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19.6.8.5 - Procedure for determining suspended sentence contravention charges

Procedure where offender not before court

If a charge sheet is filed in the Magistrates’ Court but that Court did not make the order that is the subject of the offence, it must transfer the proceeding to the court that imposed the suspended sentence (Sentencing Act 1991 s83AJ(1)).

If this occurs, the Supreme or County Courts may hear and determine the proceeding. Chapter 3 of the Criminal Procedure Act 2009 applies to these proceedings, subject to any modifications made by the relevant court rules (s83AJ(4)).

Procedure where offender before court

A separate process applies if an offender is already before the court for a different offence, which also constitutes a contravention of a pre-existing suspended sentence in relation to him or her that was made by the same court. These procedures are set out in ss83AL and 83AM.

Section 83AL applies where the original suspended sentence was made by the Supreme or County Courts. It states:

(1) If in a proceeding before the Supreme Court or the County Court (the relevant sentencing court)—

(a) an offender is before the relevant sentencing court and is convicted or found guilty of the offence that is the subject of the proceeding; and

(b) the conviction or finding of guilt constitutes a contravention of an order (the original order) under this Act applying to the offender, in respect of which a charge-sheet may be filed for an offence under section 83AB, 83AC, 83AD, 83ADA or 83ADB; and

(c) the original order was made by the relevant sentencing court— despite anything to the contrary in this Division, the proceeding for the offence under section 83AB, 83AC, 83AD, 83ADA or 83ADB may be commenced by filing a charge-sheet in the relevant sentencing court.

(2) If a charge-sheet is filed in the relevant sentencing court under subsection (1) it must be filed by—

(a) the Director of Public Prosecutions; or

(b) a crown prosecutor within the meaning of the Criminal Procedure Act 2009; or

(c) a member of staff of the Office of Public Prosecutions who is a lawyer; or

(d) a police officer; or

(da) an informant in the proceeding for which the original order was made that is the subject of the charge; or

(e) a prescribed person; or

(f) a member of a prescribed class of person; or

(g) the Secretary—

as the case requires.

(3) The relevant sentencing court may hear and determine the charge for the offence under section 83AB, 83AC, 83AD, 83ADA or 83ADB without a jury and in accordance with Chapter 3 of the Criminal Procedure Act 2009, subject to any modifications as set out in the rules of the relevant sentencing court.

Section 83AM applies if the original suspended sentence was made by the Magistrates’ Court. It provides:

(1) If in a proceeding before the Supreme Court or the County Court (the relevant sentencing court)—

(a) an offender is before the relevant sentencing court and is convicted or found guilty of the offence that is the subject of the proceeding; and

(b) the conviction or finding of guilt constitutes a contravention of an order (the original order) under this Act applying to the offender, in respect of which a charge-sheet may be filed for an offence under section 83AB, 83AC, 83AD, 83ADA or 83ADB; and

(c) the original order was made by the Magistrates' Court—

despite anything to the contrary in this Division, the relevant sentencing court may proceed to hear and determine the proceeding for the offence under section 83AB, 83AC, 83AD, 83ADA or 83ADB as if it were an unrelated summary offence within the meaning of section 243 of the Criminal Procedure Act 2009.

(2) Section 243 of the Criminal Procedure Act 2009 applies to the proceeding for the offence under section 83AB, 83AC, 83AD, 83ADA or 83ADB—

(a) subject to any modifications as set out in the rules of the relevant sentencing court; and

(b) with any other necessary modifications.

Other matters

The original sentencing court should deal with a contravention of a suspended sentence imposed by the Court of Appeal (s48Q).

The court should not be involved in the decision whether to prosecute for a contravention of a suspended sentence (Sanerive 23/6/1995 CA Vic at 36).

Last updated: 1 September 2014

See Also

19.6.8 - Contravention of order - occurring from 16 January 2012

19.6.8.1 - Basis for contravention proceedings

19.6.8.2 - Features of contravening offence

19.6.8.3 - 'Offence punishable by imprisonment' in s83AB(1)

19.6.8.4 - Commencement of contravention proceedings

19.6.8.6 - Procedure for bringing offender to court for contravention proceedings

19.6.8.7 - Time limits for commencing contravention proceedings

19.6.8.8 - Sentence for contravention offence

19.6.8.9 - Sentencing options following contravention