CORRECTIONS AND SENTENCING ACTS (HOME DETENTION) BILL 2003

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CORRECTIONS AND SENTENCING ACTS (HOME DETENTION) BILL 2003

PARLIAMENT OF VICTORIA Corrections and Sentencing Acts (Home Detention) Act 2003 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 (1D) inserted in Division 2 of Part 3 6 Subdivision (1D)--Home Detention Orders 6 18ZT. Home detention order 6 18ZU. Order not to be made if other residents object 7 18ZV. Home detention not available for certain offences 8 18ZW. Suitability of offender for home detention 9 18ZX. Concurrent and consecutive and later sentences 10 18ZY. Assessment for home detention 11 18ZZ. Undertaking by offender 12 18ZZA. Obligations of offender 13 18ZZB. Core conditions governing home detention 13 18ZZC. Special conditions 17 18ZZD. Sentence not to affect eligibility for benefits 17 18ZZE. Withdrawal of consent 18 18ZZF. Revocation of order on application by offender or Secretary 18 18ZZG. Alleged breach of a home detention order 19 18ZZH. Sanctions for minor breaches 20 18ZZI. Serious breach of home detention order 20 18ZZJ. Adult Parole Board may require offender to appear before it 22 18ZZK. Decision of Adult Parole Board 22 18ZZL. Effect of revocation of home detention order 24 18ZZM. Re-hearing of revocation made in absence of offender 25 18ZZN. Reconsideration of revocation if approved residence available 26 i 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Clause Page 18ZZO. Revocation of order by court 28 18ZZP. Expiry of home detention order 28 18ZZQ. Service of notices on offender 28 18ZZR. Annual report 29 6. New Division 2B inserted in Part 6 29 Division 2B--Home Detention Assessment Reports 29 99F. Home detention assessment report 29 99G. Contents of home detention assessment report 30 99H. Distribution of home detention assessment report 31 99I. Disputed home detention assessment report 32 99J. Disclosure of information 32 7. Regulations 33 8. New section 127A inserted 34 127A. Transitional provisions--Corrections and Sentencing Acts (Home Detention) Act 2003 34 9. Repeal of home detention provisions 34 10. New section 127B inserted 35 127B. Transitional provision--repeal of amendments made by Corrections and Sentencing Acts (Home Detention) Act 2003 35 PART 3--AMENDMENTS TO CORRECTIONS ACT 1986 36 11. Definitions 36 12. Persons deemed to be in Secretary's custody 36 13. Victim may be given certain information about a prisoner 36 14. New Division 4 inserted in Part 8 37 Division 4--Home Detention Orders 37 59. Home detention order 37 60. Order must not be made if other residents object 38 60A. Home detention not available for certain offences 39 60B. Suitability of prisoner for home detention 40 60C. Evidence of home detention order 41 60D. Assessment for home detention 41 60E. Contents of home detention assessment report 42 60F. Disclosure of information 43 60G. Medical examination of prisoner 44 60H. Undertaking by prisoner 45 60I. Obligations of offender 45 60J. Core conditions governing home detention 46 60K. Special conditions 49 60L. Withdrawal of consent 50 60M. Revocation of order on application by offender or Secretary 50 60N. Alleged breach of a home detention order 51 ii 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Clause Page 60O. Sanctions for minor breaches 51 60P. Serious breach of home detention order 52 60Q. Board may require offender to appear before it 53 60R. Decision of Board 54 60S. Effect of revocation of home detention order 55 60T. Re-hearing of revocation made in absence of offender 56 60U. Reconsideration of revocation if approved residence available 58 60V. Revocation of order by court 59 60W. Expiry of home detention order 59 60X. Service of notices on offender 59 15. Functions of Adult Parole Board 60 16. Assistance to Board 60 17. Annual report 60 18. Community corrections officers subject to direction of Board 61 19. Regulations 61 20. Repeal of home detention provisions 61 21. New section 116 inserted 62 116. Transitional provision--repeal of amendments made by Corrections and Sentencing Acts (Home Detention) Act 2003 62 ENDNOTES 63 iii 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

PARLIAMENT OF VICTORIA Initiated in Assembly 6 May 2003 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 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-- 1 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 1--Preliminary s. 1 (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 (viii) 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 2 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 1--Preliminary s. 2 (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 20 and 21 come into operation on the day 30 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. 3 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 1--Preliminary s. 2 (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. _______________ 4 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 3 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. 6 5 ' "home detention order" means an order made as at 1 August 2001 under section 18ZT that a sentence of and imprisonment be served by way of home amending Act Nos detention;'. 45/2001, 61/2001, 80/2001, 1/2002, 2/2002 and 35/2002. LawToday: www.dms. dpc.vic. gov.au 4. Time held in custody 10 (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 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) 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)". 5 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 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) 5 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 10 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 15 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.". 20 (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-- 25 '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 30 the sentence be served by way of home detention. (2) This section is subject to this Subdivision and to Division 2B of Part 6. 6 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 5 (3) This section does not apply to the following sentences-- (a) a combined custody and treatment order; 5 (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 10 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-- 15 (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; 20 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 25 (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 30 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 7 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 5 offender under a home detention order have been ascertained; and (b) due consideration has been given to them, having regard to the age and 5 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. 10 (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 15 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 20 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-- 25 (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 30 nature; or 8 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 5 (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 5 (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 10 (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-- 15 (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 20 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 25 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 30 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 9 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 5 ensure adequate support and supervision; and (d) that the offender has consented in writing to the making of the order and 5 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. 10 (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 15 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 20 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 25 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 30 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 35 court may only make a home detention order for the second or subsequent offence if the 10 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 5 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 5 (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. 10 (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 15 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 20 examination of the offender by a registered medical practitioner within the meaning of the Medical Practice Act 1994, a psychiatrist or a psychologist; and 25 (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 30 offender informs the court that he or she does not wish to be considered for a home detention order. 11 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 5 (6) When a court orders a home detention assessment report-- (a) the order stays the execution of the sentence; and 5 (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 10 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. 15 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 20 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 25 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 30 that are determined by the Secretary to the Department of Justice to be payable by the offender. 12 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 5 (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. 5 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 10 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. 15 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 20 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 25 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 30 approved residence at all times other than-- 13 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 5 (i) when the absence is authorised by the Secretary to the Department of Justice; or (ii) when it is unsafe to remain there 5 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 10 18ZZE; (e) that during authorised absences from the approved residence the offender must adhere to a specified activity plan that-- 15 (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 20 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 25 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 30 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; 14 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 5 (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 5 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 10 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 15 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; 20 (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; 25 (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 30 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 35 employment; 15 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 5 (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 5 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 10 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 15 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 20 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 25 meaning of the Control of Weapons Act 1990; or (iii) any controlled weapon or dangerous article within the meaning of the Control of 30 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 35 the home detention order) in relation to 16 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 5 the offence for which the home detention order is made; (v) that the offender must comply with all reasonable directions made by the 5 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. 10 (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 15 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 20 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 25 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 30 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. 17 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 5 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 5 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 10 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. 15 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 20 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 25 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 30 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. 18 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 5 (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 5 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 10 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). 15 (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 20 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 25 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 30 the Department of Justice that an offender has breached a condition of a home detention order, the Secretary must-- 19 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 5 (a) make appropriate inquiries in respect of the alleged breach; and (b) give the offender an opportunity of making an explanation. 5 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 10 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 15 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 20 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 25 (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 30 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- 35 section (1). 20 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 5 (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 5 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). 10 (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. 15 (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 20 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 25 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 30 (e) a breach of a core condition of the home detention order set out in section 18ZZB(d) or section 18ZZB(e). 21 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 5 (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 5 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 10 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 15 (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 20 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 25 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-- 30 (a) by the offender in relation to the alleged breach of conditions; and 22 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 5 (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 5 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-- 10 (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 15 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-- 20 (a) a formal warning; (b) the addition of special conditions to the order; (c) the variation of any special conditions in the order. 25 (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 30 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 23 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 5 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 5 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 10 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 15 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 20 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 25 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 30 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. 24 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 5 (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 5 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 10 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. 15 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 20 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 25 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 30 and-- (i) the Board had required the offender to appear before it under section 18ZZJ; and (ii) the offender failed to appear. 25 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 5 (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 5 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 10 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 15 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 20 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 25 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 30 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 35 on the ground that an approved residence at 26 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 5 which the offender can reside has become available. (2) On an application under sub-section (1), the Adult Parole Board may rescind the 5 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 10 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 15 (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 20 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 25 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 30 not to have been revoked. 27 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 5 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 5 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 10 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 15 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 20 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 25 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 30 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 35 on him or her under sub-section (2). 28 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 6 18ZZR. Annual report The Secretary to the Department of Justice must include in each report of operations prepared in respect of the Department under 5 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 10 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 15 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 20 After Division 2A of Part 6 of the Sentencing Act 1991 insert-- "Division 2B--Home Detention Assessment Reports 99F. Home detention assessment report 25 (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 30 report is to assess the suitability of the offender for a home detention order. 29 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 6 (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. 5 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; 10 (b) the social history and background of the offender; (c) the medical and psychiatric history of the offender; (d) the offender's educational background; 15 (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; 20 (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; 25 (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 30 offender is an alcoholic or drug- dependent person; 30 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 6 (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 5 (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 10 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 15 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 20 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 25 also take into account any other relevant matters. 99H. Distribution of home detention assessment report (1) A home detention assessment report must be 30 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 35 report to-- 31 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 6 (a) the Director of Public Prosecutions, the informant or the police prosecutor; and (b) the offender and the legal practitioners representing the offender. 5 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. 10 (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-- 15 (a) to lead evidence on disputed matters; and (b) to cross-examine the author of the report on its contents. 99J. Disclosure of information 20 (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-- 25 (a) any home detention assessment report; or (b) any information obtained for the purpose of preparing that report. Penalty: 5 penalty units. 32 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 7 (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 5 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 10 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 15 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 20 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 25 document.". 7. Regulations Before section 116(1)(b) of the Sentencing Act 1991 insert-- "(a) any matter relating to home detention; and". 33 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 8 8. New section 127A inserted After section 127 of the Sentencing Act 1991 insert-- "127A. Transitional provisions--Corrections and 5 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 10 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 15 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 20 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 25 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 30 repealed; (d) Division 2B of Part 6 is repealed; (e) section 116(1)(a) is repealed. 34 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 2--Amendments to Sentencing Act 1991 s. 10 10. New section 127B inserted After section 127A of the Sentencing Act 1991 insert-- "127B. Transitional provision--repeal of 5 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 10 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 15 that Act.". _______________ 35 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 11 PART 3--AMENDMENTS TO CORRECTIONS ACT 1986 11. Definitions See: (1) In section 3(1) of the Corrections Act 1986 Act No. insert the following definition-- 117/1986. Reprint No. 4 5 ' "home detention order" means a home as at 26 August detention order made under Division 4 of 1999 and Part 8;'. amending Act Nos (2) In section 3(1) of the Corrections Act 1986, in 38/1988, 11/1993, the definition of "correctional order" after 86/2000, 10 paragraph (h) insert-- 45/2001, 72/2001, 2/2002 and "(i) a home detention order under this Act or 35/2002. under section 18ZT of the Sentencing Act LawToday: www.dms. 1991;". dpc.vic. gov.au 12. Persons deemed to be in Secretary's custody 15 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 20 prisoner In section 30A(2)(b) of the Corrections Act 1986 after "custodial community permit" insert ", home detention". 36 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 14 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 5 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-- 10 (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 15 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-- 20 (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. 25 (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 30 disqualification for, or the forfeiture or suspension of, pensions or other benefits. 37 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 14 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 5 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, 10 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 15 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. 20 (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 25 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. 30 (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. 38 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 14 (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 5 feelings of the person have been ascertained; and (b) due consideration has been given to them, having regard to the understanding of the person. 10 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 15 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 20 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 25 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 30 corresponding nature made in another State or a Territory; or (e) an offence under section 21A of the Crimes Act 1958 (stalking). 39 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 14 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 5 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 10 (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 15 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 20 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 25 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 30 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. 40 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 14 (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. 5 (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. 10 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 15 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 20 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 25 (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 30 report is to assess the suitability of a prisoner for a home detention order. 41 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 14 (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. 5 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; 10 (b) the social history and background of the prisoner; (c) the medical and psychiatric history of the prisoner; (d) the prisoner's educational background; 15 (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; 20 (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; 25 (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 30 prisoner is an alcoholic or drug- dependent person; 42 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 14 (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 5 (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 10 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 15 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 20 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 25 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 30 Board-- (a) any home detention assessment report; or (b) any information obtained for the purpose of preparing that report. 35 Penalty: 5 penalty units. 43 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 14 (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 5 (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 10 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 15 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. 20 (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 25 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 30 the meaning of the Medical Practice Act 1994, a psychiatrist or a psychologist; and 44 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 14 (b) require the registered medical practitioner, psychiatrist or psychologist to give a report in writing to the Board. 5 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 10 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 15 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 20 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 25 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-- 30 (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. 45 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 14 60J. Core conditions governing home detention The core conditions of a home detention order are-- (a) that the offender must be of good 5 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 10 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 15 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 20 fire or medical emergency); or (iii) when a person residing at the approved residence has withdrawn his or her consent under section 60L; 25 (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 30 offender must carry out in accordance with the other core conditions; and (ii) is approved or arranged by the Secretary; 46 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 14 (f) that the offender must advise the Secretary as soon as practicable after departure from the approved residence because-- 5 (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; 10 (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 15 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 20 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, 25 damage or disable monitoring equipment; (k) that the offender must comply with any reasonable direction of the Secretary in relation to association with specified 30 persons; (l) that the offender must not consume alcohol; 47 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 14 (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 5 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 10 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 15 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 20 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; 25 (s) that the offender must undertake unpaid community work (not exceeding 20 hours per week) as directed by the Secretary when not otherwise employed; 30 (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 35 Weapons Act 1990; or 48 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 14 (iii) any controlled weapon or dangerous article within the meaning of the Control of Weapons Act 1990 in 5 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 10 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 15 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 20 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 25 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 30 section. 49 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 14 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 5 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 10 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 15 (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. 20 (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 25 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. 30 (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. 50 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 14 (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 5 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 10 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 15 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 20 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 25 (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 30 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 51 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 14 (b) a more stringent application of the conditions of home detention in accordance with the terms of those conditions, (for example, an increase in 5 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 10 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 15 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 20 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 25 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 30 submissions to the Board in respect of an application under sub-section (1) of which the offender is given notice under this section. 52 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 14 (6) In this section "serious breach" in relation to a condition of a home detention order means-- (a) a breach that compromises the safety 5 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 10 (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 15 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 20 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-- 25 (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. 30 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 35 writing served on the offender, require the 53 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 14 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 5 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 10 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 15 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 20 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 25 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 30 order, may impose any of the following sanctions for the breach-- (a) a formal warning; 54 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 14 (b) the addition of special conditions to the order; (c) the variation of any special conditions in the order. 5 (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 10 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 15 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 20 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 25 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 30 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 35 the date of expiry of the term of imprisonment imposed by the court. 55 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 14 (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 5 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 10 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 15 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 20 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 25 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 30 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 35 not given to the offender of the application under section 60P; or 56 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 14 (c) the Board revokes a home detention order under section 60R and-- (i) the Board had required the offender to appear before it under 5 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 10 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 15 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. 20 (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 25 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 30 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. 57 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 14 60U. Reconsideration of revocation if approved residence available (1) If the Board revokes a home detention order under section 60M, the offender may apply 5 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 10 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 15 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 20 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 25 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 30 not to have been revoked. 58 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 14 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 5 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 10 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 15 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 20 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 25 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 30 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).'. 59 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 15 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 5 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; 10 and (c) Subdivision (1A) of Division 2 of Part 3 of the Sentencing Act 1991 and the regulations made under that Subdivision; and 15 (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 20 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". 25 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 30 the report; and 60 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 18 (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 5 (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". 10 (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 15 "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 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; 25 (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"; 30 (d) Division 4 of Part 8 is repealed; (e) in section 69(1)(c) for "Subdivision; and" substitute "Subdivision."; 61 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Part 3--Amendments to Corrections Act 1986 s. 21 (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; 5 (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". 10 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 15 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 20 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.". 62 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

Corrections and Sentencing Acts (Home Detention) Act 2003 Act No. Endnotes ENDNOTES By Authority. Government Printer for the State of Victoria. 63 551037B.I1-8/5/2003 BILL LA CIRCULATION 25-10-2004

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