Have you been charged with breaching a suspended sentence?
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What Does It Mean to Breach a Suspended Sentence?
Breaching a suspended sentence is a serious (indictable) criminal offence in Victoria under Section 83AB of the Sentencing Act 1991 (SA). It occurs when a person commits a breach of an offence punishable by imprisonment during the operational period of a suspended sentence.
Suspended sentences are no longer imposed for offences in Victoria, as they were repealed in 2013. However, breaches can still occur if the suspended sentence was imposed before this repeal or in cases involving Commonwealth offences with recognisance release orders (RROs).
Related breach offences include:
- Breaching bail conditions.
- Breaching community corrections orders (CCO).
- Breaching bonds.
- Breaching sex offender registration reporting requirements.
What does the prosecution have to prove?
To determine whether you have been charged with breaching a suspended sentence, the prosecution must prove beyond reasonable doubt the following:
- A Valid Suspended Sentence: The suspended sentence was lawfully imposed and active during the time of the breach.
- The Breach: You were found guilty of committing an offence punishable by imprisonment during the operational period of the suspended sentence.
- Statutory Timeframe: The charge was laid within the relevant statutory timeframe:
- 6 months for breaches resulting in imprisonment.
- 1 year for contraventions not punishable by imprisonment.
- 2 years following the operational period’s end.
If these elements cannot be established, you are not guilty of the offence.
What are the penalties of breaching a suspended sentence?
Breaching a suspended sentence carries significant penalties, including:
- Imprisonment:
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- Maximum of 3 months for Level 9 offences.
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- A custodial sentence is common for breaches.
- Fines:
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- Up to 30 penalty units ($4,663.80).
- Suspended Sentence Imposition:
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- Serving part or full of the original suspended sentence.
- Community Corrections Orders (CCO):
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- Often includes unpaid community work.
- Good Behaviour Bond:
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- Adjournment of charges with conditions.
- Youth Justice Centre Orders:
- Tailored for young offenders.
The sentence must be imposed with a conviction, and the original sentence cannot be served concurrently or suspended further.
What are potential defences to consider?
Defences to breaching a suspended sentence depend on the circumstances. Common defences include:
- Statute-Barred Offence: The prosecution did not lay the charge within the statutory timeframe.
- Lack of Breach: The accused did not commit an offence punishable by imprisonment during the suspended sentence period.
- Exceptional Circumstances: Circumstances arose after the original sentence that justify avoiding imprisonment. Examples include:
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- Delays in prosecution.
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- Rehabilitation efforts.
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- Health issues or financial hardship.
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- Significant changes in personal circumstances.
- Mistaken Identity: Evidence shows another person was responsible for the breach.
- Honest and Reasonable Belief: The accused believed their actions did not constitute a breach.
Given the gravity of this offence, it is vital to contact a lawyer at MK Law as soon as possible, so they can tailor a defence strategy specific for your circumstances.
Recent Case examples:
- Charges: Driving an unregistered vehicle, driving while disqualified, and breaching a suspended sentence.
- Facts: The defendant was initially sentenced to 50 days of imprisonment. On appeal, “exceptional circumstances” were presented, including financial hardship, loss of employment, and family responsibilities.
- Decision: The Judge accepted the argument and substituted the sentence with a 12-month CCO and 110 hours of unpaid community work.
Considerations When Sentencing:
Courts take breaches of suspended sentences seriously and consider various factors when determining penalties, including:
- The gravity of the breach.
- The offender’s criminal history and personal circumstances.
- The nature of the offence leading to the breach.
- Efforts at rehabilitation or mitigating actions since the breach.
- Impact on victims or public safety.
Where Will My Matter Be Heard?
Breaching a suspended sentence is always dealt with by the court that imposed the original sentence. This could be:
- Magistrates Court: For less serious breaches.
- County or Supreme Court: For breaches involving serious offences or cases originally handled in higher jurisdictions.
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What happens next?
If you have been charged with breaching a suspended sentence, contact MK Law for expert legal advice 24/7 at 1800 130 120 or marcus@mklawfirm.com.au. Our experienced team specialises in:
- Analysing evidence to identify inconsistencies.
- Negotiating with prosecution to reduce or dismiss charges.
- Preparing strong defences and submissions to achieve favourable outcomes.
- Advising on plea agreements to minimise penalties.
Engage us early to protect your rights and ensure the best possible outcome in your case.
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- 1800 130 120
- marcus@mklawfirm.com.au