SENTENCING ACT 1995 - SECT 43 Breach of order suspending sentence
SENTENCING ACT 1995 - SECT 43
Breach of order suspending sentence(1) Where:
(a) while an order suspending a sentence of imprisonment under section 40 is in force; or
(b) within the period of 2 years after the expiry of the operational period of a suspended sentence;
it appears to a prescribed person or a member of a prescribed class of persons that, during the operational period, the offender committed another offence against a law in force in the Territory or elsewhere that is punishable by imprisonment, he or she may apply, in the prescribed form, to the court which sentenced the offender for an order under this section.
(2) Where it appears to a prescribed person, or a member of a prescribed class of persons, that an offender has breached a condition to which an order suspending a sentence imposed on the offender is subject, he or she may apply, whether or not the order is still in force, in the prescribed form, to the court which sentenced the offender for an order under this section.
(3) Where an application is made under subsection (1) or (2):
(a) notice of the application must be given to the offender; or
(b) where the Court is satisfied:
(i) for an application under subsection (1) – that, during the operational period of the suspended sentence, the offender committed another offence against a law in force in the Territory or elsewhere that is punishable by imprisonment and that the offender may not appear; or
(ii) for an application under subsection (2) – that the offender has breached a condition to which the order suspending the sentence is subject and that the offender may not appear;
the Court may issue a warrant for the arrest of the offender.
(4) The court may, on the hearing of an application under this section, order that a warrant be issued to arrest an offender where the offender does not attend before the court on the hearing of the application.
(4AA) A police officer who suspects, on reasonable grounds, that an offender has breached a condition to which an order suspending a sentence imposed on the offender is subject may, without warrant, arrest the offender.
(4AB) For the application of sections 137 and 138 of the Police Administration Act 1978 , a breach of a condition to which an order suspending a sentence imposed on an offender is subject is to be taken to be an offence.
(4A) Where:
(a) an offender appears before a court:
(i) while an order made by the court suspending a sentence of imprisonment under section 40 is in force in respect of the offender; or
(ii) within the period of 2 years after the expiry of the operational period of a suspended sentence imposed by the court on the offender; and
(b) the court is satisfied that, during the operational period of the suspended sentence, the offender committed another offence against a law in force in the Territory or elsewhere that is punishable by imprisonment;
the court may of its own motion make an order under this section.
(4B) Where a court is satisfied that an offender who is before the court has breached a condition to which an order made by the court suspending a sentence imposed on the offender is subject, the court may of its own motion make an order under this section.
(4C) Where the Local Court is satisfied in respect of an offender who is before that Court:
(a) that, during the operational period of a suspended sentence imposed on the offender by the Supreme Court, the offender committed another offence against a law in force in the Territory or elsewhere that is punishable by imprisonment; or
(b) that the offender has breached a condition to which an order made by the Supreme Court suspending a sentence imposed on the offender is subject;
the Local Court may commit the offender to the Supreme Court to be dealt with by that Court under this section.
(4D) If the Supreme Court is satisfied in respect of an offender before that Court that, during the operational period of a suspended sentence imposed on the offender by the Local Court, the offender committed another offence against a law in force in the Territory or elsewhere that is punishable by imprisonment:
(a) for subsection (4A), the Supreme Court is taken to have imposed the suspended sentence; and
(b) the Supreme Court may deal with the offender under this section.
(4E) If the Supreme Court is satisfied in respect of an offender before that Court that the offender has breached a condition of an order made by the Local Court suspending a sentence imposed on the offender:
(a) for subsection (4B), the Supreme Court is taken to have made the order; and
(b) the Supreme Court may deal with the offender under this section.
(5) Where:
(a) on the hearing of an application under subsection (1) or on the hearing of its own motion under subsection (4A), a court is satisfied, by evidence on oath or by affidavit or by the admission of the offender, that, during the operational period of the suspended sentence, the offender committed another offence against a law in force in the Territory or elsewhere that is punishable by imprisonment; or
(b) on the hearing of an application under subsection (2) or on the hearing of its own motion under subsection (4B), a court is satisfied, by evidence on oath or by affidavit or by the admission of the offender, that the offender has breached a condition of the order;
the court may:
(c) subject to subsection (7), restore the sentence or part sentence held in suspense and order the offender to serve it; or
(d) restore part of the sentence or part sentence held in suspense and order the offender to serve it; or
(e) for a wholly suspended sentence, extend the operational period to a date after the date of the order suspending the sentence; or
(ea) for a partially suspended sentence – extend the operational period to a date after the date specified in the order suspending the sentence; or
(f) make no order with respect to the suspended sentence.
(6) Where a court orders an offender to serve a term of imprisonment that had been held in suspense, the term must, unless the court otherwise orders, be served:
(a) immediately; and
(b) concurrently with any other term of imprisonment previously imposed on the offender by that or any other court.
(7) A court must make an order under subsection (5)(c) unless it is of the opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was imposed, including the facts of any subsequent offence and, if it is of that opinion, the court must state its reasons.
(8) Where a court makes no order with respect to a suspended sentence, the proper officer of the court must record the fact in the records of the court.