Statutes Amendment (Home Detention) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 10 March 2016.)

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (16:46): I thank those honourable members who have contributed to the debate on this bill. As noted, this bill seeks to expand the existing home detention program which has been successfully operating in South Australia since 1986. It will remove existing restrictions to enable suitable prisoners, who have been sentenced to imprisonment to be served in a custodial environment, to be released on home detention earlier and thus spend a longer period of their sentence on home detention than is currently permitted.

It also seeks to establish home detention as a sentencing option for a court when imposing a sentence of imprisonment. In the hierarchy of sentencing options, home detention will sit between a suspended sentence and a custodial sentence of imprisonment. The present sentencing regime does not permit a court to directly sentence a prisoner to a period of imprisonment to be served on home detention.

Currently, if a period of imprisonment is to be imposed and good reason does not exist for that sentence to be suspended, the only option available to the court is to impose a custodial sentence. This overlooks prisoners who do not satisfy the criteria for a suspended sentence but who, at the time of sentencing, no longer pose a risk of reoffending or a threat to the community such as those who have perhaps made significant inroads to rehabilitation or for whom the court is satisfied that offending represents an isolated incursion into criminal conduct.

The safety of the community remains the paramount consideration. This is explicitly stated in the bill. The bill does not exclude particular classes of offence or lengths of terms of imprisonment; this is intentional. The government is of the view that the sentencing court should have the discretion to impose a sentence of imprisonment to be served on home detention in those cases where the individual offender has been assessed as posing a low risk of causing harm to the community or of reoffending where suspension of the sentence would not be appropriate. This allows the prisoner to maintain important community ties, including keeping employment, and enhance opportunities for engagement with appropriate treatment and counselling services.

The bill ensures that suitable restriction on the liberty and monitoring are in place to ensure the safety of the community. As stated, the bill does not exclude particular classes of offence or lengths of terms of imprisonment. The sentencing of an offender is a task undertaken by a judicial officer. The government believes the sentencing court should retain its discretion to impose an appropriate sentence upon consideration of all the relevant facts and circumstances.

The government and our community place great trust in our judges to undertake the difficult task of sentencing every day. The government has confidence that our judges, having all the facts of the offending and circumstances of the offender before them, are best placed to exercise this discretion guided by the requirement to ensure that their paramount consideration in doing so is the safety of the community.

The government notes that the opposition has moved an amendment that seeks to impinge on the discretion of the sentencing judge by excluding certain categories of offenders from the operation of the bill. This will have the consequence of excluding some offenders who may be ideal candidates to serve their sentence of imprisonment on home detention. The government will be resisting this attempt to remove the discretion of the sentencing court.

The Hon. Mr McLachlan has asked me to address various issues raised by the Law Society in their correspondence on 22 October 2015. I note that the Deputy Premier has already done that in the other place; however, I am happy to do so again. The Law Society supports the extension of the use of home detention as both a sentencing option and by way of early release. I also note that the Law Society does not raise any concern regarding the classes of offences whereby home detention is available.

The society has expressed concern that the bill in its current form may not allow sufficient flexibility for the variation of a home detention order, in particular where a person is no longer able to reside at a nominated address without triggering an application for breach of a condition under proposed section 33BD. Proposed section 33BC(3) of the bill gives a court power to vary or revoke a condition of a home detention order. This will allow a person subject to a home detention order to vary his or her place of residence without giving rise to any application for breach of proceedings.

If a nominated address becomes unavailable or unsuitable and no other suitable address can be found, the court must revoke the home detention order and order that the sentence of imprisonment that the person was serving be carried into effect. The requirement of the bill to give paramount consideration to the safety of the community when imposing a home detention order means that an order cannot remain in force if there no longer exists a suitable address at which the offender can be housed and monitored.

However, the bill gives a court power to excuse a breach if it is found that the failure to comply with the conditions of the home detention order was trivial or that there were proper grounds upon which the failure should be excused. Where such a finding is made, a court may refrain from revoking an order and may impose a further condition or vary or revoke a condition of an order. The provision will thus allow a court where appropriate to impose an alternate residential condition on an offender where that alternate address has been secured a short time after the breach occurred.

In practical terms, a court will not likely dispose of a breach application immediately. If an offender has not been able to secure alternative accommodation immediately, the court could in appropriate cases permit a short adjournment of the breach proceedings to enable that to occur. This will allow an offender some time to secure alternative accommodation where an offender has not been able to secure alternative accommodation and the period of imprisonment is called into effect. The only impediment on the same offender being released at a later date at the discretion of the chief executive to serve the balance of the sentence on home detention would be the operation of the ministerial direction as to the operation of the chief executive's discretion.

The law suggests that the exercise of the CEO's discretion to revoke a home detention order under proposed section 33BE will require careful monitoring. Section 33BE(1) permits apprehension without warrant and subsequent detention in custody if the CEO suspects on reasonable grounds that a person has breached a condition of home detention order. Section 33BE(2) already makes provision for monitoring; that is, it requires a person so arrested to be brought before a court not later than the next working day. Accordingly, there is court oversight of the CEO's discretion.

The Law Society raises the question of whether an offender will be remanded in custody or released on bail when charged with a breach of home detention conditions. The bill does not prevent a person charged with a breach of a home detention order from being released on bail pending determination of proceedings. Indeed, a release on bail is explicitly contemplated by the proposed sections 33BD and 33BE. It will be a matter for a court in consideration of all the relevant facts and circumstances to determine the question of custody status of an offender who is charged with a breach of a home detention order pending the outcome of the proceedings.

The Law Society asks that the parliament give consideration to a provision that allows a court to have regard to any period that a person has spent on home detention bail if that person is then ultimately sentenced to a home detention order. It is already a well-established sentencing principle that a court has discretion to take into account the time an offender has spent on home detention bail when imposing a sentence of imprisonment. There is no intention or need for a court to adopt a different approach under the provisions of this bill.

The Law Society suggests that in order to be effective the scheme will need to be supported by increased capacity for supervision and monitoring of those on home detention, particularly those living in rural and remote areas, so that people living in certain areas are not precluded from accessing the scheme. They note that this is particularly pertinent to Aboriginal communities.

The Department for Correctional Services manages 16 community correctional centres and other outreach services which are located across the state and which provide supervision of offenders who are subject to community-based orders. The department's transition to GPS electronic monitoring equipment has increased the ability to rigorously monitor and supervise people in the community, including prisoners released into home detention.

Offenders in the Far North and north-western regions of South Australia are supervised at six locations: Port Pirie, Port Augusta, Whyalla, Ceduna, Port Lincoln and Coober Pedy. Approximately one-third of offenders supervised within the Far North and north-western regions of the state identify as Aboriginal; some live in remote traditional communities that are a significant distance from a community correctional centre. As a consequence, the department operates regular outreach services in order to service those offenders. This outreach includes visiting the APY lands.

The Law Society also raises the issue of sufficient administrative support for the home detention program. They suggest cost savings from increased use of home detention should be applied to increase rehabilitation programs for those serving community-based sentences. It is acknowledged that there will be impacts and associated costs for the Department for Correctional Services in assessing, supervising and monitoring these offenders in the community. However, the proposals in the bill may represent a subsequent and commensurate decrease in cost necessary and associated with accommodating prisoners in custody.

The Law Society also raised the issue of increased housing support where home detention orders can be served by those who are otherwise suitable for home detention but who do not have an appropriate address. On 3 August 2015, cabinet approved a preferred tenderer and budget for a bail accommodation support program. This service will be provided by a not-for-profit organisation that will own and operate the facility and provide associated wrap-around services. The program will capture offenders who are often remanded for short periods of time and will specifically assist disadvantaged groups. The facility should come online in the third quarter of the 2016-17 financial year.

Whilst the bail accommodation support program is not associated with home detention orders, it is a good example of partnering with other service providers to achieve an alternative to custody for some offenders who simply lack suitable housing. It is a great program. In addition, the Department for Correctional Services' integrated housing exits program is coordinated by the department utilising Housing SA stock and is designed to reduce exits into homelessness and the incidence of recidivism by improving the accommodation outcomes for people exiting custodial settings.

There are 60 properties available to prisoners scattered around the metropolitan area and some limited country locations. Participants are able to stay in a property for a period of 12 months. In special circumstances, a further 12 months can be approved. Work is also underway to scope evidence-based best practice accommodation options to further expand housing for those who, at sentencing or on transition back to the community, require suitable and supported accommodation.

The Hon. John Darley has expressed concern that, while there are restrictions for those already serving custodial sentences to be eligible for home detention, there are no restrictions on the courts. As I have already stated, the bill quite intentionally does not exclude particular classes of offence or length of terms of imprisonment for court-sentenced home detention. The sentencing of an offender is a task undertaken by a judicial officer. Judicial independence is fundamental to our justice system.

The government believes the sentencing court should retain its discretion to impose an appropriate sentence upon consideration of all the relevant facts and circumstances. The government and our community place great trust in our judges to undertake the difficult task of sentencing every day. The government has confidence that our judges, having all the facts of the offending and circumstances of the offender before them, are best placed to exercise this discretion, guided by the requirement to ensure that their paramount consideration in doing so is the safety of the community.

There is a vast difference between the decision of an independent judicial officer to impose a sentence upon someone and the decision of a non-judicial officer to make an administrative decision to release someone, who has already been sentenced to a custodial sentence by a judicial officer, on home detention. Again, I thank honourable members for their contributions and support, and I look forward to dealing with this bill expeditiously through the committee stage.

Bill read a second time.