42AJBreach of condition of home detention order where offender found guilty of offence

### 42AJ Breach of condition of home detention order where offender found guilty of offence > [*\[Section 42AJ Inserted by No. 51 of 2017, s. 14, Applied:14 Dec 2018\]*](/view/html/inforce/2018-12-14/act-2017-051#GS14@EN) > > > (1)  If a court finds an offender guilty of an offence (in this section called the "**new offence**") committed during the operational period of a home detention order in relation to the offender, an authorised person – > > > > > > (a) may make an oral application to the court, while the offender is before the court in relation to the new offence, for the court to deal with the application under this section; and > > > > > > > (b) is to provide the offender in writing with the grounds for the oral application, if directed to do so by the court. > > > (2)  If the court that finds an offender guilty of a new offence committed during the operational period of a home detention order is unable to immediately deal with an application to the court under [subsection (1)](#GS42AJ@Gs1@EN) , the court may adjourn the proceedings and either grant the offender bail or remand the offender in custody. > > > (3)  If an application under [subsection (1)](#GS42AJ@Gs1@EN) is made to a court that is not the court that imposed the home detention order on the offender, 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. > > > (4)  The court to which an application is made under [subsection (1)](#GS42AJ@Gs1@EN) or, if the application is adjourned under [subsection (3)](#GS42AJ@Gs3@EN) to another court, that other court, must, if the new offence of which the offender to whom the order relates or related has been found guilty is not an offence that is punishable by imprisonment – > > > > > > (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) 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 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 > > > > > > > (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)  A court to which an application in relation to an offender is made under [subsection (1)](#GS42AJ@Gs1@EN) or, if the application is adjourned under [subsection (3)](#GS42AJ@Gs3@EN) to another court, that other court, must, if the new offence of which the offender has been found guilty is an offence that is punishable by imprisonment – > > > > > > (a) cancel the home detention order, if it is still in force, and, 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 > > > > > > > (b) whether or not the home detention order is still in force, impose on the offender any sentence (other than a home detention order) that the court could have imposed on the offender had it just found the offender guilty of the offence, or offences, in respect of which the home detention order was made. > > > (6)  Despite [subsection (5)](#GS42AJ@Gs5@EN) , a court to which an application is made under [subsection (1)](#GS42AJ@Gs1@EN) or adjourned under [subsection (3)](#GS42AJ@Gs3@EN) must, if the new offence of which the offender has been found guilty is an offence that is punishable by imprisonment and the court is satisfied that there are exceptional circumstances – > > > > > > (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 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) 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 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. > > > (7)  In determining how to deal with an offender after the cancellation by it 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.