Area of Law – Breaching Offences

An Article about Breach of suspended sentence

Breach of order suspending sentence
A breach of a suspended sentence occurs where a person has received a sentence of suspended sentence of imprisonment ordered and then commits a subsequent offence which is punishable by imprisonment. When the Court imposes a suspended sentence they explain that you will be gaoled if you commit any offence punishable by imprisonment. A lot of driving offences (as they can carry impisonment ) will breach a suspended sentence.

To avoid a period of imprisonment it is necessary to show that exceptional circumstances have arisen since the order was imposed.

The relevant legisation is the Sentencing Act;

31. Breach of order suspending sentence

(5) If the court that imposed a suspended sentence of imprisonment is satisfied that the offender has been found guilty of an offence punishable by imprisonment committed during the operational period of the suspended sentence it must-

(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.

(5A) Despite anything to the contrary in subsection (5), if the court is satisfied as mentioned in that subsection it must exercise the power referred to in paragraph (a) of that subsection unless it is of the opinion that it would be unjust to do so in view of any exceptional circumstances which have arisen since the order suspending the sentence was made.

(5B) If the court decides not to exercise the power referred to in subsection (5)(a), it must state in writing its reasons for so deciding.

(6) 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.

What amounts to exceptional circumstances
The meaning of exceptional circumstances has been the subject of much case law;

The Prosecution often rely on Kent v Wilson where, Hedigan J found that the matters referred to by the magistrate could mean no more than that the defendant had improved his behaviour in society.

His Honour doubted that “atypical” was a synonym for “exceptional” and observed that the legislature could not have intended that “the living of life in an ordinary way, neglecting the obligations to comply with the conditions, could constitute something exceptional, even though to do so may be considerably different from the pre-sentence behaviour”. His Honour further noted that the “essential human normality” of behaviour, such as leaving home, getting a job and forming a relationship could not be exceptional. Rather, such circumstances were “merely changed circumstances” and were “not only not exceptional but, if not normal, at least commonplace”.

Possible exceptional circumstances contemplated by Hedigan J in relation to failure to report under a combined custody and treatment order included an incapacity for communication due to being in a state of coma, the destruction of all prisons within the relevant classification, or a case in which the defendant had become an informer after release.

The meaning of exceptional circumstances was also canvassed in Q v Steggall [2005] VSCA 278

There is case of R v Snip [2000] VSC 205 that makes clear that exceptional circumstances can be found where the offence is significantly different than what the original order was for.

What the Courts have said in a number of cases is that there is no exhaustive definition of exceptional circumstances. Each case turns on its own facts.

Discretion of sentencer
In the absence of a finding of exceptional circumstances, the terms of s.31(5A) mandate the restoration of the suspended sentence. Discretion, in that sense, is excluded.

DPP v Marell [2005] VSC 430 (10 November 2005)

It is possible to receive a non-parole period on restoration of a suspended sentence R v Steggall [2005] VSCA 278

There can be agreement between Prosecution and Defence as to whether exceptional circumstances exist (this does not bind the Court but is an important factor).

Q V Ioannou [2007] VSCA 277

 

Date: 09/01/2009