Division 2Division 2 Restrictions on power to make home detention orders
76 Home detention not available for certain offences
A home detention order may not be made in respect of a sentence of imprisonment for any of the following offences or with respect to an aggregate sentence of imprisonment with respect to 2 or more offences, any one of which is one of the following offences:(a) murder, attempted murder or manslaughter,(b) sexual assault of adults or children or sexual offences involving children,(c) armed robbery,(d) any offence involving the use of a firearm, or an imitation firearm, within the meaning of the Firearms Act 1996,(e) assault occasioning actual bodily harm (or any more serious assault, such as malicious wounding or assault with intent to do grievous bodily harm),(f) an offence under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 or section 545AB or 562AB of the Crimes Act 1900 of stalking or intimidating a person with the intention of causing the person to fear personal injury,(g) a domestic violence offence against any person with whom it is likely the offender would reside, or continue or resume a relationship, if a home detention order were made,(h) an offence under section 23 (2), 24 (2), 25 (2), 26, 27 or 28 of the Drug Misuse and Trafficking Act 1985 involving a commercial quantity of a prohibited plant or prohibited drug within the meaning of that Act,(i) any offence prescribed by the regulations for the purposes of this paragraph.
77 Home detention not available for offenders with certain history
(1) A home detention order may not be made for an offender:(a) who has at any time been convicted of any of the following offences:(i) murder, attempted murder or manslaughter,(ii) sexual assault of adults or children or sexual offences involving children, or(b) who has at any time been convicted of an offence under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 or section 545AB or 562AB of the Crimes Act 1900 of stalking or intimidating a person with the intention of causing the person to fear personal injury, or(c) who has at any time within the last 5 years been convicted of a domestic violence offence against any person with whom it is likely the offender would reside, or continue or resume a relationship, if a home detention order were made, or(d) who has at any time been convicted of any offence prescribed by the regulations for the purposes of this paragraph, or(e) who is (or has at any time within the last 5 years been) subject to an apprehended violence order (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007), or an apprehended violence order made under Part 15A of the Crimes Act 1900 before its repeal, being an order made for the protection of a person with whom it is likely the offender would reside, or continue or resume a relationship, if a home detention order were made.(2) Offences prescribed by regulations made for the purposes of subsection (1) (d) may include offences under a law of the Commonwealth or of another State or a Territory.
78 Suitability of offender for home detention
(1) A home detention order may not be made with respect to an offender’s sentence of imprisonment unless the court is satisfied:(a) that the offender is a suitable person to serve the sentence by way of home detention, and(b) that it is appropriate in all of the circumstances that the sentence be served by way of home detention, and(c) that the persons with whom it is likely the offender would reside, or continue or resume a relationship, during the period of the offender’s home detention have consented in writing to the making of the order, and(d) that the offender has signed an undertaking to comply with the offender’s obligations under the home detention order.(2) In deciding whether or not to make a home detention order, the court is to have regard to:(a) the contents of an assessment report on the offender, and(b) such evidence from a probation and parole officer as the court considers necessary for the purpose of deciding whether to make such an order.(3) A court may, for any reason it considers sufficient, decline to make a home detention order despite the contents of an assessment report.(4) A court may make a home detention order only if an assessment report 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.(5) For the purposes of subsection (1) (c):(a) the consent of children below a prescribed age, and(b) the consent of persons suffering a prescribed disability,may be given on their behalf by such other persons as the regulations may determine or may, if the regulations so provide and subject to any prescribed conditions, be dispensed with.(6) A home detention order must not be made if the court considers it likely that the offender will commit any sexual offence or any offence involving violence while the order is in force, even though the offender may have no history of committing offences of that nature.(7) If a court declines to make a home detention order with respect to an offender’s sentence of imprisonment despite an assessment report that states that the offender is a suitable person to serve the sentence by way of home detention, the court must indicate to the offender, and make a record of, its reasons for doing so.
79 Concurrent and consecutive sentences
A home detention order may not be made in respect of a sentence of imprisonment (a new sentence) to be served concurrently or consecutively (or partly concurrently and partly consecutively) with any other sentence of imprisonment the subject of a home detention order if the date on which the new sentence will end is more than 18 months after the date on which it was imposed.