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PARLIAMENT OF VICTORIA
Corrections and Sentencing Acts (Home Detention)
Act 2001
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 3
PART 2--AMENDMENTS TO SENTENCING ACT 1991 5
3. Definition 5
4. Time held in custody 5
5. New Subdivision (1C) inserted in Division 2 of Part 3 6
Subdivision (1C)--Home Detention Orders 6
18X. Home detention order 6
18Y. Order not to be made if other residents object 7
18Z. Home detention not available for certain offences 8
18ZA. Suitability of offender for home detention 9
18ZB. Concurrent and consecutive and later sentences 10
18ZC. Assessment for home detention 10
18ZD. Undertaking by offender 12
18ZE. Obligations of offender 12
18ZF. Core conditions governing home detention 13
18ZG. Special conditions 16
18ZH. Sentence not to affect eligibility for benefits 17
18ZI. Withdrawal of consent 17
18ZJ. Revocation of order on application by offender or
Secretary 18
18ZK. Alleged breach of a home detention order 19
18ZL. Sanctions for minor breaches 19
18ZM. Serious breach of home detention order 20
18ZN. Adult Parole Board may require offender to appear
before it 21
18ZO. Decision of Adult Parole Board 21
18ZP. Effect of revocation of home detention order 23
18ZQ. Re-hearing of revocation made in absence of offender 24
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Clause Page
18ZR. Reconsideration of revocation if approved residence
available 25
18ZS. Revocation of order by court 26
18ZT. Expiry of home detention order 26
18ZU. Service of notices on offender 26
18ZV. Annual report 27
6. New Division 2B inserted in Part 6 27
Division 2B--Home Detention Assessment Reports 28
99F. Home detention assessment report 28
99G. Contents of home detention assessment report 28
99H. Distribution of home detention assessment report 30
99I. Disputed home detention assessment report 30
99J. Disclosure of information 30
7. Regulations 32
8. New section 124 inserted 32
124. Transitional provisions--Corrections and Sentencing
Acts (Home Detention) Act 2001 32
9. Repeal of home detention provisions 32
10. New section 125 inserted 33
125. Transitional provision--repeal of amendments made by
Corrections and Sentencing Acts (Home Detention)
Act 2001 33
PART 3--AMENDMENTS TO CORRECTIONS ACT 1986 34
11. Definitions 34
12. Persons deemed to be in Secretary's custody 34
13. New Division 4 inserted in Part 8 34
Division 4--Home Detention Orders 34
59. Home detention order 34
60. Order must not be made if other residents object 35
60A. Home detention not available for certain offences 36
60B. Suitability of offender for home detention 37
60C. Evidence of home detention order 38
60D. Assessment for home detention 39
60E. Contents of home detention assessment report 39
60F. Disclosure of information 41
60G. Medical examination of prisoner 42
60H. Undertaking by prisoner 42
60I. Obligations of offender 43
60J. Core conditions governing home detention 43
60K. Special conditions 47
60L. Withdrawal of consent 47
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Clause Page
60M. Revocation of order on application by offender or
Secretary 48
60N. Alleged breach of a home detention order 49
60O. Sanctions for minor breaches 49
60P. Serious breach of home detention order 49
60Q. Board may require offender to appear before it 50
60R. Decision of Board 51
60S. Effect of revocation of home detention order 52
60T. Re-hearing of revocation made in absence of offender 53
60U. Reconsideration of revocation if approved residence
available 54
60V. Revocation of order by court 55
60W. Expiry of home detention order 56
60X. Service of notices on offender 56
14. Functions of Adult Parole Board 56
15. Assistance to Board 57
16. Annual report 57
17. Community corrections officers subject to direction of Board 57
18. Regulations 58
19. Repeal of home detention provisions 58
20. New section 115 inserted 59
115. Transitional provision--repeal of amendments made by
Corrections and Sentencing Acts (Home Detention)
Act 2001 59
21. Amendment of Corrections (Custody) Act 2001 59
ENDNOTES 60
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541144B.A1-31/5/2001 BILL LA AS SENT 31/5/2001
PARLIAMENT OF VICTORIA
Initiated in Assembly 2 May 2001
As amended by Assembly 30 May 2001
A BILL
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.
Corrections and Sentencing Acts (Home
Detention) Act 2001
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--
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Corrections and Sentencing Acts (Home Detention) Act 2001
s. 1
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(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
5 (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
10 (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;
15 and
(vi) to provide for the imposition of
conditions in relation to home
detention; and
(vii) to provide for conditions to specify
20 periods of confinement and the
circumstances in which an offender
may be absent from home under a home
detention order; and
(vii) to regulate the conduct of the offender
25 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
30 make home detention orders in respect
of prisoners nearing the end of a term
of imprisonment; and
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(ii) to define the class of prisoners who are
eligible to serve part of a sentence of
imprisonment by way of home
detention; and
5 (iii) to provide for the assessment of
prisoners to determine their suitability
for home detention; and
(iv) to provide for the making and
revocation of home detention orders;
10 and
(v) to provide for the imposition of
conditions in relation to home
detention; and
(vi) to provide for conditions to specify
15 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
20 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
25 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 19 and 20 come into operation on the day
30 that is the third anniversary of the day on which
section 13 comes into operation.
(4) Section 21 comes into operation on a day to be
proclaimed.
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(5) Subject to sub-section (6), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
(6) If a provision referred to in sub-section (5) does
5 not come into operation before 1 January 2002, it
comes into operation on that day.
_______________
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Corrections and Sentencing Acts (Home Detention) Act 2001
s. 3
Act No.
PART 2--AMENDMENTS TO SENTENCING ACT 1991
3. Definition
See: In section 3(1) of the Sentencing Act 1991 insert
Act No.
the following definition--
49/1991
Reprint No. 5
5 ' "home detention order" means an order made
as at
1 January
under section 18X that a sentence of
2000
imprisonment be served by way of home
and
amending
detention;'.
Act Nos
1/2000,
54/2000,
67/2000 and
99/2000
LawToday:
www.dms.
dpc.vic.
gov.au
4. Time held in custody
10 (1) After section 18(1) of the Sentencing Act 1991
insert--
"(1AA) If an offender is sentenced to a term of
imprisonment and is remanded in custody
while the sentence is stayed while a home
15 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
20 sentence.".
(2) In section 18(2) and 18(3) of the Sentencing Act
1991 after "sub-section (1)" insert "or (1AA)".
(3) After section 18(4) of the Sentencing Act 1991
insert--
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"(4A) If an offender was held in custody in
circumstances to which sub-section (1AA)
applies, then the court, on making its
decision as to whether or not to make the
5 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.".
10 (4) 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
15 imprisonment or detention of the offender or
on the home detention order particulars of
the matters referred to in that sub-section.".
(5) In section 18(7) of the Sentencing Act 1991 after
"sub-section (4)" insert "or (4A)".
20 5. New Subdivision (1C) inserted in Division 2 of Part 3
After Subdivision (1B) of Division 2 of Part 3 of
the Sentencing Act 1991 insert--
'Subdivision (1C)--Home Detention Orders
18X. Home detention order
25 (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.
30 (2) This section is subject to this Subdivision
and to Division 2B of Part 6.
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(3) This section does not apply to the following
sentences--
(a) a combined custody and treatment
order;
5 (b) a hospital security order;
(c) an intensive correction order;
(d) a suspended sentence.
18Y. Order not to be made if other residents
object
10 (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
15 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
20 (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
25 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--
30 (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
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(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
5 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
10 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
15 them, having regard to the
understanding of the person.
18Z. Home detention not available for certain
offences
A court must not make a home detention
20 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
25 (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
30 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
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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
5 Crimes Act 1958 (stalking).
18ZA. 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
10 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
15 (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
20 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
25 (ii) the home detention program is
located close enough to the place
where the offender will reside
during the period of the order to
ensure adequate support and
30 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 18ZD; and
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(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
5 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
10 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
15 making the assessment, the offender is a
suitable person to serve a term of
imprisonment by way of home detention.
18ZB. Concurrent and consecutive and later
sentences
20 (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
25 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
30 for the second or subsequent offence if the
aggregate periods of imprisonment to be
served by way of the original and further
home detention orders is 12 months or less.
18ZC. Assessment for home detention
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(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
5 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),
10 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
15 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
20 psychologist; and
(b) require the registered medical
practitioner, psychiatrist or
psychologist to give a report in writing
to the court.
25 (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.
(6) When a court orders a home detention
30 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
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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.
5 (7) On deciding whether or not to make a home
detention order any stay of execution under
this section comes to an end.
18ZD. Undertaking by offender
(1) Before a home detention order may be made
10 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
15 (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
20 (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
25 by the offender.
(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.
30 18ZE. Obligations of offender
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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
5 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.
10 18ZF. 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
15 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
20 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
25 approved residence at all times other
than--
(i) when the absence is authorised by
the Secretary to the Department of
Justice; or
30 (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
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his or her consent under section
18ZI;
(e) that during authorised absences from
the approved residence the offender
5 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
10 conditions; and
(ii) is approved or arranged by the
Secretary to the Department of
Justice;
(f) that the offender must advise the
15 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
20 (ii) a person residing at the approved
residence has withdrawn his or her
consent under section 18ZI;
(g) that the offender must accept any visit
to the approved residence by the
25 Secretary to the Department of Justice
at any time;
(h) that the offender must submit to
searches of places or things under the
immediate control of the offender, as
30 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
35 home detention order and comply with
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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,
5 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
10 association with specified persons;
(l) that the offender must not consume
alcohol;
(m) that the offender must not use
prohibited drugs, obtain drugs
15 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
20 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
25 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 to the
30 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
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offender and the Secretary to the
Department of Justice;
(r) that the offender must engage in
personal development activities or in
5 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
10 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--
15 (i) any firearm; or
(ii) any prohibited weapon within the
meaning of the Control of
Weapons Act 1990; or
(iii) any controlled weapon or
20 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
25 order made under section 84 or 86(1)
(whether before or after the making of
the home detention order) in relation to
the offence for which the home
detention order is made;
30 (v) that the offender must comply with all
reasonable directions made by the
Secretary to the Department of Justice.
18ZG. Special conditions
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(1) The court may attach to a home detention
order any special conditions that it considers
appropriate.
(2) The court may attach special conditions
5 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
10 (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--
15 (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.
20 18ZH. 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
25 purpose of any enactment providing for
disqualification for, or the forfeiture or
suspension of, pensions or other benefits.
18ZI. Withdrawal of consent
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(1) A person residing with an offender who has
given a consent under section 18Y may at
any time by notice in writing withdraw that
consent.
5 (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
10 being notified by the Secretary to the
Department of Justice that a notice of
withdrawal of consent has been served under
this section.
18ZJ. Revocation of order on application by
15 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
20 Adult Parole Board for the revocation of the
home detention order.
(2) The Secretary to the Department of Justice
must notify the offender of an application
under sub-section (1).
25 (3) 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.
(4) The offender must notify the Secretary of the
30 Department of Justice of an application
under sub-section (3).
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(5) The Secretary to the Department of Justice
and the offender concerned may make
written submissions to the Adult Parole
Board in respect of an application under this
5 section.
(6) 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.
10 (7) On an application under this section, the
Adult Parole Board after considering any
submissions may revoke the home detention
order.
(8) If the Adult Parole Board revokes a home
15 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.
18ZK. Alleged breach of a home detention order
20 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--
(a) make appropriate inquiries in respect of
25 the alleged breach; and
(b) give the offender an opportunity of
making an explanation.
18ZL. Sanctions for minor breaches
(1) Subject to section 18ZM, if, after completing
30 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
35 the breach--
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(a) a formal warning; or
(b) a more stringent application of the
conditions of home detention in
accordance with the terms of those
5 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
10 must notify an offender of any sanction
imposed on the offender under this section.
18ZM. Serious breach of home detention order
(1) If, after completing the relevant inquiries, the
Secretary to the Department of Justice is
15 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.
20 (2) The Secretary to the Department of Justice
must give the offender notice of an
application under sub-section (1).
(3) The Secretary to the Department of Justice
and the offender concerned may make
25 written submissions to the Adult Parole
Board in respect of an application under sub-
section (1).
(4) In this section "serious breach" in relation
to a condition of a home detention order
30 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
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(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
5 86(1); or
(d) a breach that occurs after repeated
failure to comply with the conditions of
the order.
18ZN. Adult Parole Board may require offender to
10 appear before it
(1) If an application is made under section
18ZM for the revocation or variation of a
home detention order, the Adult Parole
Board may, by notice in writing served on
15 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
20 with the notice, the Adult Parole Board may
proceed in the absence of the offender.
18ZO. Decision of Adult Parole Board
(1) The Adult Parole Board must consider any
evidence and submissions made or given
25 under section 18ZM or 18ZN--
(a) by the offender in relation to the
alleged breach of conditions; and
(b) by or on behalf of the Secretary to the
Department of Justice in relation to the
30 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
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circumstances of the case to do so, the Board
may--
(a) revoke the home detention order; and
(b) issue a warrant authorising any member
5 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
10 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
15 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
20 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-
25 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
section 84 or 86(1) in any way referred to in
section 85 or 87, as the case requires.
30 (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
35 enforcement of the order made under
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section 84 or 86(1) in any way referred to in
section 85 or 87, as the case requires.
18ZP. Effect of revocation of home detention
order
5 (1) Subject to sub-section (2), if the Adult Parole
Board revokes a home detention order under
section 18ZO, the offender must be taken to
prison to serve a period of imprisonment that
is equal to the period from the effective date
10 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
15 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
20 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
25 detention order that the Board determines.
(4) If the Adult Parole Board revokes a home
detention order under section 18ZJ, the
offender must be taken to prison to serve a
period of imprisonment that is equal to the
30 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
35 detention order relating to the offender is
revoked, the Governor of the prison must
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notify the Secretary to the Department of
Justice within 7 days after the offender is
received into the prison.
18ZQ. Re-hearing of revocation made in absence
5 of offender
(1) If--
(a) the Adult Parole Board revokes a home
detention order under section 18ZO;
and
10 (b) the Board had required the offender to
appear before it under section 18ZN;
and
(c) the offender failed to appear--
the Adult Parole Board must, by notice in
15 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.
20 (2) 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
25 rescind the revocation of the home detention
order.
(3) If the revocation of the home detention order
is rescinded, the home detention order must
be taken for the purposes of this Subdivision
30 not to have been revoked.
(4) The Adult Parole Board may determine not
to make a document or part of a document
considered by the Board under sub-section
(2) available to the offender if a member of
35 the Board who is a Judge or retired Judge or
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Magistrate or retired Magistrate considers
that to make the document or part available
could endanger any person or
inappropriately reveal the identity of any
5 person.
18ZR. Reconsideration of revocation if approved
residence available
(1) If the Adult Parole Board revokes a home
detention order under section 18ZJ, the
10 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.
15 (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
20 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
25 recission is not prohibited under sub-
section (3); and
(d) that it is appropriate in all the
circumstances to do so.
(3) Section 18Y applies to a recission order
30 under this section as if--
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(a) a reference to the court were a
reference to the Adult Parole Board;
and
(b) a reference to the making of a home
5 detention order (except in sub-sections
(1)(b) and (c) and (2)(a)) were a
reference to the making of the recission
order.
(4) If the revocation of the home detention order
10 is rescinded, the home detention order must
be taken for the purposes of this Subdivision
not to have been revoked.
18ZS. Revocation of order by court
(1) Subject to sub-section (2), if a court imposes
15 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
20 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
25 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.
18ZT. Expiry of home detention order
30 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.
35 18ZU. Service of notices on offender
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(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
5 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.
10 (3) The Secretary to the Department of Justice
must notify the offender of any notice served
on him or her under sub-section (2).
18ZV. Annual report
The Secretary to the Department of Justice
15 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
20 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
25 (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
30 included.'.
6. New Division 2B inserted in Part 6
After Division 2A of Part 6 of the Sentencing Act
1991 insert--
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"Division 2B--Home Detention Assessment
Reports
99F. Home detention assessment report
(1) If a court orders a home detention
5 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
10 offender for a home detention order.
(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.
15 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;
20 (b) the social history and background of
the offender;
(c) the medical and psychiatric history of
the offender;
(d) the offender's educational background;
25 (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;
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(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;
5 (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;
10 (k) an assessment as to whether the
offender is an alcoholic or drug-
dependent person;
(l) an assessment of the likelihood that the
offender will commit an offence in
15 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
20 residence, employment, study or other
prospective activities would not permit
effective monitoring of a home
detention order;
(n) an assessment as to whether persons
25 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;
30 (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.
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(2) In preparing the assessment report, the
Secretary to the Department of Justice may
also take into account any other relevant
matters.
5 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.
10 (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--
(a) the Director of Public Prosecutions, the
15 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
20 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
25 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
30 (b) to cross-examine the author of the
report on its contents.
99J. Disclosure of information
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(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
5 person--
(a) any home detention assessment report;
or
(b) any information obtained for the
purpose of preparing that report.
10 Penalty: 5 penalty units.
(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
15 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
20 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
25 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
30 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
35 document.".
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7. Regulations
Before section 116(1)(b) of the Sentencing Act
1991 insert--
"(a) any matter relating to home detention; and".
5 8. New section 124 inserted
At the end of Part 12 of the Sentencing Act 1991
insert--
"124. Transitional provisions--Corrections and
Sentencing Acts (Home Detention) Act
10 2001
(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 2001 applies to a sentence
15 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
20 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--
25 (a) in section 3(1), the definition of "home
detention" is repealed;
(b) in section 18--
(i) sub-sections (1AA), (4A) and (5A) are
repealed;
30 (ii) in sub-sections (2) and (3) omit "or
(1AA)";
(iii) in sub-section (7) omit "or (4A)";
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(c) in Division 2 of Part 3, Subdivision (1C) is
repealed;
(d) in Part 6, Division 2B is repealed;
(e) in section 116(1), paragraph (a) is repealed.
5 10. New section 125 inserted
After section 124 of the Sentencing Act 1991
insert--
"125. Transitional provision--repeal of
amendments made by Corrections and
10 Sentencing Acts (Home Detention) Act
2001
Despite the amendments made to this Act by
section 9 of the Corrections and
Sentencing Acts (Home Detention) Act
15 2001 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.".
20 _______________
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PART 3--AMENDMENTS TO CORRECTIONS ACT 1986
11. Definitions
See:
(1) In section 3 of the Corrections Act 1986 insert Act No.
the following definitions-- 117/1986
Reprint No. 4
5 ' "Board" means the Adult Parole Board as at
26 August
established under Division 5 of Part 8; 1999 and
amending
"home detention order" means a home detention Act Nos
order made under Division 4 of Part 8;'. 38/1988 and
11/1993.
LawToday:
(2) In section 3 of the Corrections Act 1986, in
www.dms.
10 the definition of "correctional order" after dpc.vic.
paragraph (c) insert-- gov.au
"(ca) a home detention order under this Act or
under section 18X of the Sentencing Act
1991;".
15 12. Persons deemed to be in Secretary's custody
After section 4(2)(ab) of the Corrections Act
1986 insert--
"(ac) a person who is serving a sentence of
imprisonment by way of home detention;".
20 13. 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
25 (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--
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(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
5 (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.
10 (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
15 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
20 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.
60. Order must not be made if other residents
25 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--
30 (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
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(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
5 (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
10 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
15 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
20 a person under sub-section (1), if the Board
is satisfied that the person lacks the capacity
to give that consent.
(4) If the Board dispenses with the consent of a
person, the Board must not make the order
25 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
30 them, having regard to the
understanding of the person.
60A. Home detention not available for certain
offences
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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--
5 (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
10 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
15 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
20 State or a Territory; or
(e) an offence under section 21A of the
Crimes Act 1958 (stalking).
60B. Suitability of offender for home detention
(1) The Board may only make a home detention
25 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
30 order be made in respect of the
prisoner; and
(c) on written advice received from the
Secretary that--
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(i) a place will be available for the
prisoner in a home detention
program approved by the
Secretary from the day on which
5 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
10 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
15 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.
20 (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.
(3) The Board may, for any reason it considers
25 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
30 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
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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
5 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
10 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
15 (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
20 report is to assess the suitability of a prisoner
for a home detention order.
(3) The Secretary must conduct any
investigation that he or she thinks
appropriate or that is directed by the Board
25 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--
30 (a) the age of the prisoner;
(b) the social history and background of
the prisoner;
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(c) the medical and psychiatric history of
the prisoner;
(d) the prisoner's educational background;
(e) the prisoner's employment history;
5 (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
10 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,
15 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-
20 dependent person;
(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
25 (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
30 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
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understand the requirements of the
order and are prepared to live in
conformity with them;
(o) whether the making of the order would
5 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
10 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
15 any person other than a member of the
Board--
(a) any home detention assessment report;
or
(b) any information obtained for the
20 purpose of preparing that report.
Penalty: 5 penalty units.
(2) Sub-section (1) does not apply to a
disclosure made--
(a) to the Secretary or to an employee of
25 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
30 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.
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(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
5 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
10 document.
60G. Medical examination of prisoner
The Board, in determining whether to make
vary or revoke a home detention order,
may--
15 (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
20 psychologist; and
(b) require the registered medical
practitioner, psychiatrist or
psychologist to give a report in writing
to the Board.
25 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
30 offender's obligations under this
Division; and
(b) that the prisoner will agree and submit
to any monitoring or testing required or
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directed under the home detention order
to ensure compliance with those
obligations; and
(c) that the prisoner will pay the incidental
5 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--
10 (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
15 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
20 conditions to which the offender's home
detention order is subject.
60J. Core conditions governing home detention
The core conditions of a home detention
order are--
25 (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
30 or detained by a member of the police
force;
(c) that the offender must reside only at
premises approved by the Secretary;
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(d) that the offender must remain at the
approved residence at all times other
than--
(i) when the absence is authorised by
5 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
10 approved residence has withdrawn
his or her consent under section
60L;
(e) that during authorised absences from
the approved residence the offender
15 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
20 conditions; and
(ii) is approved or arranged by the
Secretary;
(f) that the offender must advise the
Secretary as soon as practicable after
25 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
30 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;
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(h) that the offender must submit to
searches of places or things under the
immediate control of the offender, as
required by the Secretary;
5 (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
10 in relation to the operation of
monitoring systems;
(j) that the offender must not tamper with,
damage or disable monitoring
equipment;
15 (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
20 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
25 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
30 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
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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
5 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
10 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
15 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
20 meaning of the Control of
Weapons Act 1990; or
(iii) any controlled weapon or
dangerous article within the
meaning of the Control of
25 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
30 before or after the making of the home
detention order) in relation to the
offence for which the home detention
order is made;
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(v) that the offender must comply with all
reasonable directions made by the
Secretary.
60K. Special conditions
5 (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.
10 (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
15 to the offender.
(5) The Board must give the Secretary a copy of
any notice it gives to an offender under this
section.
60L. Withdrawal of consent
20 (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
25 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
30 section.
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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
5 home detention order, the Secretary may
apply to the Board for the revocation of the
home detention order.
(2) The Secretary must notify the offender of an
application under sub-section (1).
10 (3) 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.
(4) The offender must notify the Secretary of an
15 application under sub-section (3).
(5) The Secretary and the offender concerned
may make written submissions to the Board
in respect of an application under this
section.
20 (6) The Board may, in its discretion, give an
offender an opportunity to appear before the
Board to be heard in relation to an
application.
(7) On an application under this section, the
25 Board after considering any submissions
may revoke the home detention order.
(8) If the Board revokes a home detention order
under this section, the Board may issue a
warrant authorising any member of the
30 police force to arrest the offender and take
the offender to prison.
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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--
5 (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
10 (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
15 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
20 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
25 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
30 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.
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(2) The Secretary must give the offender notice
of an application under sub-section (1).
(3) The Secretary and the offender concerned
may make written submissions to the Board
5 in respect of an application under sub-section
(1).
(4) In this section "serious breach" in relation
to a condition of a home detention order
means--
10 (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
15 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
20 failure to comply with the conditions of
the order.
60Q. Board may require offender to appear
before it
(1) If an application is made under section 60P
25 for the revocation or variation of a home
detention order, the 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
30 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.
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60R. Decision of Board
(1) The Board must consider any evidence and
submissions made or given under section
60P or 60Q--
5 (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.
10 (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
15 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.
20 (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
25 sanctions for the breach--
(a) a formal warning;
(b) the addition of special conditions to the
order;
(c) the variation of any special conditions
30 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.
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(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
5 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.
10 (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
15 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
20 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
25 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
30 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,
35 the Board may in writing direct that the
effective date of revocation of the home
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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
5 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
10 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
15 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
20 (1) If--
(a) the Board revokes a home detention
order under section 60R; and
(b) the Board had required the offender to
appear before it under section 60Q; and
25 (c) the offender failed to appear--
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
30 in respect of the revocation of the home
detention order.
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(2) 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
5 information and reports before it, may
rescind the revocation of the home detention
order.
(3) If the revocation of the home detention order
is rescinded, the home detention order must
10 be taken for the purposes of this Division not
to have been revoked.
(4) The Board may determine not to make a
document or part of a document considered
by the Board under sub-section (2) available
15 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
20 identity of any person.
60U. Reconsideration of revocation if approved
residence available
(1) If the Board revokes a home detention order
under section 60M, the offender may apply
25 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
30 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
35 by the Secretary; and
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(c) on the advice of the Secretary, that the
recission is not prohibited under sub-
section (3); and
(d) that it is appropriate in all the
5 circumstances to do so.
(3) Section 60 applies to a recission 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
10 reference to the making of the recission
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
15 not to have been revoked.
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
20 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
25 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
30 sentenced that was unexpired at the date of
the revocation of the order.
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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
5 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
10 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.
15 (3) The Secretary must notify the offender of
any notice served on him or her under sub-
section (2).'.
14. Functions of Adult Parole Board
In section 69 of the Corrections Act 1986 for
20 sub-section (1) 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
25 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
30 regulations made under that
Subdivision; and
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(d) Subdivision (1C) of Division 2 of Part
3 of the Sentencing Act 1991 and the
regulations made under that
Subdivision.".
5 15. 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;
10 and".
16. Annual report
(1) After section 72(1)(b) of the Corrections Act
1986 insert--
"(ba) details of the number of persons placed on
15 home detention orders during the period of
the report; and
(bb) details of the number of persons in respect of
whom a home detention order has been
revoked and who were returned to prison
20 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
25 after "Division" insert "and Division 4".
(3) In section 72(5) of the Corrections Act 1986 after
"Division" insert "or Division 4".
17. Community corrections officers subject to direction of
Board
30 In section 73 of the Corrections Act 1986 after
"parole order" insert "or home detention order".
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18. Regulations
In section 112(1)(n) of the Corrections Act 1986
after "parole orders" insert ", home detention
orders".
5 19. Repeal of home detention provisions
In the Corrections Act 1986--
(a) in section 3--
(i) the definition of "home detention
order" is repealed;
10 (ii) in the definition of "correctional order"
paragraph (ca) is repealed;
(b) in section 4(2), paragraph (ac) is repealed;
(c) in section 6C(1), paragraph (ba) is repealed;
(d) in section 30A(1) omit ", home detention";
15 (e) in Part 8, Division 4 is repealed;
(f) in section 69(1)(c) for "Subdivision; and"
substitute "Subdivision.";
(g) in section 69, paragraph (d) is repealed;
(h) in section 70, paragraph (aa) is repealed;
20 (i) in section 72(1), paragraphs (ba), (bb) and
(bc) are repealed;
(j) in section 72(1)(c) omit "and Division 4";
(k) in section 72(5) omit "or Division 4";
(l) in section 73 omit "or home detention order";
25 (m) in section 112(1)(n) omit ", home detention
orders".
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20. New section 115 inserted
At the end of Part 11 of the Corrections Act 1986
insert--
"115. Transitional provision--repeal of
5 amendments made by Corrections and
Sentencing Acts (Home Detention) Act
2001
Despite the amendments made to this Act by
section 19 of the Corrections and
10 Sentencing Acts (Home Detention) Act
2001 this Act, as amended by sections 11,
12, 13, 14, 15, 16, 17, 18 and 21 of that Act,
continues to apply to a home detention order
in force immediately before the
15 commencement of section 19 of that Act.".
21. Amendment of Corrections (Custody) Act 2001
(1) In section 5 of the Corrections (Custody) Act
2001, after proposed section 6C(1)(b) insert--
"(ba) a person who is serving a sentence of
20 imprisonment by way of home detention;".
(2) In section 29 of the Corrections (Custody) Act
2001, in proposed section 30A(1)(b) after
"custodial community permit" insert ", home
detention".
25 (3) In section 36 of the Corrections (Custody) Act
2001, in proposed section 70 after paragraph (a)
insert--
"(aa) in supervising persons serving a sentence of
imprisonment by way of home detention;
30 and".
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Corrections and Sentencing Acts (Home Detention) Act 2001
Endnotes
Act No.
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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