Breaches of non-custodial community-based orders

A court’s power to deal with breaches of community correction orders (CCOs) and conditional release orders (CROs) is contained in respectively ss 107C and 108C Crimes (Administration of Sentences) Act 1999. The procedures for dealing with breaches of these orders are set out in cl 329 Crimes (Administration of Sentences) Regulation 2014.

[6-600] Commencing breach proceedings

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) Crimes (Administration of Sentences) Act 1999. The court that made the order may deal with a breach even though constituted differently from the court that made the order: 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) Crimes (Administration of Sentences) Regulation 2014.

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 after 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) Crimes (Administration of Sentences) Regulation 2014. However, neither the Crimes (Administration of Sentences) Act 1999 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) Crimes (Administration of Sentences) Act for CCOs, s 108C(2)–(3) for CROs.

[6-610] Jurisdiction

A breach of either a CCO or CRO may be dealt with by the court that made the order, any other court of like jurisdiction or, with the offender’s consent, any court of superior jurisdiction: s 107C(1) Crimes (Administration of Sentences) Act 1999 for CCOs; s 108C(1) for CROs.

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 legislative provisions concerning breach of a good behaviour bond. The expression “court of like jurisdiction” empowers the Local Court to call up and, if satisfied there had been a failure to comply with a condition or conditions, to revoke a good behaviour bond imposed by the District Court in an appeal against sentence: DPP (NSW) v Jones at [28]. Where a failure to comply with a condition of the bond involved the commission of further offences, it was open to the Local Court when sentencing for those further offences to deal with the failure to comply with the bond, even though it was imposed in the District Court pursuant to an appeal against an earlier sentence: DPP (NSW) v Jones at [26].

Section 71 Crimes (Appeal and Review) Act 2001 is headed “Variation of sentences of Local Court” and s 71(3) provides:

Any sentence varied or imposed by an appeal court, and any order made by an appeal court under this Act, has the same effect and may be enforced in the same manner as if it were made by the Local Court.

The language of these provisions is said to suggest that the Local Court and District Court are courts “of like jurisdiction” in circumstances where a bond, imposed in the District Court following a sentence appeal, is breached: DPP (NSW) v Jones at [22]–[25]. Section 71(1)–(2) precludes the District Court imposing any sentence that could not be imposed by the Local Court: DPP (NSW) v Jones at [24].

Further, s 71(3) indicates that an order imposed in the District Court has the same effect and may be enforced in the same manner as if it had been imposed by the Local Court: DPP (NSW) v Jones at [25].

However, it has also been held that “relevant court” (that is, the court “with which” the offender entered into the bond) was the Local Court in circumstances where the bond was imposed by that court, and the sentence was confirmed on appeal by the District Court: DPP (NSW) v Jones at [20], referring to Yates v The Commissioner of Corrective Services, NSW [2014] NSWSC 653 at [43].

Under the previous legislative provisions (in relevantly similar terms to ss 107C(1) and 108C(1)), it was held that 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): Yates v The Commissioner of Corrective Services, NSW at [43]. Informal or implied consent will not suffice: Yates v The Commissioner of Corrective Services, NSW at [43]. The consent must occur at a time when the offender is called upon to appear before the court rather than at the appearance: Yates v The Commissioner of Corrective Services, NSW at [41].

[6-620] Determining the breach

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 the court is satisfied the offender has failed to comply with any of the conditions of the CCO or CRO, it may, pursuant to s 107C(5) Crimes (Administration of Sentences) Act 1999 for CCOs, s 108C(5) for CROs:


decide to take no action, or


vary or revoke any conditions of the order (other than standard conditions) or impose further conditions, or


revoke the order.

In DPP (NSW) v Caita-Mandra [2004] NSWSC 1127 at [14], which concerned a now repealed but similarly expressed provision (s 115(3) (rep) Crimes (Administration of Sentences) Act), 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.

The two decisions — revocation and whether a consequential order should be made — should not be conflated. If the particular 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 can 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 therein. Subsequently, in DPP v Brasher [2016] NSWSC 1707 at [25], the court concluded that it was clear in such circumstances that the court had a discretion to re-sentence the offender and may exercise that discretion in a manner favourable to the offender provided adequate reasons are given. 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].

[6-630] Consequences of determining a breach

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 sentencing for a breach of obligations under the particular order, the sentencer must take into account the fact the offender was subject to such an order and anything done in compliance with their obligations under the order: s 24(b).

In cases involving a breach of a bond, it has been held that the sentence imposed must not exceed the sentence that is appropriate for the original offence. However, it may reflect the fact the offender has rejected the trust placed in him or her by the previous sentencing court, that this shows a lack of remorse and casts doubt on the offender’s prospects for rehabilitation: R v Morris (unrep, 14/7/95, NSWCCA). Kirby ACJ, Badgery-Parker and Bruce JJ added:

Two things need to be borne in mind by any court which is called upon to sentence an offender in circumstances where that offender is called before the court by reason of such a breach. The first and fundamental is that that offender comes to be punished not for the breach but, following the breach, for his other original offence in respect of which the recognizance was imposed. Secondly, in assessing the appropriate punishment for that original offence, the court must not ignore whatever penalty, whether by way of imprisonment or otherwise, may have been imposed by it or by some other court in respect of the conduct constituting the breach. The principle of totality clearly applies to the sentences to be imposed in respect of the breach and thereafter in respect of the original offence.

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

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), pursuant to cl 329(8) Crimes (Administration of Sentences) Regulation 2014:

  • the offender’s obligations under the condition, and

  • the consequences of a failure to comply with those obligations.

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).

Notice of the outcome of the proceedings must be given to Community Corrections if the court, pursuant to cl 329(7)(b):

  • adds, varies or revokes a condition of a CCO or CRO that is subject to a supervision condition or community service work condition, or

  • imposes a supervision condition on a CCO or CRO or a community service work condition on a CCO.

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].

[6-640] Breaches should be regarded seriously

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 (bond) may provide some guidance to the approach to be taken to breaches of CCOs and CROs imposed from 24 September 2018. However, a cautious approach to those cases may be warranted given one of the purposes of the reforms was said to be 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) 150 A Crim R 299 (a case where the offender committed a similar offence when subject to a CSO), Hoeben J at [52], Grove and James JJ agreeing, 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”. Justice Hoeben, in R v Cicekdag, added at [53] that:

If such a circumstance is not to be regarded as an aggravating feature, it is certainly to be regarded as a strong indication that further attempts at rehabilitation by way of conditional liberty are likely to be unsuccessful.

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

there is a very real risk that the whole regimen of non-custodial sentencing options will be discredited both in the eyes of those members of the community who might otherwise have continued to support them and in the eyes of magistrates and judges; and there is a substantial risk that courts, of their own motion but also reflecting in a general way community opinion, may become increasingly reluctant to extend to offenders those lesser sentencing options which the legislature has provided. It is therefore extremely important that breaches of non-custodial sentencing orders be brought promptly to the notice of the sentencing court and there be dealt with swiftly and, generally speaking, in a manner which will demonstrate how seriously such breaches are regarded and must be regarded in the community interest.

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 in law in failing to make any order consequential upon the revocation of the offender’s CSO in accordance with s 115(3) (rep) Crimes (Administration of Sentences) Act 1999. The decision of the magistrate not to impose a penalty for a mid-range Prescribed Concentration of Alcohol (PCA) offence following the revocation was held to be so unreasonable as to amount to an error of law: DPP v Brasher at [29]. The fact that the offender had received a $500 fine in lieu of a s 9 bond in the same proceedings was an irrelevant consideration: DPP v Brasher at [30].