Breach Suspended Sentence – Suspended Sentence Not Restored

driving-pulled-overOur client was charged with contravening a suspended sentence by further offending. He faced the County Court in 2011 on a plea of guilty to charges of aggravated burglary, intentionally causing injury, assault, driving disqualified and drink driving. A sentence of 29 months imprisonment was imposed. The court ordered that our client serve 7 months of that term and that the remaining 22 months be suspended.

Following his release from custody, our client committed three further driving offences within the operational period of the suspended sentence. Specifically, the charges were again driving disqualified and drink driving. Once the new driving matters were finalised in the Magistrates’ Court, breach proceedings were listed in the County Court. Our client faced the prospect of having to serve the full 22 months, plus an additional sentence on the breach charge. The only way to avoid the restoration of a suspended gaol term on a breach hearing is to persuade the court that exceptional circumstances apply.

We represented the client at the Melbourne County Court.

Following lengthy submissions and discussions in this case, the Court was convinced that exceptional circumstances did exist and the suspended sentence was not restored. In regards to the breach charge, our client received a further suspended gaol term of 2 months.

To meet the test for exceptional circumstances, the sentencing Court must be convinced that there are matters which have arisen after the suspended sentence was imposed, which are so unusual as to fall outside the normal consequences or behaviours that could be anticipated. The meaning of the term ‘exceptional circumstances’ has been explored in various cases in the Higher Courts. It has been found that it need not be a one-off event or happening, but that multiple factors can combine to create exceptional circumstances. We relied upon a combination of factors in this case.

Our key submission centred on the fact that our client had disclosed that he had been abused as a child. This disclosure came after the suspended sentence and we were able to point to the fact that our client was now receiving counselling for this matter for the first time in his life. Our client provided a compelling explanation to the court about the way in which this psychological trauma is manifesting in his daily life. In support of this, we obtained a psychological assessment and report and sought supporting documentation from his treating psychologist. Personal references and other documents were also tendered at court. Other factors relied upon in combination with the childhood abuse included:

  • Compliance with the Credit bail program and positive rehabilitative efforts;
  • The imposition of a Community Corrections order for the new offending and his compliance with same;
  • An otherwise lengthy offence free period since the suspended sentence was imposed; and
  • The difference in nature between the most significant offences dealt with in 2011 and the new offences.

At the conclusion of the matter, the Judge was convinced that exceptional circumstances did in fact apply. Our client was able to return home to be with his family and support networks and to continue his personal efforts at rehabilitation in the community.


DISCLAIMER: This is a real case study of an actual case from our files. Details pertaining to the client have been changed to protect their privacy. The sentence imposed and the charge have not been altered. These case studies are published to demonstrate real outcomes and give an indication of possible tariffs in Court. We do not guarantee a similar case on these charges will get the same result. Please note that we post results at our discretion, therefore while many case studies are average results, others are notable for their exceptional outcomes. PUBLISHED 25/02/2013