It is important to understand the implications and consequences when a person breaches a court order. A court order can be breached intentionally or unintentionally, and the defendant has to prove the intent of the breach to avoid further penalties or even imprisonment.
The Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 commenced on 24 September 2018 and repealed Section 12 of the Crimes (Sentencing Procedure) Act 1999. Under Section 12 of the Crimes (Sentencing Procedure) Act 1999 a court could impose a suspended sentence of imprisonment and direct an offender to enter into a good behaviour bond.
However, suspended sentences were abolished as a result of the amended legislation. Suspended sentences were previously abolished from 1974 – 2000, but they were reinstated until 2018. The Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 changed the Crimes (Sentencing Procedure) Act 1999 to exclude suspended sentences and replaced them with community correction orders.
Section 10 (1)(b) bonds were abolished and replaced with a conditional release order without conviction. Section 10 (1) (a) dismissal and section 10 (1)(c) diversion will remain, and Section 9 bonds were abolished in favour of a community corrections order or a conditional release order with conviction.
The reform of the Crimes (Sentencing Procedure) Act 1999 (NSW) was needed. As the community sentencing options resulted in large numbers of offenders serving their community orders without any supervision and this system was deemed ineffective.
The following penalty categories were implemented in place of the abolished sentencing options:
A court order is used by the Court to administer justice. A court order describes the decision or judgment of judicial officers, and the Court can impose certain orders when deciding a case.
Court orders include an order made after a hearing by a judicial officer or an order made after parties have reached an agreement. Including applying to a court for consent orders. These consent orders become formal court orders and have the same status as if the order has been made after a hearing by a judicial officer.
Community-based correction sentences allow offenders an opportunity to live in and give back to the community while they address the basis of their offending. The community-based correction sentences in NSW have strict conditions in place and these conditions require the offender to do specific activities or programmes. This usually occurs when you have been found guilty of an offence.
Intensive Correction Orders
Suspended sentences were amended and replaced by intensive correction orders. These court orders operate like a prison sentence and it is an order of imprisonment. The offender doesn’t need to agree with its imposition for it to be implemented. These new orders were more effective than short prison sentences.
Intensive Correction Orders are sentences of imprisonment served in the community under supervision and in programmes. The offender does not go to jail. The conviction is recorded and an Intensive Correction Order is a severe punishment. An Intensive Corrections Order is the second most serious type of punishment a Court can impose for committing a serious criminal offence.
The sentences can be up to two years for one offence or three years for multiple offences. Intensive Correction Orders are still more favourable to imprisonment. There is no parole set for Intensive Correction Orders and this means the offender must serve the entire term of the sentence handed down by the Court.
The offender cannot commit any further offences during the Intensive Correction Order and they must be supervised by Corrective Services NSW. An Intensive Correction Order (ICO) has conditions an offender has to adhere to and if an offender does not comply with the conditions the Intensive Correction Order can be revoked. If the Intensive Correction Order is revoked, the offender may be required to serve the balance of the time in prison.
The Parole Authority may impose, vary or revoke any of the conditions of an Intensive Correction Order, including the conditions imposed by the sentencing court. The offender or a community corrections officer has the authority to impose penalties and they can apply to vary an Intensive Correction Order.
Community Corrections Orders
Under the newly amended legislation of The Crimes (Sentencing Procedure) Amendment (Community-based Orders and Other Matters) Regulation 2018, an offender can be issued with a Community Corrections Order. A Community Corrections Order orders an offender to do certain things or attend programs instead of serving a term of imprisonment. For example, the court can impose a curfew or order the offender to report to a community corrections centre.
An offender cannot commit any further offences for the duration of the Community Corrections Order. A Community Corrections Order has conditions attached to it and if the conditions do not comply with the Order can be revoked and the person can be resentenced. Community Correction Orders can be imposed for a period of up to three years and the conviction is being recorded and will appear on an offender’s criminal record.
Conditional Release Orders
A Conditional Release Order was known as a Section 10(1)(b) non-conviction. A Conditional Release Order is a lenient penalty that a Judge or a Magistrate can give for any criminal or traffic offence in NSW. An offender cannot commit any further offences for some time. If the offender commits further offences during the period of conditional release a harsher penalty can be imposed.
Conditional Release Orders have conditions attached to them and this can be imposed for a period of up to two years. If the offender does not comply with the specified conditions the Conditional Release Order can be revoked and the offender re-sentenced. The Court can give a Conditional Release Order with or without a conviction.
The benefits of a Conditional Release Order are:
An offender is bound by a court order and has to comply with the conditions stipulated in the court order. A breach or contravention of court orders happens when an offender does not follow the orders set by the Court. Failing to comply with the conditions of a court order may be considered a breach or in some cases “contempt of court”.
These court orders contain the following standard conditions:
The court orders are enforceable by law and must be followed by the accused. The accused can be charged with an offence for breaching the court order concerning an intensive correction order, community corrections order, and conditional release order. The Court imposing the court order has to ensure the offender consent to any orders and understand the obligations it imposes.
The offender has breached a court order when:
The Court will apply a standard of proof to any decisions it makes about the breach of court orders. The Court will hear the application alleging a contravention of court orders and will come to one of four conclusions:
If the Court finds the allegations of the breach of court orders serious enough to consider a prison sentence, then the allegations must be proved beyond a reasonable doubt. The person who breached the order may be penalised in several ways.
An offender will be in breach of a court order if they commit a criminal offence while serving a community correction order. The offender is also in breach if they do not comply with the conditions of the order. If an offender fails to abide by a community service order, an application to revoke the order may be made by the assigned officer. The Court may then reconsider sentencing options imposed in the original case.
A person who fails to perform the hours of community service as required by a court order within the relevant maximum period is in breach of their court order. An application to revoke the order will be made and if the accused fail to appear in court a summons will be issued. A warrant of arrest will be issued when the accused neglect to appear in court after the summons have been issued.
The Court views breaches of community service orders as a serious offence and if a person intentionally breaches a community service order the court may consider a heavier penalty. It will take a strong defence to convince the court that a heavier penalty should not be imposed.
The court may revoke the order or may impose any sentence option available for the original offence if the breach is the fault of the accused. The court will not order another community service order and the accused may be imprisoned for up to two years. An offender does have the right to appeal.
If you believe you may contravene the order imposed by the Court, you should speak to a criminal defence lawyer.
Accidental Breaches or Contraventions of Court Orders
A person complies with a court order if they take all reasonable steps to comply with the order issued by the Court. However, circumstances can change, and this might make it impossible for either party to reasonably comply with an order. If this is the case, then the order can be changed.
If a person has been accused of breaching a court order, they may have a reasonable excuse to do so. The following reasonable excuses may be accepted by the Court:
The Court may accept the reasonable excuse and waive any penalties even if the person breached the court order.
What are the Penalties for a Breach of a Court Order?
The penalties the Court may impose for the breach of a court order vary in severity. The defendant may be required to appear in Court to determine whether a breach occurred. The Court can impose new penalties for the original offence if the Court believes the person breached a court order. The penalties will vary according to the type, the seriousness, and the content of the court order and the individual circumstances of the case.
The accused has to consent to any order imposed by the Court. A person can defend a charge if they did not consent to any order imposed by the Court or were unaware of the terms of the court order. The accused can argue they honestly and with reasonable belief were not aware they breached their court order.
It is important to seek legal advice if you or a family member has been charged with breaching a court order. Contact Lyons Law Group for a consultation.