Section 27 of the Sentencing Act 1991 (Vic) sets out the circumstances whereby a Magistrate or Judge can impose a suspended term of imprisonment.
A Magistrate or Judge who imposes a suspended sentence is seeking to strike a balance between underscoring the seriousness of the offending (or recidivist behaviour) and allowing the offender to reform by not sending them to jail.
A term of imprisonment is set by the relevant sentencer, and then an operational period of that term is announced, for example: “I order that you serve 6 months imprisonment to be wholly suspended for a period of 18 months”.
If a person commits a further offence punishable by imprisonment the starting point is that the offender must serve the suspended term, unless they can establish that exceptional circumstances have arisen since the suspended sentence such that restoring and ordering the individual to serve the sentence would be unjust.
As this sentencing order is a custodial order, it must be made with conviction. “Exceptional circumstances” are considered very hard to establish by the Courts. The circumstances argued to be “exceptional” must have arisen since the suspended sentence was imposed.
The Victorian Court of Appeal has held that an exceptional circumstances had the circumstances must be so exceptional so as to be “beyond reasonable contemplation or expectation” (See R v Stegall  VSCA 278). Subsequent cases have held that exceptional circumstances do not necessarily have to be “beyond reasonable contemplation or expectation”, however the hurdle remains a high one to clear, and the task of persuading a Magistrate or Judge to not restore a suspended sentence is never an easy one.
In all cases the establishment of “exceptional circumstances” will not turn upon one factor alone. Your criminal defence lawyer will argue a combination of circumstances (such as delay in the prosecution case, different nature of the breaching offence, recent rehabilitation, or conversely, health set-backs, a significant mental health condition that the previous sentence could not have been aware of, etc.) as exceptional circumstances.
For the foregoing reasons, if you are in breach of a suspended sentence early preparation is key as is the need to instruct an experienced criminal defence lawyer.
Abolition of Suspended Sentences
Suspended sentences are being progressively abolished in Victoria. Since 1 September 2013, a sentence for any offence in the Supreme Court or County Court cannot be suspended and a sentence may only be suspended in the Magistrates’ Court if the offence is not ‘serious or significant’, if the sentence imposed is less than two years, and if it is desirable in the circumstances. However the County Court may impose a suspended sentence on an appeal if that sanction was available in the Magistrates’ Court. Unless proclaimed earlier, from 1 September 2014 suspended sentences will be abolished for all offences, irrespective of which jurisdiction hears the matter. Where an offence is committed prior to any of these dates, the law applies as it was at that time.
Please refer below to a catalogue of case studies in which a suspended sentence was imposed. Refer also to the case studies where we have successfully argued exceptional circumstances to avoid restoration of a suspended sentence.
- Centrelink fraud, plea in the Magistrates’ Court
- Multiple theft charges, successful appeal to the County Court
- Aggravated Burglary, Threats to kill, & Other Charges – Wholly suspended sentence
- Application to vary an Intensive Corrections Order
- Armed robbery plea in the County Court – Wholly Suspended Sentence & CBO
- Breach of Intervention Order and Breach of Community-Based Order
- Breach of Suspended Sentence, appeal to the County Court
- Burglary x2 Theft of motor vehicle Theft x6
- Cultivation of narcotic plants, Trafficking – commercial quantity, Other Charges
- Driving, dishonesty, drug charges, and breach of suspended sentence
- Sexual penetration, rape, indecent assault
- Intentionally cause injury – Suspended sentence
- Obtaining property by deception
- Possess child pornography & Use telecommunications service to transmit it
- Armed Robbery – Suspended Sentence
- Suspended Sentence for Commercial Cannabis Cultivation
- Sexual penetration child under 16 years, County Court Plea
- Theft from employer – Plea in the Magistrates Court – Wholly suspended sentence
- Trafficking, Possess Drug of Dependence – Wholly suspended sentence
- Uncharged Acts
- Appeal against term of imprisonment for driving offences
- Dangerous driving causing death Dangerous driving causing serious injury
- Drive disqualified
- Drive disqualified – Suspended sentence
- Drive Whilst License Suspended, Fail to wear seat belt, Drive unregistered motor vehicle
- Drive whilst license suspended – Suspended Sentence
- Driving whilst disqualified, exceeding signed speed limit
- Driving whilst disqualified x 2, fraudulent use of plates x 3
- Driving Whilst License Disqualified, plea of guilty in Magistrates Court
- Negligently causing serious injury- driving matter- plea in the County Court