Clarity Law

What happens if I breach my probation or community service order?

If you have been sentenced in Court to a period of Probation or a Community Service Order, you are required to comply with the requirements of that order, with the big-ticket items being to not commit further offences whilst on an order, to report when require and/or complete any community service hours as ordered.

If you fall afoul of these and other requirements, you have committed an offence of breaching a probation order / Community Service Order.  The offence of breaching these orders  is considered a serious offence, not because of the maximum penalty specific to the offence under s123 of the Penalties and Sentences Act, however because of the power the court has if a breach is brought to the court.

What does the law say?

• An offender who contravenes, without reasonable excuse, a requirement of a community based order commits an offence.

Penalty— Maximum penalty—10 penalty units.

• Subsection (1) applies—

(a) whether or not the contravention is an offence against another Act or law; and

(b) whether the contravention happens in or out of Queensland.

What does the prosecution need to prove?

Unlike most criminal or traffic offences, the Queensland Police Service do not prosecute the breach probation order offences, that is done by a legal officer from Queensland Corrective Services.

Queensland Corrective Services must prove that an offender, was:

1. subject to a community based order; and
2. the offender, without a reasonable excuse has contravened a requirement of the community based order.

The elements of the offences are simple and usually fairly easily made out.

Are there any defences?

The primary defence to breaching a Community Based Order is effectively, whether you had a reasonable excuse not to comply with a requirement. This could look like an illness or injury which prevented you from attending – although in these circumstances you have obligations to advise that you cannot attend.

What are the usual penalties for this offence?

The offence of contravene requirement of a community based order itself is quite minor, being a maximum fine of 10 penalty units. 

It is the power that is enlivened when a breach is proven which becomes the significant issue for offenders.

The court has the power to increase the number of community service hours an offender has to complete (is applicable), extend the period of probation by 12 months or at the more serious end may do two things:

1. If the order was originally made by a Magistrates Court, they may resentence the offender for the offences they originally received the community based order for; or

2. If the order was made by a superior court, such as Supreme or District Court, the court may:

   1. Commit the offender to custody; or

   2. Grant the offender bail on the condition they appear before the superior sentencing court – where they will be resentenced.

What does this offending look like?

This offence can arise in a number of situations, ranging from failing to update the Community Corrections Officer of a change of address within 2 business days to much more serious breaches of committing further offences.

Example 1. Bill was sentenced in Brisbane to a period of probation for 12 months. During the period of probation, Bill wasn’t particularly receptive to supervision and failed to report to Community Corrections when required. Bill failed to attend 3 times and his probation officer commenced breach proceedings against him. Community Corrections issued a summons and Bill had to attend court to on a Breach of Probation in the Cleveland MagistrtesC Ourt. The court determined that it was a minor breach and made the decision to fine Bill for the breach and extend his probation by 6 months.

Example 2. Regina was sentenced by the Supreme Court to a period of Probation for 2 years. During this time, Regina is brought before the court for a series of drug possession offences which caused her to contravene the conditions of her probation order. The Court deals with the matters in the Magistrates Court jurisdiction of Southport and Community Corrections takes a breach action against her. As a result of the Breach action, the Magistrates Court commits the matter to the Supreme Court, and gives her bail on the undertaking that she appears to be sentenced in the Supreme Court.

These are just two examples of how this offending can occur, it encompasses a wide range of circumstances which can arise when community based orders aren’t followed. It is important to take these orders seriously and get legal advice if Community Corrections decide to pursue you for a breach offence.

What court will hear my matter?

The matter will always start in the Magistrates Court. The Contravention offence will be dealt with by the Magistrate’s Court, however, resentences will occur in a higher court if that is where the order was originally made.

Why should I get legal advice if I am going to be resentenced?

The short answer to this question, is to put your best legal foot forward and identify if it is necessary for the court to resentence for the breach. If the court determines that resentencing is necessary, taking advice of experienced practitioners puts you in the best possible position.

Conclusion

This article by no means covers the entire suite of situations and outcomes that arise out of a contravention of a community based order offence. This article is designed to assist those who are facing this offence to get a better understanding of the offence, their options and critically empower them to ask the right questions of their legal representatives.

Engaging Clarity Law to act for you

Engaging us gives you the best chance at trying to avoid serving time in prison.   We are one of the leading criminal law firms in South East Queensland.  Just some of the benefits of us acting for you include:

1. we know the judges and what they want to hear to give you the best outcome

2. we have good relationships with the prosecutors meaning we can often have them not seek an actual prison sentence

3. we are there to help you through the process and make everything as stress free as possible

4. engaging us shows the court you are taking your charges seriously

5. you will be fully informed of what is to happen in court and what this means for you after court

6. unlike the police or the Judge, we are there to look after you, your privacy and your interests

How do I get more information or engage you to act for me? 

If you want to engage us or just need further free information or advice then you can either;

1. Use our contact form and we will contact you by email or phone at a time that suits you

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