Statutes Amendment (Home Detention) Bill

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (11:23): Obtained leave and introduced a bill for an act to amend the Criminal Law (Sentencing) Act 1988; the Correctional Services Act 1982; and the Young Offenders Act 1993. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (11:23): I move:

That this bill be now read a second time.

The Statutes Amendment (Home Detention) Bill 2015 provides for an alternative mode of penalty to a sentence of imprisonment. The bill amends the Criminal Law (Sentencing Act) 1988 to establish home detention as a valid sentencing option for a court imposing a period of imprisonment. The bill also makes amendments to the Correctional Services Act 1982 to remove restrictions contained in the current home detention provisions to allow suitable prisoners to be released to home detention earlier in their prison sentence and to spend longer periods on home detention.

The bill seeks to divert offenders from custody who are assessed as low risk of causing harm to the community while providing a suitably intensive penalty that involves monitoring and restrictions on liberty. While the safety of the community remains a paramount consideration, the bill provides greater opportunity for minimising the harm associated with imprisonment by allowing a prisoner to maintain important community ties and enhance opportunities for engagement with appropriate treatment and counselling services or to reintegrate into society at an earlier stage in their sentence.

I seek leave to have the remainder of the second reading explanation inserted in Hansard without my reading it.

Leave granted.

Bill in Detail

The amendments to the Correctional Services Act 1982 draw on the experience of the home detention program already implemented and operated by the Department for Correctional Services. The Correctional Services Act 1982 provides that prisoners can be released from prison to serve the remainder of their sentence on home detention—however section 37A of the Correctional Services Act 1982 places some limitations on when a prisoner is eligible to be released and provides a maximum period of 12 months that can be spent on home detention.

The Bill amends the Correctional Services Act 1982 to expand the home detention program. The Bill removes the requirement for prisoners to serve 50 percent of a non-parole period (or total sentence where no non-parole period is fixed) before being eligible for home detention, as well as removing the limitation that prisoners can only spend a maximum period of 12 months on home detention.

The current home detention program has been operating in South Australia since 1986 and is one of the Department for Correctional Services' most successful programs. The program consistently achieves a successful completion rate of between 80% and 90%. Prisoners who are released onto home detention are intensively monitored, supervised and case managed by departmental Community Correctional Officers, including being subject to electronic monitoring.

The use of electronic monitoring for offenders in the community has proven to be an effective supervision tool with more and more jurisdictions around the world adopting this additional supervision method. In this regard, the Department for Correctional Services completed the transition to upgraded electronic equipment that has both radio frequency and global positioning system (GPS) capability.

The introduction of GPS monitoring has increased the ability to rigorously monitor and supervise people in the community including prisoners released onto home detention.

The amendments made by the Bill will allow the Department for Correctional Services to identify a larger number of eligible prisoners who meet the suitability criteria for release on home detention under strict conditions and monitoring. All other eligibility criteria remains—with life sentenced prisoners, sex offenders and terrorist offenders remaining ineligible. The Chief Executive retains the absolute discretion to revoke the release of a prisoner on home detention under the Correctional Services Act 1982 for non-compliance or any other reason. Maintaining this strict criteria and eligibility process will ensure the integrity of the program and its success continues.

The success of the Department for Correctional Services' home detention program provides a relevant background for consideration of the amendments made by the Bill to the Criminal Law (Sentencing Act) 1988 to establish home detention as a valid sentencing option for a sentencing judge. The present sentencing regime in the Criminal Law (Sentencing Act) 1988 does not permit a court to directly sentence a prisoner to a period of imprisonment to be served on home detention. If a period of imprisonment is to be imposed, and good reason does not exist for that sentence to be suspended pursuant to section 38 of the Criminal Law (Sentencing Act) 1988 (or exceptional circumstances are not established for designated offences), then the only option left to the court is a custodial sentence.

The present scheme does not make allowances for offenders who do not satisfy the criteria for a suspended sentence, perhaps because of the nature of the offence committed or their antecedent history, but who at the time of sentencing are considered to pose a low threat to the safety of the community. The result of the present scheme is that there are no alternatives to custody for offenders who do not fall within the scope of section 38 of the Criminal Law (Sentencing Act) 1988, but who have since the time of their offending made significant inroads to rehabilitation, or where the court determines it is appropriate in consideration of all the relevant factors notwithstanding an offender's antecedent history, or for offenders for whom the court is satisfied that the offending represents an isolated incursion into criminal conduct, or for any other reason.

The amendments made by the Bill to the Criminal Law (Sentencing Act) 1988 will allow a court to sentence an offender to a period of imprisonment to be served on home detention. The Bill clearly delineates the hierarchy of sentencing options available to a sentencing court, with a home detention order sitting between a suspended sentence and a custodial sentence of imprisonment. The Bill does not exclude particular classes of offences or lengths of terms of imprisonment in its application—a sentencing court will retain a discretion to be exercised upon consideration of all the relevant facts and circumstances. The paramount consideration for the Court in imposing a home detention order must be the safety of the community. Like the Department for Correctional Services' home detention program, it is intended to be a sentencing option for an offender who has been individually assessed as posing a low risk of causing further harm to the community.

The conditions of a home detention order under the Bill are more intensive than a suspended sentence bond while still allowing the offender to retain ties in the community. The offender is effectively detained in the approved place of residence and can leave only for remunerated employment, necessary health-related treatment, or for education or training activities as required by the court or approved by the home detention officer from the Department for Correctional Services who is assigned supervision of the offender during the term of the order. An order can only be made if there exists a suitable residence at which the offender can be detained and adequate resources for the proper monitoring of the offender while subject to the order, including by an electronic device. The court must take into account the impact the order will have on any victim of the offence for which the sentenced is being imposed, as well as those who will be residing with the offender during the term of the order. These mechanisms provided by the Bill, along with the strict conditions that must be imposed under any order, are directed toward the discretion of the court being properly exercised after careful consideration of all the relevant information.

The home detention order remains in place until an offender is released on parole or until the term of imprisonment expires. If released on parole, an offender who was on a home detention order will be subject to the same provisions of the Correctional Services Act 1982 that regulate release on parole for prisoners who served their sentence in custody.

The Bill provides a power to the Chief Executive of the Department for Correctional Services to revoke a home detention order imposed by a sentencing court if it is suspected on reasonable grounds that a person has breached a condition of an order. Once taken into custody on a suspected breach, the person must be brought before the court not later than the next working day and may be remanded in custody or released on bail pending determination of proceedings relating to the suspected breach. Pursuant to this Bill, it is an offence for a person to fail to comply with or to contravene a condition of a home detention order, with a maximum penalty prescribed as $10,000 or imprisonment for two years. These provisions enable an immediate response to a suspected breach by apprehending an offender without warrant and detaining the person in custody pending an appearance before a court. A court can then make an informed assessment of the risk of an offender being released back into the community on bail pending determination of the breach proceedings.

A suspected breach of a condition of a home detention order will be appropriately determined by a court—either the court that imposed the original order or a superior court. The court must revoke the conditions of home detention and order that the remainder of the sentence be served in custody if there is a breach of a condition of the order, or if the residence at which the offender is detained is no longer suitable and no other suitable residence is available. The court must revoke the conditions of home detention if it is satisfied of the seriousness of a breach or that there are no proper grounds upon which to excuse it. The provisions relating to a breach of a home detention order mirror those in place for proceedings upon breach of a suspended sentence bond.

Conclusion

The Statutes Amendment (Home Detention) Bill 2015 recognises that a custodial term of imprisonment should be a last resort when dealing with offenders. The Bill provides an alternative to custody that achieves a number of important objectives. The Bill minimises harm and economic loss associated with imprisonment through loss or employment and housing, it allows prisoners to retain community and family ties and family units to remain intact, it allows prisoners to continue with rehabilitative efforts and make restitution, it provides prisoners with access to counselling and education programs that are not available in custody, and it reduces the risk of recidivism by promoting rehabilitation and preventing exposure to the environment of a correctional institution.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law (Sentencing) Act 1988

4—Amendment of section 20AA—Interpretation

5—Amendment of section 30—Commencement of sentences and non-parole periods

These amendments are consequential.

6—Insertion of Part 3 Division 3A

This amendment inserts new Division 3A into Part 3:

Division 3A—Home detention

33BA—Preliminary

This section provides for definitions for the purposes of the Division.

33BB—Home detention orders

If a court sentences a defendant to imprisonment and considers that the sentence should not be suspended under Part 5 but also considers that the defendant is a suitable person to serve the sentence on home detention, the court may suspend the sentence and make a home detention order.

The limitations on the court's power to make a home detention order are prescribed, as well as the matters that the court must take into account in making an order.

33BC—Conditions of home detention order

Certain conditions of a home detention order are imposed under the Division and others may be imposed by the court.

33BD—Orders that court may make on breach of condition of home detention order etc

The court must revoke a home detention order and order that the sentence of imprisonment that the person was serving on home detention be carried into effect on breach of a home detention order or if the residence at which the person is required to reside is no longer suitable for the person and no other suitable residence is available. The court may excuse trivial breaches, or other breaches if proper grounds exist to do so.

Other provisions relevant to carrying the defendant's sentence of imprisonment into effect are set out, including provision for a warrant to be issued to arrest a defendant for the purposes of proceedings under the section.

33BE—Apprehension and detention of person subject to supervision order without warrant

A person subject to a home detention order suspected of breaching a condition of the order may be apprehended, without warrant, by a police officer or home detention officer and detained in custody for the purposes of proceedings relating to the suspected breach under section 33BD before the court that imposed the order.

33BF—Offence to contravene or fail to comply with condition of home detention order

It is an offence to contravene or fail to comply with a condition of a home detention order. The maximum penalty is a fine of $10,000 or imprisonment for 2 years.

7—Transitional provision

A transitional provision is included for the purposes of Part 2 of the Bill.

Part 3—Amendment of Correctional Services Act 1982

8—Amendment of section 4—Interpretation

Currently, the word Aborigine is used in the definition of residence in section 37A(6) of the Act. That definition is proposed to be amended to use the more contemporary term 'Aboriginal person' instead. Therefore, the definition of Aborigine and the associated definition of Aboriginal people are deleted as they are otiose.

Definitions of home detention and home detention order are inserted.

An interpretative provision is set out, which provides that, in the Act:

(a) a reference to imprisonment (other than in a penalty provision) includes a reference to imprisonment served on home detention subject to a home detention order; and

(b) a reference to a prisoner includes a reference to a person serving a sentence of imprisonment on home detention subject to a home detention order; and

(c) a reference to the release of a prisoner from a correctional institution or prison includes a reference to the release of a prisoner subject to a home detention order from home detention.

9—Insertion of heading to Part 4 Division 6A Subdivision 1

The heading to the Subdivision is amended to reflect the fact that Part 4 Division 6A relates to release on home detention by the CE (as opposed to a sentence of home detention imposed by a court under Part 3 Division 3A of the Criminal Law (Sentencing) Act 1988).

10—Amendment of section 37A—Release on home detention by CE

Certain limitations (in section 37A(2)(b) and (c)) on the power of the CE to release prisoners on home detention are deleted.

Another amendment clarifies that the conditions of release on home detention by the CE may include a condition that the prisoner be monitored by use of an electronic device.

The definition of residence in section 37A(6) is amended so that it incorporates more contemporary language.

11—Amendment, redesignation and relocation of section 37B—Home detention officers

The amendments to this section reflect the fact that a defendant may be sentenced to home detention by a court under Part 3 Division 3A of the Criminal Law (Sentencing) Act 1988.

12—Insertion of heading to Part 4 Division 6A Subdivision 2

13—Amendment of section 37D—Crown not liable to maintain prisoners on home detention

14—Amendment of heading to Part 4 Division 7

These amendments are consequential

15—Transitional provision

A transitional provision is included for the purposes of Part 3 of the Bill.

Part 4—Amendment of Young Offenders Act 1993

16—Amendment of section 37A—Conditions of home detention

This amendment is to provide for consistency with the amendment to the definition of residence in section 37A(6) of the Correctional Services Act 1982.

Debate adjourned on motion of Mr Gardner.