Subdiv 3Conditional release and home detention

Subdivision 3—Conditional release and home detention 41—Application and interpretation of Subdivision (1) This Subdivision does not apply to a youth— (a) who has been dealt with as an adult and is serving a sentence or part of a sentence of imprisonment in a training centre; or (b) to whom Division 2 applies; or (c) who is serving a sentence of detention of less than 2 months. (2) In this Subdivision, if a reference to the Training Centre Review Board, or the Board, is made in relation to a youth who is a recidivist young offender or a terror suspect— (a) the reference will be taken to be a reference to the Youth Parole Board; and (b) in carrying out any function assigned to the Training Centre Review Board under this Subdivision, the Board must be constituted as the Youth Parole Board in accordance with section 39(2)(b). 41A—Conditional release from detention (1) A youth who is serving a period of detention in a training centre may be released from detention by the Training Centre Review Board in accordance with this Subdivision. (2) Subject to subsection (3a), the provisions set out below apply to the release from detention of a youth other than a recidivist young offender: (a) the youth must have completed at least two thirds of the period of detention in a training centre to which he or she has been sentenced; (ab) an application for release of the youth from detention may be determined by the Training Centre Review Board no earlier than 7 days before completion by the youth of at least two thirds of the period of detention in a training centre to which he or she has been sentenced; (b) in determining whether the youth should be released from detention, the Training Centre Review Board— (i) must be satisfied that— (A) the behaviour of the youth during the period of detention has been satisfactory; and (B) there is no undue risk that the youth would, if released under this Subdivision, re‑offend; (ii) if, in relation to an offence for which the youth was detained, there is a registered victim—must take into consideration the impact that the release of the youth is likely to have on the registered victim and the registered victim's family; (c) the release of the youth must be subject to the following conditions: (i) a condition that he or she not commit any offence; (ii) a condition that he or she be under the supervision of an officer of the Department and that the youth obey the directions of that officer; (iia) a condition prohibiting the youth from possessing a firearm or ammunition (both within the meaning of the Firearms Act 2015) or any part of a firearm; (iib) a condition requiring the youth to submit to such tests (including testing without notice) for gunshot residue as may be reasonably required by an officer of the Department who is supervising the youth; (iii) any other condition that the Board thinks fit; (d) a decision of the majority of the Board is a decision of the Board. (3) Subject to subsection (3a), the provisions set out below apply to the release from detention of a youth who is a recidivist young offender: (a) the recidivist young offender must have completed at least four fifths of the period of detention in a training centre to which he or she has been sentenced; (ab) an application for the release of the recidivist young offender may be determined by the Youth Parole Board no earlier than 7 days before completion by the offender of at least four fifths of the period of detention in a training centre to which he or she has been sentenced; (b) in determining whether the recidivist young offender should be released from detention— (i) despite any other provision of this Act, the paramount consideration of the Youth Parole Board must be the safety of the community; and (ii) the Youth Parole Board must also take the following matters into consideration: (A) the likelihood of the recidivist young offender re‑offending if released from detention; (B) the likelihood of the recidivist young offender complying with the conditions of release; (C) if, in relation to an offence for which the recidivist young offender was sentenced to a period of detention in a training centre, there is a registered victim—the impact that the release of the recidivist young offender is likely to have on the registered victim and the registered victim's family; (D) the behaviour of the recidivist young offender while in detention; (E) the behaviour of the recidivist young offender during any previous release from detention; (F) any reports provided to the Board as required by the Board; (G) the probable circumstances of the recidivist young offender after release from detention; (H) any other matters that the Board thinks are relevant; (c) the release of the recidivist young offender must be subject to the following conditions: (i) a condition that he or she not commit any offence; (ii) a condition that he or she be under the supervision of an officer of the Department and that he or she obey the directions of that officer; (iia) a condition prohibiting the youth from possessing a firearm or ammunition (both within the meaning of the Firearms Act 1977) or any part of a firearm; (iib) a condition requiring the youth to submit to such tests (including testing without notice) for gunshot residue as may be reasonably required by an officer of the Department who is supervising the youth; (iii) any other condition that the Board thinks fit; (d) a decision of the majority of the Board is a decision of the Board. (3a) The following subsections do not apply in relation to release by the Board of a youth on home detention under section 41B: (a) subsection (2)(a); (b) subsection (2)(ab); (c) subsection (3)(a); (d) subsection (3)(ab). (4) A condition of release of a youth under this section may, for any proper reason, be varied or revoked at any time as follows: (a) in the case of a condition under subsection (2)(c)—by the Training Centre Review Board; (b) in the case of a condition under subsection (3)(c)—by the Youth Parole Board. (4a) The Board may only vary or revoke the conditions imposed by subsection (2)(c)(iia) and (iib), or subsection (3)(c)(iia) and (iib), on the release from detention of a youth if the youth satisfies the Board that— (a) there are cogent reasons to do so; and (b) the possession of a firearm, ammunition or part of a firearm by the youth does not represent an undue risk to the safety of the public. (5) If, in relation to an offence for which a youth was detained, there is a registered victim and the release of the youth under this section is subject to a condition that relates to the victim or the victim's family, the Training Centre Review Board must notify the victim of the terms of the condition. (6) However, the Training Centre Review Board is not required to notify the registered victim if— (a) the victim has indicated to the Board that he or she does not wish to be so notified; or (b) the Board is satisfied that, in the circumstances of the case, it is not appropriate to so notify the victim. (7) A decision of the Training Centre Review Board to notify or not notify a victim of the terms of any such condition is final and is not reviewable by a court. (8) Subject to this Subdivision, the conditions on which a youth is released from a training centre under this Subdivision are binding on the youth for the unexpired period of the detention order. 41B—Release on condition of home detention (1) The Training Centre Review Board may, on the application of the Chief Executive or on its own initiative, release a youth on condition that the youth remain at a residence specified by the Board for the remainder of the unexpired balance of the term of detention or such shorter period as the Board may specify and, if a youth is released on such a condition, the provisions of Division 2A (except for subsections (4), (5) and (6) of section 37C and section 37D(1)) apply as if— (a) the order of the Board were a sentence of home detention imposed by the Court; and (b) a reference to the Court were a reference to the Board. (2) The Training Centre Review Board— (a) must not release a youth on home detention unless it is satisfied that accommodation is available at the residence it proposes to specify; and (b) should not release a youth on home detention if it is not satisfied that adequate resources exist for the proper monitoring of the youth while on home detention by a home detention officer. 41BA—Suspension of conditional release if youth is or becomes a terror suspect (1) If a youth becomes a terror suspect while released subject to conditions under this Division or a terror suspect is, while released subject to conditions under this Division, the subject of a certificate issued by the Commissioner of Police under subsection (9)— (a) the designated member must, on becoming aware of that fact, issue a warrant for the arrest of the youth; and (b) on the warrant being so issued, the youth's entitlement to conditional release from detention is suspended until a determination is made under this section. (2) A warrant issued under this section authorises the detention of the youth in custody pending the making of a determination under this section. (3) The designated member must, as soon as practicable, determine whether there are special circumstances justifying the youth's continued release from detention. (4) A terrorism intelligence authority is entitled to be heard by the designated member in relation to the making of a determination under this section. (5) The designated member is not required to provide to the youth any grounds or reasons for a determination under this section. (6) Information forming the basis for the making of a determination under this section must not be disclosed to any person (except to the Attorney‑General, a court or a person to whom a terrorism intelligence authority authorises its disclosure) if, at the time at which the question of disclosure is to be decided, the information is properly classified by the terrorism intelligence authority as terrorism intelligence under section 74B of the Police Act 1998 (whether or not the information was so classified at the time at which the determination under this section was made). (7) If the designated member determines that there are special circumstances justifying the youth's continued release from detention, the suspension under this section is lifted and, on release from custody under this section, the youth will continue to be released subject to the conditions for the balance of the unexpired period of the detention order. (8) If the designated member determines that there are not special circumstances justifying the youth's continued release from detention, the youth— (a) must be returned to detention under the original order; and (b) is liable to serve the balance of the sentence unexpired as at the date on which the youth was taken back into custody under this section; and (c) will be taken to have been serving that balance of sentence during any period spent in custody pending the making of a determination by the designated member under this section. (9) The Commissioner of Police may issue a certificate for the purposes of this section in relation to a terror suspect who has been released from detention subject to conditions under this Division certifying that the Commissioner is satisfied that significant new information has come to light in relation to the youth that should be considered by the designated member. (10) In any proceedings, a document that appears to be a certificate issued by the Commissioner of Police under this section may be admitted in evidence and is proof, in the absence of proof to the contrary, of the matter so certified. 41C—What happens if youth fails to observe condition of release (1) If a police officer or the Minister considers that a youth has failed to observe any condition imposed by the Training Centre Review Board under this Subdivision, the police officer or the Minister (as the case may be) (the applicant) may apply to the Board for an order that the youth be returned to a training centre. (2) Subject to subsection (3), the applicant must cause a copy of an application under subsection (1) to be served on the youth and a guardian of the youth, and the application must be endorsed with a notice of the place, date and time for the hearing of the application. (3) If the applicant believes on reasonable grounds that, if served with any such application, the youth would be likely to abscond, the applicant may apply to the Youth Court— (a) to issue a warrant for the apprehension of the youth; and (b) to dispense with service of the application. (4) The Court will not grant an application under subsection (3) unless satisfied, by information given on oath, that there are reasonable grounds to believe that, if served with the application, the youth would be likely to abscond. (5) If— (a) a youth on whom an application is to be served cannot be found; or (b) a youth, having been served with the application, fails to attend before the Training Centre Review Board on an application, a member of the Board may apply to the Youth Court for a warrant for the apprehension of the youth or may, with the concurrence of a second member of the Board, issue such a warrant. (6) The Court must, on application under subsection (5), issue a warrant for the apprehension of the youth unless it is apparent, on the face of the application, that no reasonable grounds exist for the issue of the warrant. (7) A warrant issued under this section authorises the apprehension of the youth referred to in the warrant by a police officer or an officer of the Department authorised for the purpose. (8) A youth who has been apprehended on a warrant issued under this section must be brought before the Training Centre Review Board as soon as reasonably practicable, and may be detained by the Chief Executive in any place (other than a prison) approved by the Minister until brought before the Board. (9) The Training Centre Review Board may order that a youth who has been brought before the Board under this section be returned to detention under the original order if satisfied that the youth has contravened a condition. (10) If a youth is returned to detention under the original order— (a) he or she is liable to serve the balance of the sentence unexpired as at the date on which the breach of condition occurred; and (b) the youth will be taken to have been serving that balance of sentence during any period spent in custody pending determination of the proceedings for breach of condition. (11) However, instead of exercising its powers under subsection (9), the Training Centre Review Board may impose a further condition on the youth's release requiring the youth to perform a specified number of hours of community service if the Board is of the opinion that the breach of condition was not so serious as to warrant returning the youth to detention.