Home Detention (NSW)

As a result of amended legislation, this penalty was repealed on 24 September 2018 as a standalone order. However, it may still be imposed as a condition of an intensive corrections order. Home detention is an alternative to full-time imprisonment. In effect, the jail sentence is served at your own address rather than in a jail. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring.

Home detention orders are limited to a maximum period of 18 months. This includes any time that the court may order be spent on parole.

Steps involved before ordering

Before an order is made, the court must be satisfied that, having considered all possible alternatives, no penalty other than imprisonment is appropriate

The next stage is that the court imposes a full-time jail sentence and sets a parole period or gives reasons as to why no parole period is given.

At this stage, your lawyer should request that any jail sentence be served by a home detention order. If your lawyer can satisfy the court that it should do so the court will adjourn the matter so that you can be assessed as to whether you are suitable for a home detention order.

Suitability of offender

Section 78(1) of the Crimes (Sentencing Procedure) Act 1999 states that a home detention order cannot be made unless the court is satisfied that:

• the offender is a suitable person to serve the sentence by way of home detention;
• it is appropriate in all of the circumstances that the sentence be served by way of home detention;
• the persons with whom it is likely the offender would reside, or continue or resume a relationship, during the period of the offender’s home detention have consented in writing, in the form prescribed by the regulations, to the making of the order; and
• the offender has signed an undertaking, in the form prescribed by the regulations, to comply with the offender’s obligations under the home detention order.

Not available for certain offences

Home detention is not available for the following offences:

• Murder attempted murder or manslaughter,
• Sexual assault of adults or children or sexual offences involving children,
• Armed robbery,
• Any offence involving the use of a firearm,
• Assault occasioning actual bodily harm (or any more serious assault, such as malicious wounding or assault with intent to do grievous bodily harm),
• An offence under section 562AB of the Crimes Act 1900 of stalking or intimidating a person with the intention of causing the person to fear personal injury,
• A domestic violence offence against any person with whom it is likely the offender would reside, or continue or resume a relationship, if a home detention order were made,
• An offence under ss 23(2), 24(2), 25(2), 26, 27 or 28 of the Drug Misuse and Trafficking Act 1985 involving a commercial quantity of a prohibited plant or prohibited drug within the meaning of that Act,

Not available for offenders with a certain criminal history

A home detention order may not be made for an offender who has at any time been convicted of any of the following offences in the past:

• Murder, attempted murder or manslaughter,
• Sexual assault of adults or children or sexual offences involving children,
• An offence under section 562AB of the Crimes Act 1900 of stalking or intimidating a person with the intention of causing the person to fear personal injury,
• A domestic violence offence within the last 5 years against any person with whom it is likely the offender would reside, or continue or resume a relationship if a home detention order were made,

A home detention order may not be available for a person who is (or has at any time within the last 5 years been) subject to an apprehended violence order (within the meaning of Part 15A of the Crimes Act 1900) made for the protection of a person with whom it is likely the offender would reside, or continue or resume a relationship, if a home detention order were made

Breaching an order

In a recent study, it was reported that 79% (261 of 330) of offenders subject to a home detention order successfully completed the sentence without breach. If you do breach a home detention order the Parole Board will decide whether to revoke the order. If they do revoke the order it is likely that you will serve any un-served portion of the sentence in full-time jail.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.