A court that suspects an offender may have failed to comply with any condition of a CCO or CRO may call on the offender to appear before it: ss 107C(1), 108C(1). The court that made the order may deal with a breach even though constituted differently from when the order was made: ss 107C(6), 108C(6).

If a community corrections officer is satisfied an offender has failed to comply with any conditions of a CCO or CRO, the officer may file a written breach report with the relevant court: cl 329(1). However, a court can still deal with a suspected breach even if a report has not been filed: cl 329(11)

The court must fix a date for hearing not earlier than 14 days and no later than 3 months after the breach report was filed but may waive or vary this requirement: cl 329(2)–(3).

If the matter is set down for hearing, a copy of the breach report must be given to the offender at least 5 days before the hearing either by the court or the community corrections officer: cl 329(4), (5).

A breach of a CCO or CRO may be dealt with by the court with or without the parties being present and in open court or in the absence of the public: cl 329(6). However, neither the Act nor the Regulations provide guidance as to the factors a court might consider when deciding whether to deal with such a matter in the offender’s absence.

The court may issue a warrant for the offender’s arrest if their location is unknown or they fail to appear: s 107C(2)–(3); s 108C(2)–(3) for CROs.

A breach of either a CCO or CRO may be dealt with by:

The distinction between a court “of like jurisdiction” and a court “of superior jurisdiction” was discussed in DPP (NSW) v Jones [2017] NSWCCA 164 in the context of the previous provisions concerning breach of a good behaviour bond (former ss 98 and 99 (since amended) Crimes (Sentencing Procedure) Act 1999 (C(SP) Act)). In that case, drawing on s 71 of the Crimes (Appeal and Review) Act 2001, the Court held the Local Court was a “court of like jurisdiction” with respect to the District Court in its appellate jurisdiction: [22]-[26], [28]. Accordingly, where a bond was imposed by the District Court in an appeal against sentence, it was open to the Local Court when sentencing for fresh offences to also deal with a failure to comply with the bond: [26].

The former s 98(1)(a) C(SP) Act provided a bond may be dealt with by “the court with which the offender has entered into the bond”. Accordingly, under the former s 98(1)(a), where a bond was imposed by the Local Court, but confirmed on appeal by the District Court, it is the Local Court that may call on an offender, and the District Court has no jurisdiction: DPP (NSW) v Jones at [20], referring to Yates v The Commissioner of Corrective Services, NSW [2014] NSWSC 653.

In Yates v The Commissioner of Corrective Services, NSW in relation to the former s 98 C(SP) Act, the Court held a court of superior jurisdiction must obtain the express consent of the offender before it was permitted to deal with a suspected breach of an order (such as a bond imposed by a lower court), and informal or implied consent will not suffice: [43]. The consent must occur at a time when the offender is called upon to appear before the court rather than at the appearance: [41].

Sections 107C(5) and 108C(5) require a court to be “satisfied” the offender “has failed to comply with any of the conditions” of the particular order before deciding the appropriate action to be taken. If satisfied, the court may, pursuant to s 107C(5) or s 108C(5):

In DPP (NSW) v Caita-Mandra [2004] NSWSC 1127, which concerned repealed s 115(3), a similarly expressed provision, the Court concluded the provision first required the court to determine whether the application for revocation had been established. If the grounds are established, the legislation permitted the court, in its discretion, to revoke the order and, if appropriate, deal with the offender as though the order had not been made: [13]–[14].

The two decisions — revocation and whether a consequential order should be made — should not be conflated. If the order is revoked, the court then determines in the exercise of its discretion whether to make any consequential order. A number of relevant facts and circumstances may be taken into account in exercising that discretion including whether the circumstance giving rise to revocation is, or is not, the offender’s fault: DPP (NSW) v Caita-Mandra at [15] and the cases cited there. Subsequently, in DPP v Brasher [2016] NSWSC 1707, the Court held it has a discretion to re-sentence the offender and may exercise that discretion in a manner favourable to the offender, provided adequate reasons are given: [25]. These decisions may continue to provide some guidance.

Where the particular order is revoked, the offender is dealt with for the original offence: Bonsu v R [2009] NSWCCA 316 at [9].

If the order is revoked, the court may re-sentence the offender: ss 107D(1), 108D(1). The court must take into account any time for which the offender was held in custody for the offence: s 24(a) Crimes (Sentencing Procedure) Act 1999. Further, when an offender is sentenced following a breach of an order, the court must take into account the fact the offender was subject to such an order and anything done in compliance with their obligations under it: s 24(b) Crimes (Sentencing Procedure) Act.

Where an offender is to be re-sentenced following a breach of bond, the sentence imposed may not exceed that which is appropriate to the objective circumstances, however, it should, depending on the breach, reflect that the offender rejected the trust placed in them by the previous sentencing court, their lack of remorse, and the doubt regarding their prospects for rehabilitation: R v Morris (unrep, 14/7/95, NSWCCA) at [5]. In that case, the Court added at [6]:

The offender has the same rights of appeal as if the offender was sentenced by that court on conviction for the offence: ss 107D(3), 108D(3).

If the court imposes, adds or varies a condition of the order, it must take reasonable steps to explain to the offender (in language they can understand):

However, a court may vary or waive this requirement: cl 329(10). An order of the court is not invalidated by failure to comply with cl 329(8): cl 329(9).

The court must cause notice of the outcome of the matter to be given to the offender, although the court may also vary or waive this requirement: cl 329(7)(a), (10).

If the court:

it must provide notice of the outcome to the Community Corrections: cl 329(7)(b).

Note: community service work cannot be imposed as a condition of a CRO in any circumstance and can only be imposed as a condition of a CCO if an assessment report has been obtained: see Requirements for assessment reports at [3-510].

Cases which addressed the approach to be taken to the breach of a formerly available community-based order such as a community service order (CSO) or a good behaviour bond, may provide guidance as to the approach to be taken to breaches of CCOs and CROs. However, a cautious approach to those cases may be warranted given one of the purposes of the reforms was to “help offenders receive the supervision and programs that address their offending behaviour”: Second Reading Speech for the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill and cognate legislation, NSW, Legislative Assembly, Debates, 11 October 2017, p 2.

In R v Cicekdag [2004] NSWCCA 357 (a case where the offender committed a similar offence when subject to a CSO), the Court likened a CSO to conditional freedom by way of bail, recognizance or parole, a breach of which was akin to, citing Wood CJ at CL in R v Tran [1999] NSWCCA 109 at [15], a “betrayal of the opportunity for rehabilitation”: [52]. Justice Hoeben (James and Grove JJ agreeing), in R v Cicekdag, added:

It is important that breaches of non-custodial sentencing options should be dealt with promptly and regarded seriously: R v Morris (unrep, 14/7/95, NSWCCA) at 5. In R v Morris, Kirby ACJ, Badgery-Parker and Bruce JJ in a joint judgment said that if leniency is extended inappropriately:

The above passage was cited with approval in DPP v Brasher [2016] NSWSC 1707 at [29]. In that case, the Court held a magistrate erred by failing to make any order consequential upon the revocation of the offender’s CSO in accordance with s 115(3) (rep). The decision of the magistrate not to impose a penalty for driving with the mid-range prescribed concentration of alcohol following revocation of the CSO was held to be unreasonable: [29]. The fact the magistrate imposed a $500 fine in lieu of a revoked bond for another offence in the same proceedings was an irrelevant consideration: [30].