Have you been charged with Breaching a Suspended Sentence of Imprisonment?
If you have been charged with breaching a suspended sentence you will need to speak to a lawyer who specialises in representing clients charged with criminal offences. There are a number of things that are relevant to the charge that you will need to discuss with your lawyer, such as:
- Is there potential for you to avoid serving the suspended sentence by establishing exceptional circumstances?
- Does the new offence breach the suspended sentence?
- Have the prosecution laid the breach of the suspended sentence within time or are they statute barred from doing so?
These questions can only be answered by engaging the services of experienced criminal lawyers.
The offence
Section 83AB of the Sentencing Act
The prosecution must prove:
- That a valid suspended sentence was imposed
- That the breaching offence occurs within the operational period of the imposed suspended sentence.
- That the breaching offence is an offence that has a maximum penalty involving imprisonment
- That the charge has been laid within the statutory time frames.
The maximum penalty
Level 9 imprisonment being a maximum of 3 months.
Where will my case be heard?
Breaching a suspended sentence will be heard in the local Magistrates Court if the original suspended sentence was imposed in the Magistrates’ Court. If the original suspended sentence was imposed in the County Court or Supreme Court then the charge will be heard in the respective Court.
Questions to consider
Was the charge laid within 6 months of the matter that breaches the suspended sentence being dealt with or within 2 years of the end of the operational period? If none of the above has occurred then the prosecution are statute barred from proceeding with the matter (see section 83AH subsection (1) and (2)).
Was the breaching offence an offence capable of attracting a term of imprisonment? Can you establish ‘exceptional circumstances’? These would be matters that have occurred after the imposition of the original suspended sentence.
What to do next
Seek experienced criminal defence lawyers to assist you. If you are breaching a suspended sentence then you are at real risk of serving gaol time. The only thing between you and gaol might be an experienced criminal lawyer.
Call our office today if you have been charged with breaching a suspended sentence.
The legislation
Section 83AB Contravention of suspended sentence
(1) If an offender who is subject to a suspended sentence order is convicted or found guilty of an offence punishable by imprisonment, being an offence committed during the period of the order, the offender is guilty of an offence and liable to a penalty not exceeding 3 months imprisonment.
2) In this section suspended sentence order means an order under section 27 suspending the whole or a part of a sentence to a term of imprisonment.
Section 83AH Time for commencing a proceeding
(1) A proceeding for an offence under section 83AB, 83AC or 83AD must be commenced—
(a) if the contravention is constituted by the offender committing another offence punishable by imprisonment while the order is in force, within 6 months after the person is convicted or found guilty of the later offence, subject to subsection (2); or
(b) if the contravention is not constituted by the offender committing another offence punishable by imprisonment while the order is in force, within 1 year after the order ceases to be in force.
(2) A proceeding for an offence under section 83AB, 83AC or 83AD to which subsection (1)(a) applies must not be commenced more than 2 years after the order ceases to be in force.
Note
The time limit for the commencement of a proceeding for a summary offence under section 7 of the Criminal Procedure Act 2009 applies to an offence against section 83AE or 83AF.
NB: Suspended Sentences ceased being imposed in the County Court and Supreme Court regarding matters in their original jurisdiction in 2013. As of late 2014 the Magistrates Court ceased imposing suspended sentences (see Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013).
