42AIBreach of condition of home detention orders

### 42AI Breach of condition of home detention orders > [*\[Section 42AI Inserted by No. 51 of 2017, s. 14, Applied:14 Dec 2018\]*](/view/html/inforce/2018-12-14/act-2017-051#GS14@EN) > > > (1)  If it appears to an authorised person that, during the operational period of a home detention order in relation to an offender, the offender has breached a condition of the order, the authorised person may, during or after that period, apply to the court that made the order for the court to deal with the application under this section. > > > (2)  If the offender to whom an application relates is not before the court at the time at which the application is made, a copy of the application and notification of the time and place of the hearing of the application is to be served on the offender at least 7 days before the hearing. > > > (2A)  Despite subsection (2) and if – > > > > > > (a) the applicant and offender have consented to it, in writing; or > > > > > > > (b) the court considers it appropriate to do so in the circumstances – > > > > the court to which the application is made may hear and determine the application at any time before the expiration of the 7-day period following service as required by that subsection or without such service having been effected. > > > (2B)  [*\[Section 42AI Subsection (2B) inserted by No. 31 of 2023, s. 6, Applied:01 Jul 2024\]*](/view/html/inforce/2024-07-01/act-2023-031#GS6@EN) Despite [subsection (1)](#GS42AI@Gs1@EN) , an applicant may make an oral application under this section, in respect of a home detention order, to a court of petty sessions, the Supreme Court or the Court of Criminal Appeal if – > > > > > > (a) the offender, to whom the home detention order relates, is appearing before the court; and > > > > > > > (b) the court considers the oral application appropriate in the circumstances. > > > (2C)  [*\[Section 42AI Subsection (2C) inserted by No. 31 of 2023, s. 6, Applied:01 Jul 2024\]*](/view/html/inforce/2024-07-01/act-2023-031#GS6@EN) After receiving an oral application under [subsection (2B)](#GS42AI@Gs2B@EN) , the court may direct the applicant to provide the other parties to the application with the grounds, for the oral application, in writing. > > > (2D)  [*\[Section 42AI Subsection (2D) inserted by No. 31 of 2023, s. 6, Applied:01 Jul 2024\]*](/view/html/inforce/2024-07-01/act-2023-031#GS6@EN) If an application is made, in accordance with [subsection (2B)](#GS42AI@Gs2B@EN) , to a court that is not the court that imposed the home detention order, the court may – > > > > > > (a) deal with the application under this section; or > > > > > > > (b) adjourn the proceedings to the court that made the order and either grant the offender bail or remand the offender in custody. > > > (2E)  [*\[Section 42AI Subsection (2E) inserted by No. 31 of 2023, s. 6, Applied:01 Jul 2024\]*](/view/html/inforce/2024-07-01/act-2023-031#GS6@EN) If proceedings for an application under this section are adjourned to a court under [subsection (2D)(b)](#GS42AI@Gs2D@Hpb@EN) , a reference in this section to the court to which the application is made is taken, on and after the adjournment, to be a reference to the court to where the proceedings were so adjourned. > > > (3)  If the offender to whom the application relates is before the court and the court is unable to immediately deal with the application, the court may adjourn the proceedings and either grant the offender bail or remand the offender in custody. > > > (4)  The court to which an application is made under [subsection (1)](#GS42AI@Gs1@EN) must, if the court finds that the offender has, during the operational period of the order, breached a condition of a home detention order in relation to the offender, other than a condition referred to in [section 42AD(1)(a)](#GS42AD@Gs1@Hpa@EN)  – > > > > > > (a) confirm the home detention order, if it is still in force; or > > > > > > > (b) vary the home detention order, if it is still in force, by doing any one or more of the following: > > > > > > > > > > (i) adding a special condition to the order; > > > > > > > > > > > (ii) removing or altering a special condition of the order; > > > > > > > > > > > (iii) extending, subject to [section 42AF](#GS42AF@EN) *,* the operational period of the order; > > > > > > > > > > > (iv) altering which premises are to be the home detention premises in relation to the order; > > > > > > > > > > > (v) altering the times, specified in the order, of the days of the week specified in the order, or alter the days of the week specified in the order, or both, at which the offender must be at the home detention premises; > > > > > > > > > > > (vi) specifying or altering the period or periods during which the offender is required, under [section 42AD(1)(g)](#GS42AD@Gs1@Hpg@EN) , to submit to electronic monitoring, or revoking a specification under [section 42AD(2)](#GS42AD@Gs2@EN) in a home detention order that an offender is not required to submit to electronic monitoring; or > > > > > > > (c) if the home detention order is still in force – > > > > > > > > > > (i) cancel the home detention order; and > > > > > > > > > > > (ii) deal with the offender, in respect of the offence or offences in relation to which the order was made, in any manner in which the court could deal with the offender had the court just found the offender guilty of that offence or those offences; or > > > > > > > (d) if the home detention order is still in force – > > > > > > > > > > (i) cancel the home detention order; and > > > > > > > > > > > (ii) if it considers it appropriate, cancel any other order in respect of the offence or offences in relation to which the home detention order was made; and > > > > > > > > > > > (iii) whether or not it cancels any other order, deal with the offender, in respect of the offence or offences in relation to which the home detention order was made, in any manner in which the court could deal with the offender had the court just found the offender guilty of that offence or those offences; or > > > > > > > (e) if the home detention order is not still in force – > > > > > > > > > > (i) cancel, if it considers it appropriate, any other order in respect of the offence or offences in relation to which the home detention order was made; and > > > > > > > > > > > (ii) whether or not it cancels any other order, deal with the offender, in respect of the offence or offences in relation to which the home detention order was made, in any manner in which the court could deal with the offender had it just found the offender guilty of that offence or those offences. > > > (5)  In determining how to deal with an offender after the cancellation by the court of a home detention order or any other order under this section, the court must take into account the extent to which the offender had complied with the home detention order, or other order, respectively, before its cancellation or while it was still in force. > > > (6)  If – > > > > > > (a) an application is made under [subsection (1)](#GS42AI@Gs1@EN) in relation to an offender in respect of whom a home detention order is or was in force; and > > > > > > > (b) a court has found the offender guilty of an offence; and > > > > > > > (c) the offender has, by committing the offence, breached a condition of the home detention order referred to in [section 42AD(1)(a)](#GS42AD@Gs1@Hpa@EN) ; and > > > > > > > (d) an application was not made under [section 42AJ](#GS42AJ@EN) in relation to the offence – > > > > the court to which the application is made under [subsection (1)](#GS42AI@Gs1@EN) must deal with the application as if the application were an application made to the court under [section 42AJ](#GS42AJ@EN) and the court were the court that found the offender guilty of the offence.