Legislation also sets out eligibility requirements and exclusions within the group of offenders/prisoners to which HD is applicable through explicit criteria determined in provisions in the primary legislation (the Act) or listed in subordinate legislation (Regulations). These legislated eligibility requirements and exclusion criteria are summarised in the tables below, separately for front-end and back-end HD programs. Footnotes to the tables outline additional features set out in jurisdictional policy and procedures documentation.
No evidence was found in the research and practice literature review for greater effectiveness in relation to the sorts of legislatively-mandated general suitability criteria listed below. In fact, a US national guidelines report states that there are no conclusive research studies recommending consistent criteria for offender selection and some review reports have argued for providing flexibility in eligibility requirements, so that availability and take-up rate are not constrained.
Consistency of selection criteria and consensus on the type of offender for which home detention is appropriate have been identified as key factors in UK and Swedish evaluation studies. UK evaluation research concludes that level of assessed offender risk-need factors is the most critical determinant of successful program completion and recidivism, supporting the importance of a strong and effective assessment focus. Consent and capacity to withdraw consent are cited in one UK evaluation study and in good practice documentation (eg, US national guidelines).
Relevant standard guidelines in the Standard Guidelines for Corrections in Australia (2004) include: gaining offender and co-resident consent (s.2.1, Containment, Community Corrections).
Comparison:
Legislation governing front-end HD in all jurisdictions (except SA where HD is a court-ordered option in only very restricted circumstances) provides for general suitability requirements such as the person being a suitable person and/or HD being an appropriate sentence given the circumstances. In addition, NZ legislation explicitly recognises relevant matters in the victim impact statement and Victorian legislation, acknowledging the limited availability of the trial program, includes a location requirement (see below).
Legislation also generally specifies a requirement for the court to have regard to corrective services assessment reports. Offender and co-resident consent is also a legislative eligibility requirement in most jurisdictions (see details below).
The greatest jurisdictional variability relates to whether certain offences automatically make offenders ineligible for front-end HD. In NSW, Victoria, and the ACT, a specified violent, sexual or drug offence within the current conviction preclude HD consideration while in SA, NT and NZ there are no legislatively prescribed offence types that make an individual automatically ineligible. Prior offence history is also taken into account under NSW, Victorian and ACT legislation where previous convictions for certain violent and sexual offences also make an individual ineligible (but not necessarily the same set of offences for current and prior conviction exclusions). Under the ACT Act, an offender cannot reapply for an HD order if there has been a revocation for a breach of conditions of the order.
Jurisdictions also vary in eligibility requirements for back-end programs (see third table below). Queensland does not have legislatively prescribed suitability requirements for HD specifically. In SA, legislation empowers the Minister to determine certain ineligibility criteria. NZ has a general provision requiring the Parole Board to be satisfied that the offender will not pose an undue risk to community safety. Legislated offence exclusions for the back-end program are the same as those applied under the front-end program for Victoria.
|
general suitability |
assessment requirement |
consent requirement |
|
|
NSW |
must be satisfied the offender is a suitable person and that HD is an appropriate sentence in all circumstances |
court must have regard to the assessment report and Probation Officer evidence; may decline to make an order regardless of report content; may make only if report assesses as suitable; must not make if court considers it likely for the offender to commit a sexual or violent offence regardless of prior history |
offender consent required; household residents consent required 1 |
|
Vic |
if satisfied that the offender is a suitable person and that an HD sentence is appropriate in all ircumstances; epartment has given ritten advice of a lace being available n an HD program and t is located close nough to where the ffender will reside o ensure adequate upport and upervision 2 |
an assessment report must be repared; the court must have egard to assessment report, ay decline to make an order espite report content but may ake only if the report onsiders it is suitable, must ot make an order unless atisfied that all household embers over 18 have been onsulted without the offender being present and that their wishes and feelings have been ascertained and duly considered |
offender consent required; all household members over 18 have acknowledged in writing that they understand the order requirements and agree to comply with them, and consent in writing3 |
|
SA |
not prescribed under legislation |
not prescribed under legislation |
not prescribed under legislation |
|
ACT |
must be satisfied the offender is a suitable person and that HD is an appropriate sentence in the circumstances 4 |
court must consider the assessment report and Corrections Officer evidence; may make order only if report assesses as suitable; must not make if considers the offender may commit sexual offence even if no prior history; need not make an order even if assessed suitable |
offender signed undertaking required; household residents written consent required; parent/ guardian of any child residing must also sign the consent for a young person to reside with a home detainee |
|
NT |
if satisfied it is desirable to do so in the circumstances 5 |
court may make order only if it receives a report from the Director stating that: suitable arrangements are available for the offender to reside at the premises or place specified in the report, the premises or place specified is suitable for the purposes of a home detention order, and the making of the home detention order is not likely to inconvenience or put at risk other persons living in those premises or at that place or the community generally |
offender consent required; household resident consent not explicitly required although views of affected community members may be taken into account in preparing the assessment report |
|
NZ |
if satisfied that it would be appropriate taking into account the nature and seriousness of the offence, the circumstances and background of the offender and any relevant matters in the victim impact statement in the case |
Parole Board must request a report |
must be satisfied that the offender has been made aware of and understands the conditions that will apply during home detention and agrees to comply; household occupants understand the conditions and give consent 6 |
|
current offence exclusions |
prior offence history exclusions |
|
|
NSW |
murder, attempted murder, manslaughter; sexual assault or sexual offences involving children; armed robbery; any offence involving use of a firearm; assault occasioning actual bodily harm or any more serious assault; stalking or intimidation with intention of causing fear offence; domestic violence offence against any person likely to reside with or continue or resume relationship with; drug misuse and trafficking offences; prescribed offences (currently drug offences involving commercial quantities) |
murder, attempted murder, manslaughter, sexual assault, sexual offence against a child; stalking or intimidation with intention of causing fear offence; domestic violence offence against any person likely to reside with or continue or resume relationship with; prescribed offence; subject to Apprehended Violence Order within past 5 years for protection of any person likely to reside with or continue or resume relationship with |
|
Vic |
Sentencing Act Schedule 1 clause 1-4 serious offences, ie, sexual offences, violent offences, drug offences; offence that the court considers is committed in circumstances which involve behaviour of a sexual nature; offence involved use of firearm or prohibited weapon; breach of family violence intervention order; stalking offence |
Sentencing Act Schedule 1 clause 1-4 serious offences as described under current offence exclusions |
|
SA |
not prescribed under legislation |
not prescribed under legislation (but policy requirement for co-residents to sign a Home Detention Resident Agreement) |
|
ACT |
murder or manslaughter, grievous bodily harm, assault, stalking, sexual offences, armed robbery, aggravated burglary, other Crimes Act offence involving a weapon, domestic violence, serious drug offence, periodic detention or remand offence, prescribed offence |
murder, manslaughter, sexual assault, sexual offence involving a child; stalking or domestic violence offence within last 10 years against a person likely to live in same household; prescribed offences; previous HD order revoked for breach |
|
NT |
not prescribed under legislation |
not prescribed under legislation |
|
NZ 7 |
not prescribed under legislation |
not prescribed under legislation |
|
general suitability |
assessment requirement |
consent requirement |
|
|
Vic |
as for front-end HD |
as for front-end HD |
as for front-end HD |
|
Qld |
not prescribed under legislation 8 |
not prescribed under legislation 9 |
not prescribed under legislation 9 |
|
SA |
Chief Executive Officer has absolute discretion to release a prisoner on HD, subject to eligibility exclusions determined by the Minister 10 |
not prescribed under legislation |
not prescribed under legislation |
|
NZ |
Parole Board must be satisfied that the offender will not pose an undue risk to the safety of the community or any person |
Parole Board must request a report 11 |
Parole Board must be satisfied that the offender has been made aware of and understands the conditions that will apply during home detention and agrees to comply; household occupants understand the conditions and give consent |
|
current offence exclusions |
prior offence history exclusions |
|
|
Vic |
as for front-end HD above |
as for front-end HD above |
|
Qld |
not prescribed under legislation |
not prescribed under legislation |
|
SA |
not explicitly prescribed under legislation, but Act empowers Minister to determine, without limitation, exclusions for a class of offences or other class of prisoners; current Ministerial exclusions are: sentenced for homicide, offence of a sexual nature, or a Commonwealth terrorist offence; sentenced for a breach of bond or had parole cancelled for a homicide, sexual or terrorist offence |
not explicitly prescribed under legislation, but Act empowers Minister to determine without limitation exclusions for a class of offences or other class of prisoners; current Ministerial exclusions are: sentenced for an offence of homicide or of a sexual nature or a Commonwealth terrorist offence; sentenced for a breach of bond or had parole cancelled for a homicide, sexual or terrorist offence |
|
NZ 12 |
not prescribed under legislation |
not prescribed under legislation |
1 NSW: in more serious cases of abuse risk to a child under 18 where the Department of Community Services is involved in the assessment, consent of the Director-General of that department is required.
2 Vic: given the trial program is only operational in the Melbourne metropolitan area, policy states offenders are ineligible if intended residence is outside of 40 kilometre radius of the central business district (25 kilometres prior to January 2006); assessment of suitability will take into consideration the number of other detainees on the program and the available staffing resources; draft Director’s Instructions specify that, during the assessment process, the assessing officer must identify and exclude any offender or prisoner who presents a risk of harm to themselves, co-residents, their family or any member of the community.
3 Vic: consent can be withdrawn at any time in which instance the offender would be required to leave the residence immediately (if suitable alternative accommodation is not obtained, the offender will be transferred to prison); co-resident consent is regularly reassessed during the term of the order.
4 ACT policy documentation cites the following as positive factors that may increase the likelihood of suitability: a history of good behaviour during committal, imprisonment or remand; a clean record of mandatory (and voluntary) drug tests during supervision, committal, imprisonment or remand (bearing in mind that a young person cannot be readily drug tested prior to receiving a HD order); a history of work or training or other constructive use of time during committal, imprisonment or remand; confirmation of offer of employment on release will tend to count in the applicant’s favour, though assessors should be wary of vague promises from relatives; a clear plan of how the applicant intends to find appropriate work, education or vocational training; a clear sense of how the pplicant intends to fill his or her spare time; an awareness of the likely pressures of being n a HD order (eg, peer pressure, boredom, tensions with family, etc.) and some idea of ow they are likely to cope; and support from family or partners. Negative factors that can ecrease the likelihood of suitability are cited as: a chaotic lifestyle (mentioned articularly in relation to juvenile applicants, though they are not ruled out), taking into onsideration that the Case Plan should be assisting and supporting the Home Detainee/family to develop social skills and positive personal direction; applicants who eem to be in an active phase of their criminal careers; a chronic pattern of drug-related rime; the applicant states that they will continue to take drugs, or will resume taking rugs after release; a recent history of failed mandatory drugs test (bearing in mind that a oung person cannot be readily drug tested prior to receiving a HD order); a history of omestic violence at the proposed residence; and a history of breach of previous ommunity sentence or failure to surrender to bail, especially if this is related to the urrent sentence.
5 NT policy documents state that a client may be considered unsuitable for home detention in the following circumstances: Community or family members would be placed at risk, the environment hampers access to the client, eg, dangerous dogs and alternative arrangements cannot be made, client’s dependence on alcohol or drugs is such that he requires medical detoxification, client has a history of non-compliance with communitybased orders and their attitude towards such orders remains unchanged, client has no place of abode, client has psychiatric or psychological problems that affect their understanding of an order, those who reside with the client do not consent to the making of an HD order, client’s employer does not consent to the required checking of the client, client does not agree to wear electronic device(s), client does not agree to remove firearms from the residence.
6 NZ: relevant occupants’ consent should be gained without the offender being present - this may not be possible if the commencement of the sentence of imprisonment has been deferred or if the offender is on home leave at the time and therefore Probation Officer should be alert for any signs of the offender pressuring the relevant occupant to give consent and note any such instances in the assessment report.
7 NZ: as of legislative changes introduced in 2002 - previous eligibility restrictions on serious violent offences.
8 Qld: although requirements are not legislative prescribed, Community Corrections Boards are bound by Ministerial Guidelines, which emphasise community safety. As of 2000, prisoners are eligible to apply for post-prison community-based release and the Board determines the nature of release order if granted – home detention, return to work, or parole. Policy documents state that Community Corrections Boards in deciding whether a prisoner will be released on HD are to consider: previous criminal history, facts of the current offence/s, including the prisoner's attitude, Judge's sentencing remarks, prisoner's behaviour, what the prisoner has done to ensure that he/she won't re-offend, (eg, programs, training), suitability of the proposed accommodation.
9 Qld: the offender and co-resident are required to provide consent for any post-prison community-based release order, which includes home detention consent (during the electronic monitoring trial all residents were required to provide written consent).
10 SA: Policy documents describe eligibility criteria as: Ministerial criteria under s37A of Act: not been sentenced for an offence of homicide or of a sexual nature or a Commonwealth terrorist offence; not sentenced for a breach of bond or had parole cancelled for a homicide, sexual or terrorist offence, not have breached a Home Detention order during current sentence; have or be eligible for a low security rating; be able to nominate an appropriate residence with telephone connected (may include approved hostels, special arrangements will be made for home detainees released to remote Aboriginal communities); if required for further court appearance or for a Visiting Tribunal appearance, to wait until bail has been granted or the matter has been dealt with; if a federal offender and the release is subject to the signing of a bond or parole paper, have signed such bond or parole; not be required for extradition or deportation; not be in prison for non-payment of pecuniary sum; other eligibility criteria specified as being considered are: the applicant must not have a positive result to urinalysis in the 3 months preceding application, incidents in which the prisoner has been involved; the submission (addressing issues such as what case plan goals have been achieved, steps taken to reduce likelihood of recurrence if a substance abuse history, evidence of effective corrective action if a history of anger or violence, etc) with application if order longer than 6 months is being sought, any court sentencing comments, rights and concerns of any victims, risks to community safety if released, behaviour of offender in prison, any other matter or information believed to enable a properly informed decision about release.
11 NZ: Board may not release an offender to Home Detention without first obtaining and considering a report from a Probation Officer as to the offender’s suitability.
12 NZ: as of legislative changes introduced in 2002 - previously eligibility restrictions on serious violent offences.