section (2), the court may order that the relevant document be produced to it and may inspect it but must not make the document available, or disclose its contents, to the applicant for leave. (4) Without limiting the matters the court may take into account for the purpose of determining whether or not to grant leave under sub-section (2), the court must take into account the likelihood, and the nature or extent, of harm that could be caused to any person if the information is disclosed. (5) The court may grant leave under this section in respect of the whole or part of a document.". 7. Regulations Before section 116(1)(b) of the Sentencing Act 1991 insert— "(a) any matter relating to home detention; and". s. 7 -- 35 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 33 8. New section 127A inserted After section 127 of the Sentencing Act 1991 insert— "127A. Transitional provisions—Corrections and Sentencing Acts (Home Detention) Act 2003 (1) An amendment of this Act made by a provision of sections 3, 4, 5, 6 and 7 of the Corrections and Sentencing Acts (Home Detention) Act 2003 applies to a sentence imposed after the commencement of that provision, irrespective of when the offence was committed. (2) For the purposes of this section, a sentence imposed by an appellate court on setting aside a sentencing order must be taken to have been imposed at the time the original sentencing order was made.". 9. Repeal of home detention provisions In the Sentencing Act 1991— (a) in section 3(1), the definition of "home detention order" is repealed; (b) in section 18— (i) sub-sections (1A), (4A) and (5A) are repealed; (ii) in sub-sections (2) and (3) omit "or (1A)"; (iii) in sub-section (7) omit "or (4A)"; (c) Subdivision (1D) of Division 2 of Part 3 is repealed; (d) Division 2B of Part 6 is repealed; (e) section 116(1)(a) is repealed. s. 8 -- 36 of 65 -- Part 2—Amendments to Sentencing Act 1991 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 34 10. New section 127B inserted After section 127A of the Sentencing Act 1991 insert— "127B. Transitional provision—repeal of amendments made by Corrections and Sentencing Acts (Home Detention) Act 2003 Despite the amendments made to this Act by section 9 of the Corrections and Sentencing Acts (Home Detention) Act 2003 this Act as amended by sections 3, 4, 5, 6 and 7 of that Act continues to apply to a home detention order in force immediately before the commencement of section 9 of that Act.". _______________ s. 10 -- 37 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 35 PART 3—AMENDMENTS TO CORRECTIONS ACT 1986 11. Definitions (1) In section 3(1) of the Corrections Act 1986 insert the following definition— ' "home detention order" means a home detention order made under Division 4 of Part 8;'. (2) In section 3(1) of the Corrections Act 1986, in the definition of "correctional order" after paragraph (h) insert— "(i) a home detention order under this Act or under section 18ZT of the Sentencing Act 1991;". 12. Persons deemed to be in Secretary's custody Before section 6C(1)(c) of the Corrections Act 1986 insert— "(bb) a person who is serving a sentence of imprisonment by way of home detention;". 13. Victim may be given certain information about a prisoner In section 30A(2)(b) of the Corrections Act 1986 after "custodial community permit" insert ", home detention". s. 11 See: Act No. 117/1986. Reprint No. 4 as at 26 August 1999 and amending Act Nos 38/1988, 11/1993, 86/2000, 45/2001, 72/2001, 2/2002 and 35/2002. LawToday: www.dms. dpc.vic. gov.au -- 38 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 36 14. New Division 4 inserted in Part 8 After Division 3A of Part 8 of the Corrections Act 1986 insert— 'Division 4—Home Detention Orders 59. Home detention order (1) At the request of a prisoner, the Board may make a home detention order in respect of the prisoner if the Board is satisfied that— (a) on the date the order takes effect— (i) the prisoner will have served at least two-thirds of the minimum term of imprisonment; and (ii) the prisoner will be eligible for parole or for release in 6 months or less; and (b) the prisoner is being held under minimum security conditions. (2) The Board must not make a home detention order in respect of a prisoner if— (a) the prisoner is serving an indefinite sentence; or (b) the prisoner is eligible for parole but has not been granted parole; or (c) the prisoner is on parole. (3) A prisoner to whom a home detention order applies must be taken for all purposes to be serving a sentence of imprisonment for the whole term stated in the order except for the purpose of any enactment providing for disqualification for, or the forfeiture or suspension of, pensions or other benefits. s. 14 -- 39 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 37 60. Order must not be made if other residents object (1) The Board must not make a home detention order unless the Board is satisfied that all persons of or over the age of 18 years who will be residing with the prisoner— (a) have been consulted by the Secretary or a person authorised by the Secretary, without the prisoner being present, about the making of the home detention order; and (b) have acknowledged in writing that they understand the requirements of the home detention order and are prepared to live in conformity with them; and (c) subject to sub-section (3), have consented in writing to the prisoner residing with them under a home detention order. (2) The Board must not make a home detention order unless the Board is satisfied that— (a) so far as practicable the wishes and feelings of any person under the age of 18 years who will be residing with the offender under a home detention order have been ascertained; and (b) due consideration has been given to them, having regard to the age and understanding of the person. (3) The Board may dispense with the consent of a person under sub-section (1), if the Board is satisfied that the person lacks the capacity to give that consent. s. 14 -- 40 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 38 (4) If the Board dispenses with the consent of a person, the Board must not make the order unless the Board is satisfied that— (a) so far as practicable the wishes and feelings of the person have been ascertained; and (b) due consideration has been given to them, having regard to the understanding of the person. 60A. Home detention not available for certain offences The Board must not make a home detention order in respect of a prisoner if the prisoner has at any time been found guilty of any of the following— (a) an offence to which clause 1, 2, 3 or 4 of Schedule 1 to the Sentencing Act 1991 applies; or (b) an offence, which in the opinion of the court, was committed in circumstances which involved behaviour of a sexual nature; or (c) an offence that involves the use of a firearm or a prohibited weapon (within the meaning of the Control of Weapons Act 1990); or (d) a breach of an intervention order under section 4 of the Crimes (Family Violence) Act 1987 or an order of a corresponding nature made in another State or a Territory; or (e) an offence under section 21A of the Crimes Act 1958 (stalking). s. 14 -- 41 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 39 60B. Suitability of prisoner for home detention (1) The Board may only make a home detention order if the Board is satisfied— (a) that the prisoner is a suitable person to be released on home detention; and (b) that it is appropriate in all of the circumstances that a home detention order be made in respect of the prisoner; and (c) on written advice received from the Secretary that— (i) a place will be available for the prisoner in a home detention program approved by the Secretary from the day on which the prisoner is released on home detention; and (ii) the home detention program is located close enough to the place where the prisoner will reside during the period of the order to ensure adequate support and supervision; and (d) that the prisoner has consented in writing to the making of the order and has made the written undertakings required by section 60H; and (e) that a home detention assessment report has been prepared on the prisoner in accordance with section 60D. (2) In deciding whether or not to make a home detention order, the Board must have regard to the contents of a home detention assessment report on the prisoner. s. 14 -- 42 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 40 (3) The Board may, for any reason it considers sufficient, decline to make a home detention order despite the contents of a home detention assessment report. (4) The Board may make a home detention order only if a home detention assessment report states that, in the opinion of the person making the assessment, the prisoner is suitable for a home detention order. 60C. Evidence of home detention order The Secretary of the Board must ensure that 4 copies of a home detention order made by the Board are signed by the Secretary of the Board or a member of the Board and of them— (a) one is retained by the Board; and (b) one is delivered to the Secretary to the Department of Justice; and (c) one is delivered to the prisoner in respect of whom the order is made; and (d) one is delivered to the Governor of the relevant prison if the prisoner is to be released from prison. 60D. Assessment for home detention (1) If the Board is considering making a home detention order, the Board must request the Secretary to prepare a home detention assessment report in respect of a prisoner. (2) The purpose of a home detention assessment report is to assess the suitability of a prisoner for a home detention order. s. 14 -- 43 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 41 (3) The Secretary must conduct any investigation that he or she thinks appropriate or that is directed by the Board for the purpose of preparing the report. 60E. Contents of home detention assessment report (1) A home detention assessment report must set out the following matters— (a) the age of the prisoner; (b) the social history and background of the prisoner; (c) the medical and psychiatric history of the prisoner; (d) the prisoner's educational background; (e) the prisoner's employment history; (f) the circumstances of any other offences of which the prisoner has been found guilty and which are known to the author of the report; (g) the extent to which the prisoner is complying with any sentence currently in force in respect of him or her; (h) the prisoner's financial circumstances; (i) any special needs of the prisoner; (j) any courses, programs, treatment, therapy or other assistance that could be available to the prisoner and from which he or she may benefit; (k) an assessment as to whether the prisoner is an alcoholic or drug- dependent person; s. 14 -- 44 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 42 (l) an assessment of the likelihood that the prisoner will commit an offence in respect of which an intervention order could be made under the Crimes (Family Violence) Act 1987; (m) an assessment as to whether any circumstances of the prisoner's residence, employment, study or other prospective activities would not permit effective monitoring of a home detention order; (n) an assessment as to whether persons with whom the prisoner intends to reside or to continue to reside understand the requirements of the order and are prepared to live in conformity with them; (o) whether the making of the order would place at risk of harm any person who would reside with or in the vicinity of the prisoner; (p) any other prescribed matter. (2) In preparing the assessment report, the Secretary may also take into account any other relevant matters. 60F. Disclosure of information (1) The Secretary or any employee of the Department of Justice must not disclose to any person other than a member of the Board— (a) any home detention assessment report; or (b) any information obtained for the purpose of preparing that report. Penalty: 5 penalty units. s. 14 -- 45 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 43 (2) Sub-section (1) does not apply to a disclosure made— (a) to the Secretary or to an employee of the Department of Justice; or (b) with the leave of the Board. (3) For the purpose of determining an application for leave under sub-section (2), the Board may order that the relevant document be produced to it and may inspect it but must not make the document available, or disclose its contents, to the applicant for leave. (4) Without limiting the matters the Board may take into account for the purpose of determining whether or not to grant leave under sub-section (2), the Board must take into account the likelihood, and the nature or extent, of harm that could be caused to any person if the information is disclosed. (5) The Board may grant leave under this section in respect of the whole or part of a document. 60G. Medical examination of prisoner The Board, in determining whether to make vary or revoke a home detention order, may— (a) direct the Secretary to arrange for the examination of the prisoner by a registered medical practitioner within the meaning of the Medical Practice Act 1994, a psychiatrist or a psychologist; and s. 14 -- 46 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 44 (b) require the registered medical practitioner, psychiatrist or psychologist to give a report in writing to the Board. 60H. Undertaking by prisoner (1) Before a home detention order may be made in respect of a prisoner, the prisoner must give the following undertakings— (a) that the prisoner will comply with an offender's obligations under this Division; and (b) that the prisoner will agree and submit to any monitoring or testing required or directed under the home detention order to ensure compliance with those obligations; and (c) that the prisoner will pay the incidental costs (if any) incurred by the prisoner as a result of the home detention order that are determined by the Secretary to be payable by the prisoner. (2) An undertaking under this section must— (a) be in writing; and (b) set out the obligations of an offender under a home detention order. 60I. Obligations of offender The obligations of an offender while serving a sentence of imprisonment by way of home detention are— (a) to comply with any requirements of this Division that relate to the offender; and (b) to comply with the requirements of any conditions to which the offender's home detention order is subject. s. 14 -- 47 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 45 60J. Core conditions governing home detention The core conditions of a home detention order are— (a) that the offender must be of good behaviour and must not commit any offence during the period of the order; (b) that the offender must advise the Secretary as soon as possible if arrested or detained by a member of the police force; (c) that the offender must reside only at premises approved by the Secretary; (d) that the offender must remain at the approved residence at all times other than— (i) when the absence is authorised by the Secretary; or (ii) when it is unsafe to remain there due to immediate danger (such as fire or medical emergency); or (iii) when a person residing at the approved residence has withdrawn his or her consent under section 60L; (e) that during authorised absences from the approved residence the offender must adhere to a specified activity plan that— (i) sets out the activities that the offender must carry out in accordance with the other core conditions; and (ii) is approved or arranged by the Secretary; s. 14 -- 48 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 46 (f) that the offender must advise the Secretary as soon as practicable after departure from the approved residence because— (i) it was unsafe to remain there due to immediate danger; or (ii) a person residing at the approved residence has withdrawn his or her consent under section 60L; (g) that the offender must accept any visit to the approved residence by the Secretary at any time; (h) that the offender must submit to searches of places or things under the immediate control of the offender, as required by the Secretary; (i) that the offender must submit to electronic monitoring (including voice recording) of compliance with the home detention order and comply with all instructions given by the Secretary in relation to the operation of monitoring systems; (j) that the offender must not tamper with, damage or disable monitoring equipment; (k) that the offender must comply with any reasonable direction of the Secretary in relation to association with specified persons; (l) that the offender must not consume alcohol; s. 14 -- 49 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 47 (m) that the offender must not use prohibited drugs, obtain drugs unlawfully or abuse drugs of any kind; (n) that the offender must submit, as required by the Secretary, to breath testing, urinalysis or other test procedures approved by the Secretary for detecting alcohol or drug use; (o) that the offender must accept any reasonable direction of the Secretary in relation to the maintenance of or obtaining of employment; (p) that the offender must inform any employer of the home detention order and, if directed by the Secretary, of the nature of the offence that occasioned it; (q) that the offender must authorise and make reasonable attempts to facilitate contact between any employer of the offender and the Secretary; (r) that the offender must engage in personal development activities or in counselling or treatment programs, as directed by the Secretary; (s) that the offender must undertake unpaid community work (not exceeding 20 hours per week) as directed by the Secretary when not otherwise employed; (t) that the offender must not possess or have in his or her control— (i) any firearm; or (ii) any prohibited weapon within the meaning of the Control of Weapons Act 1990; or s. 14 -- 50 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 48 (iii) any controlled weapon or dangerous article within the meaning of the Control of Weapons Act 1990 in contravention of that Act; (u) that the offender must comply with any order made under section 84 or 86(1) of the Sentencing Act 1991 (whether before or after the making of the home detention order) in relation to the offence for which the home detention order is made; (v) that the offender must comply with all reasonable directions made by the Secretary. 60K. Special conditions (1) The Board may at any time attach special conditions to a home detention order. (2) The special conditions attached by the Board do not take effect until written notice of the conditions is given to the offender. (3) The Board may at any time vary or revoke any special conditions it attaches to an order. (4) A variation or revocation of a special condition does not take effect until written notice of the variation or revocation is given to the offender. (5) The Board must give the Secretary a copy of any notice it gives to an offender under this section. s. 14 -- 51 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 49 60L. Withdrawal of consent (1) A person residing with an offender who has given a consent under section 60 may at any time by notice in writing withdraw that consent. (2) A notice of withdrawal of consent must be served on the Secretary. (3) An offender must cease to reside in the residence to which the notice relates on being notified by the Secretary that a notice of withdrawal has been served under this section. 60M. Revocation of order on application by offender or Secretary (1) If there is no longer any approved residence at which an offender can reside under a home detention order, the Secretary may apply to the Board for the revocation of the home detention order. (2) Subject to sub-section (3), the Secretary must notify the offender of an application under sub-section (1). (3) The Secretary is not required to give the notice under sub-section (2) if the Board is satisfied that the matter is urgent. (4) An offender who is serving a sentence of imprisonment by way of home detention may apply to the Board for the revocation of the home detention order. (5) The offender must notify the Secretary of an application under sub-section (4). (6) The Secretary may make written submissions to the Board in respect of an application under this section. s. 14 -- 52 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 50 (7) The offender concerned may make written submissions to the Board in respect of— (a) an application under sub-section (1) of which the offender is given notice under this section; or (b) an application under sub-section (4). (8) The Board may, in its discretion, give an offender an opportunity to appear before the Board to be heard in relation to an application. (9) On an application under this section, the Board after considering any submissions may revoke the home detention order. (10) If the Board revokes a home detention order under this section, the Board may issue a warrant authorising any member of the police force to arrest the offender and take the offender to prison. 60N. Alleged breach of a home detention order If an allegation is made to the Secretary that an offender has breached a condition of a home detention order, the Secretary must— (a) make appropriate inquiries in respect of the alleged breach; and (b) give the offender an opportunity of making an explanation. 60O. Sanctions for minor breaches (1) Subject to section 60P, if, after completing the relevant inquiries, the Secretary is satisfied that the offender has breached a condition of the home detention order, the Secretary may impose either of the following sanctions for the breach— (a) a formal warning; or s. 14 -- 53 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 51 (b) a more stringent application of the conditions of home detention in accordance with the terms of those conditions, (for example, an increase in the required hours of unpaid community work within the maximum fixed by the Board). (2) The Secretary must notify the offender of any sanction imposed on the offender under this section. 60P. Serious breach of home detention order (1) If, after completing the relevant inquiries, the Secretary is satisfied that the offender has committed a serious breach of a condition of the home detention order, the Secretary must apply to the Board for the revocation or variation of the order. (2) Subject to sub-section (3), the Secretary must give the offender notice of an application under sub-section (1). (3) The Secretary is not required to give the notice under sub-section (2) if the breach is of a core condition of the home detention order set out in section 60J(d) or section 60J(e). (4) The Secretary may make written submissions to the Board in respect of an application under sub-section (1). (5) The offender concerned may make written submissions to the Board in respect of an application under sub-section (1) of which the offender is given notice under this section. s. 14 -- 54 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 52 (6) In this section "serious breach" in relation to a condition of a home detention order means— (a) a breach that compromises the safety and security of the community, any persons residing with the offender or the offender's family; or (b) a breach that involves the commission of an offence; or (c) a breach that involves non-compliance with an order made under section 84 or 86(1) of the Sentencing Act 1991; or (d) a breach that occurs after repeated failure to comply with the conditions of the order; or (e) a breach of a core condition of the home detention order set out in section 60J(d) or section 60J(e). (7) Despite anything to the contrary in this section, if the Secretary, after completing the relevant inquiries, is satisfied that a breach of a core condition of a home detention order set out in section 60J(e) is of a minor nature, the Secretary— (a) is not required to make an application under sub-section (1) in respect of that breach; and (b) may impose a sanction under section 60O in respect of that breach. 60Q. Board may require offender to appear before it (1) If an application is made under section 60P for the revocation or variation of a home detention order, the Board may, by notice in writing served on the offender, require the s. 14 -- 55 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 53 offender to appear before it on a day and at a time and place specified in the notice to be heard in relation to the application. (2) If the offender does not appear in accordance with the notice, the Board may proceed in the absence of the offender. 60R. Decision of Board (1) The Board must consider any evidence and submissions made or given under section 60P or 60Q— (a) by the offender in relation to the alleged breach of conditions; and (b) by or on behalf of the Secretary in relation to the alleged breach of conditions. (2) If, after complying with sub-section (1), the Board is satisfied that there has been a breach of the conditions of a home detention order and that it is proper in the circumstances of the case to do so, the Board may— (a) revoke the home detention order; and (b) issue a warrant authorising any member of the police force to arrest the offender and return the offender to prison. (3) If, after complying with sub-section (1), the Board is satisfied that an offender has breached the conditions of a home detention order, the Board, instead of revoking the order, may impose any of the following sanctions for the breach— (a) a formal warning; s. 14 -- 56 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 54 (b) the addition of special conditions to the order; (c) the variation of any special conditions in the order. (4) The Board must notify an offender in writing of the revocation of a home detention order or of any sanction imposed on the offender under this section. (5) The Board may be satisfied that an offender has breached a condition of a home detention order that involves non-compliance with an order made under section 84 or 86(1) of the Sentencing Act 1991 whether or not a step has been taken to enforce the order made under section 84 or 86(1) of that Act in any way referred to in section 85 or 87 of that Act, as the case requires. (6) The revocation of a home detention order or the imposition of a sanction under this section in respect of a breach that involves non-compliance with an order made under section 84 or 86(1) of the Sentencing Act 1991 has no effect on the enforcement of the order made under section 84 or 86(1) of that Act in any way referred to in section 85 or 87 of that Act, as the case requires. 60S. Effect of revocation of home detention order (1) Subject to sub-section (2), if the Board revokes a home detention order under section 60R, the offender must be returned to prison to serve a period of imprisonment that is equal to the period from the effective date of revocation of the home detention order to the date of expiry of the term of imprisonment imposed by the court. s. 14 -- 57 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 55 (2) The effective date of revocation of a home detention order is the date of the making of the order revoking the home detention order unless the Board directs otherwise under sub-section (3). (3) If the Board considers it appropriate to do so, the Board may in writing direct that the effective date of revocation of the home detention order is to be the date that the breach of the conditions occurred or any later date before the date of the making of the order revoking the home detention order that the Board determines. (4) If the Board revokes a home detention order under section 60M, the offender must be taken to prison to serve a period of imprisonment that is equal to the period from the date of revocation of the home detention order to the date of expiry of the term of imprisonment imposed by the court. (5) If an offender is returned to prison after a home detention order relating to the offender is revoked, the Governor of the prison must notify the Secretary within 7 days after the offender is returned to the prison. 60T. Re-hearing of revocation made in absence of offender (1) This section applies if— (a) the Board revokes a home detention order under section 60M and notice was not given to the offender of the application under that section; or (b) the Board revokes a home detention order under section 60R and notice was not given to the offender of the application under section 60P; or s. 14 -- 58 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 56 (c) the Board revokes a home detention order under section 60R and— (i) the Board had required the offender to appear before it under section 60Q; and (ii) the offender failed to appear. (2) The Board must, by notice in writing, advise the offender that he or she may apply to the Board within the period of 14 days after the date of service of the notice for a re-hearing in respect of the revocation of the home detention order. (3) If an application is made by the offender within the required time, the Board, after considering any evidence and submissions given by the offender and any other information and reports before it, may rescind the revocation of the home detention order. (4) If the revocation of the home detention order is rescinded, the home detention order must be taken for the purposes of this Division not to have been revoked. (5) The Board may determine not to make a document or part of a document considered by the Board under sub-section (3) available to the offender if a member of the Board who is a Judge or retired Judge or Magistrate or retired Magistrate considers that to make the document or part available could endanger any person or inappropriately reveal the identity of any person. (6) Nothing in this section limits the operation of section 60U. s. 14 -- 59 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 57 60U. Reconsideration of revocation if approved residence available (1) If the Board revokes a home detention order under section 60M, the offender may apply to the Board to rescind the revocation of the home detention order on the ground that an approved residence at which the offender can reside has become available. (2) On an application under sub-section (1), the Board may rescind the revocation of a home detention order if it is satisfied— (a) that a residence at which the offender can reside is available; and (b) that the premises have been approved by the Secretary; and (c) on the advice of the Secretary, that the rescission is not prohibited under sub- section (3); and (d) that it is appropriate in all the circumstances to do so. (3) Section 60 applies to a rescission order under this section as if a reference to the making of a home detention order (except in sub- sections (1)(b) and (c) and (2)(a)) were a reference to the making of the rescission order. (4) If the revocation of the home detention order is rescinded, the home detention order must be taken for the purposes of this Subdivision not to have been revoked. s. 14 -- 60 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 58 60V. Revocation of order by court (1) Subject to sub-section (2), if a court imposes a sentence for another offence on an offender to whom a home detention order relates, the court may revoke the home detention order. (2) If a court imposes a sentence of imprisonment to be served in custody in a prison for another offence on an offender to whom a home detention order relates, the court must revoke the home detention order. (3) If a court revokes a home detention order under sub-section (2), the court must commit the offender to prison for the portion of the term of imprisonment to which he or she was sentenced that was unexpired at the date of the revocation of the order. 60W. Expiry of home detention order Unless a home detention order is revoked under this Division, the order expires at the end of the minimum term of imprisonment to which the offender was sentenced. 60X. Service of notices on offender (1) Any notice required to be served under this Division on an offender in respect of a home detention order may be served on him or her personally or by posting it to the offender's approved residence. (2) Any notice required under this Division to be served on an offender in custody in a prison must be served on the Secretary. (3) The Secretary must notify the offender of any notice served on him or her under sub- section (2).'. s. 14 -- 61 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 59 15. Functions of Adult Parole Board For section 69(1) of the Corrections Act 1986 substitute— "(1) The Board has the functions conferred on it by— (a) this Act and the regulations; and (b) Division 10 of Part 4 of the Children and Young Persons Act 1989 and the regulations made under that Division; and (c) Subdivision (1A) of Division 2 of Part 3 of the Sentencing Act 1991 and the regulations made under that Subdivision; and (d) Subdivision (1D) of Division 2 of Part 3 of the Sentencing Act 1991 and the regulations made under that Subdivision.". 16. Assistance to Board After section 70(a) of the Corrections Act 1986 insert— "(aa) in supervising persons serving a sentence of imprisonment by way of home detention; and". 17. Annual report (1) After section 72(1)(b) of the Corrections Act 1986 insert— "(ba) details of the number of persons placed on home detention orders during the period of the report; and s. 15 -- 62 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 60 (bb) details of the number of persons in respect of whom a home detention order has been revoked and who were returned to prison during that period; and (bc) details of the impact of home detention orders on persons residing with offenders; and". (2) In section 72(1)(c) of the Corrections Act 1986 after "Division" insert "and Division 4". (3) In section 72(5) of the Corrections Act 1986 after "Division" insert "or Division 4". 18. Community corrections officers subject to direction of Board In section 73 of the Corrections Act 1986 after "parole order" insert "or home detention order". 19. Regulations In section 112(1)(n) of the Corrections Act 1986 after "parole orders" insert ", home detention orders". 20. Repeal of home detention provisions In the Corrections Act 1986— (a) in section 3(1)— (i) the definition of "home detention order" is repealed; (ii) in the definition of "correctional order" paragraph (i) is repealed; (b) in section 6C(1), paragraph (bb) is repealed; (c) in section 30A(2)(b) omit ", home detention"; (d) Division 4 of Part 8 is repealed; (e) in section 69(1)(c) for "Subdivision; and" substitute "Subdivision."; s. 18 -- 63 of 65 -- Part 3—Amendments to Corrections Act 1986 Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 61 (f) section 69(1)(d) is repealed; (g) section 70(aa) is repealed; (h) in section 72(1), paragraphs (ba), (bb) and (bc) are repealed; (i) in section 72(1)(c) omit "and Division 4"; (j) in section 72(5) omit "or Division 4"; (k) in section 73 omit "or home detention order"; (l) in section 112(1)(n) omit ", home detention orders". 21. New section 116 inserted At the end of Part 11 of the Corrections Act 1986 insert— "116. Transitional provision—repeal of amendments made by Corrections and Sentencing Acts (Home Detention) Act 2003 Despite the amendments made to this Act by section 20 of the Corrections and Sentencing Acts (Home Detention) Act 2003 this Act, as amended by sections 11, 12, 13, 14, 15, 16, 17, 18 and 19 of that Act, continues to apply to a home detention order in force immediately before the commencement of section 20 of that Act.". ═══════════════ s. 21 -- 64 of 65 -- Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. 53/2003 62 ENDNOTES † Minister's second reading speech— Legislative Assembly: 7 May 2003 Legislative Council: 10 June 2003 The long title for the Bill for this Act was "to amend the Sentencing Act 1991 to empower a court to make a home detention order where it has imposed a sentence of imprisonment and to amend the Corrections Act 1986 to empower the Adult Parole Board to make a home detention order where a prisoner nears the end of a term of imprisonment and for other purposes." Endnotes -- 65 of 65 --