Can You Get Home Detention Instead of Prison in South Australia?

If you are facing a possible prison sentence, you may be concerned about what will happen to your family, employment and future. In some cases, South Australian courts can order a sentence of imprisonment to be served on home detention.

However, home detention is not available in every case. The court must consider whether the law permits it, whether you are suitable and whether it should exercise its discretion to make the order.

Understanding these requirements early can help you prepare properly for sentencing.

What is a home detention sentence?

Home detention is a custodial sentence served at a residence specified by the court, under strict supervision and conditions.

You must generally remain at that residence, wear an electronic monitoring device and comply with the lawful directions of a home detention officer. Leaving home is permitted only within the rules governing the order, for example for approved employment, approved treatment or urgent medical or dental care.

Home detention significantly restricts your freedom. It does not allow you to continue your usual routine simply because you are living at home.

Who can receive home detention?

Under section 71 of the Sentencing Act 2017 (SA), a court may make a home detention order where it has imposed imprisonment, considers that the sentence should not be suspended and considers the person suitable for home detention.

The other statutory requirements must also be met. These include restrictions relating to the offence, previous sentences and any other imprisonment being served.

The proposed residence must be suitable and available, and the court must be satisfied that you will be properly maintained and cared for there. An order also should not be made unless the court is satisfied that adequate resources exist to monitor you properly while on home detention.

Being eligible does not mean you will receive home detention. The court must still decide whether it is appropriate in your circumstances. Community safety is the paramount consideration, and the Act prohibits an order if the court considers it would, or may, affect public confidence in the administration of justice.

Which offences have additional restrictions?

Home detention is unavailable for some offences and restricted for others.

The legislation excludes murder, certain related offences, treason and offences involving a terrorist act. Other exclusions can apply where legislation expressly prohibits the reduction, mitigation or substitution of a penalty.

For people sentenced as adults, further restrictions include:

• Prescribed designated offences where the non-parole period is two years or more.
• Serious sexual offences, unless a specific statutory exception applies.
• Offences falling within the statutory definitions of serious and organised crime offences or specified offences against police.
• Designated offences where certain sentences for another designated offence were imposed during the five years before the current offence.

These are defined legal categories. The precise charge, applicable legislation and sentencing history need to be checked. A charge being described as an “indictable offence” does not, by itself, answer whether home detention is available.

Can home detention be ordered for a sexual offence?

The rules for serious sexual offences are particularly restrictive.

One exception concerns specified offences committed in “prescribed circumstances”. Among other requirements, the person must have been 20 or younger when the offence occurred and must not have held a position of authority over the victim. The circumstances of the offending, including the victim’s age and the age difference, must also make home detention appropriate.

A separate “special reasons” exception is narrowly defined. It requires advanced age or permanent infirmity to mean that the person no longer presents an appreciable risk to community safety, together with a finding that the community’s interests would be better served by home detention.

These exceptions are not general hardship provisions. Employment, family support or progress in rehabilitation cannot simply replace the statutory requirements. Even where an exception applies, the court must still assess suitability and decide whether to make an order.

What does the court consider when assessing suitability?

The court considers the proposed arrangement and the circumstances of the case. Relevant matters can include:

• The seriousness of the offending and the risk of further offending.
• Criminal history and compliance with previous court orders.
• Rehabilitation, treatment and prospects of complying with strict supervision.
• The suitability of the proposed address.
• The likely impact on any victim, your spouse or domestic partner and anyone living at the address, which the court must consider.
• Any pre-sentence report the court has ordered, which it must also consider, and other relevant evidence.

A stable address and supportive household may help, but they do not resolve the assessment on their own. The court must consider whether home detention is a safe and appropriate sentencing outcome.

Can rehabilitation, employment and family responsibilities help?

These matters can be relevant to sentencing and to assessing whether home detention is appropriate. Their significance depends on the offence, the applicable restrictions and the evidence presented.

Useful material may include treatment reports, evidence of participation in rehabilitation programs, employment details and information about genuine caring responsibilities.

For example, employment evidence can explain your hours, workplace and proposed arrangements. However, permission to leave home for work is not automatic: the employment arrangements must be approved by your home detention officer.

Similarly, having children or other dependants does not create an entitlement to home detention. The court must weigh the relevant personal circumstances alongside community safety, the seriousness of the offending and the other sentencing considerations.

How is home detention different from a suspended sentence?

With home detention, you serve a custodial sentence at the specified residence under strict restrictions, supervision and electronic monitoring.

With a suspended sentence, the court imposes imprisonment but suspends its operation on condition that you enter into and comply with a bond. Breaching the bond can result in the suspended imprisonment being brought into effect.

Both options have legal restrictions. Home detention is not automatically available whenever a suspended sentence is refused.

What happens if you breach home detention?

A breach can have serious consequences. The court must revoke the order and require the balance of the sentence to be served in prison, although it may decide not to if the breach was trivial or there are proper grounds to excuse it. Failing to comply with a condition can also constitute a separate criminal offence.

It is essential to understand the conditions and obtain any required approval before leaving the residence or changing arrangements.

Get advice before sentencing

If you are facing sentencing for a criminal or serious traffic offence, seek advice early about the options available.

Our criminal and traffic law team can assess whether home detention is legally available, identify the evidence needed to support your position and prepare submissions addressing your circumstances and the court’s sentencing responsibilities.

Contact us to discuss your charges and sentencing options.

This page provides general information about South Australian law. Advice about your circumstances requires consideration of the charges, facts and applicable legislation.