How serious is Breach of Suspended Sentence? What’s the maximum penalty and which Court hears the charge?
Breach of Suspended Sentence is a very serious offence as it carries a very high legal burden to stop you going to gaol. Jurisdiction over this type of criminal charge is given to the Court that issued the original sentence. The maximum penalty for the offence of Breach of Suspended Sentence depends on the original penalty imposed for the original offence. The Court may restore the original sentence, restore part of the original sentence, or part the suspended sentence then require the defendant to serve it. In some cases, the Court may also further extend the suspension period to a date not later than 12 months from the date of the order.
The legislation on Breach of Suspended Sentence
Section 83AR of the Sentencing Act 1991 is the law for Breach of Suspended Sentence and is as follows:
Powers of Court on Finding of Guilt for Contravention of Order as to Suspended Sentence
(1) If the court finds a person guilty of an offence under section 83AB in respect of a suspended sentence order the court must (in addition to sentencing the offender for the offence)-
(a) restore the sentence or part sentence held in suspense and order the offender to serve it; or
(b) restore part of the sentence or part sentence held in suspense and order the offender to serve it; or
(c) in the case of a wholly suspended sentence, extend the period of the order suspending the sentence to a date not later than 12 months after the date of the order under this subsection; or
(d) make no order with respect to the suspended sentence.
(2) Despite anything to the contrary in subsection (1), if the court finds the offender guilty as mentioned in that subsection it must exercise the power referred to in subsection (1)(a) unless it is of the opinion that it would be unjust to do so because exceptional circumstances have arisen since the order suspending the sentence was made.
(3) If a court orders an offender to serve a term of imprisonment that had been held in suspense, the term must be served-
(a) immediately; and
(b) unless the court otherwise orders, cumulatively on any other term of imprisonment previously imposed on the offender by that or any other court.
(4) Despite anything to the contrary in this section, if, in the case of an offender who is under 21 years of age at the time the finding is made under subsection (1), the court restores the whole or part of the sentence or part sentence held in suspense, it may order the offender to serve it as detention in a youth justice centre or youth residential centre.
(5) Section 32 applies to an order under subsection (4) as if it were a youth justice centre order or a youth residential centre order and as if the reference in section 32(1) to a pre-sentence report were a reference to a pre-sentence report that deals with the matter of the contravention of the suspended sentence.
(6) If a court makes no order with respect to a suspended sentence, the proper officer of the court must record that fact in the records of the court.
(7) If it is not possible for the court to deal with the offender immediately, then the Bail Act 1977 applies for the purposes of granting bail with any necessary adaptations and in particular with the modification that a reference to a person accused of an offence or an accused person is to be construed as a reference to the offender.
Pleading guilty or not guilty to Breach of Suspended Sentence in a Melbourne Court
Deciding on whether you should plead guilty or not to the charge of Breach of Suspended Sentence has important implications for you and should therefore be discussed with a criminal defence solicitor. If you are found guilty, you may have to face severe consequences.
Elements of the charge of a Breach of Suspended Sentence case in a Melbourne Court
First, the Prosecution must show that the defendant is under a lawfully suspended sentence. It must also prove before the Court that the defendant has been found guilty of an offence punishable by imprisonment, and that the said offence was committed during the suspension period. The proceeding should also be commenced within 3 years of the breaching offence.
Defending the charge of Breach of Suspended Sentence in a Melbourne Court
Defending the charge of Breach of Suspended Sentence often involves a factual dispute. A defence lawyer will investigate whether all reported facts of the case are accurate and determine whether the elements of this offence are truly satisfied under the circumstances. If inconsistencies are found, this would form the basis of a defence in Court.
For more information on Breach of Suspended Sentence, you may visit the Australian Defence Lawyers Association site (click here) and also the Doogue & O’Brien Melbourne Criminal Lawyers site (here).
Doogue & O’Brien Melbourne can provide you more detail about this
Our Head Office is at 5/221 Queen Street, Melbourne
Phone (03) 9670 5111 (24 hrs if you are in a Police Station)
This article was written on Aug. 13, 2012 and relates to the law that it stands at this time.