A suspended sentence is an option available to the courts under section 12 of the Crimes (Sentencing Procedure) Act in NSW. It involves the court taking 3 steps:
1. Identify if there is any alternative to a term of imprisonment. If not;
2. Decide how long a prison term they would impose then;
3. Consider if there is any alternative available to full time goal.
If the court decides that they would impose a term of 2 years (or less) then the alternative of a suspended sentence becomes available.
Being sentenced under section 12 means that you have been sentenced to a term of gaol but, provided that you enter a Good Behaviour Bond, the sentence is suspended for the entire period – so you don’t actually go to gaol!
If you do not breach your Good Behaviour Bond for the whole time it is in place then the matter is considered finalised.
What happens if I breach a suspended sentence?
If you breach your Good Behaviour Bond in any way (by not meeting the conditions of the Bond; committing another offence; ignoring reasonable directions of a Community Corrections Officer [if your Bond is supervised] etc.) then you will be called on to come back before the Courts.
If you are called to appear you must attend court, otherwise a warrant for your arrest may be issued.
Generally, when dealing with breaches of Good Behaviour Bonds, courts have fairly wide discretion in what they can do.
However, if the Bond is one made under section 12 (Suspended Sentence) the court is restricted in their options.
The Bond must be revoked by the court unless it is satisfied that either the breach is a ‘trivial’ one or that there exist ‘good reasons’ that allow them to deal with the breach in another way, such as no action.
What is a trivial matter? What are good reasons?
There has been no definition given for ‘trivial’ but it would be taken at its common meaning so, a call up for breach is likely to involve a non-trivial breach and therefore, to avoid a gaol sentence, there would need to be good reasons presented to the court for not revoking the bond.
In a recent case (Binge, Raymond v DPP  NSWDC 288 at 29) the Court held that it was not only the actual circumstances at the time of the breach that must be considered (as had previously been the case – DPP v Cooke [20070 NSWCA 2) but that other factors could be considered such as the events leading up to the breach.
If the Court finds that the breach of the Bond is not a trivial matter and they cannot find any ‘good reasons’ not to revoke the bond then the bond will be revoked and you will be re-sentenced for the offence.
This re-sentencing will, in all likelihood, involve a term of full time imprisonment.
If the remainder of time on the bond is less than six (6) months the Court will not be able to set a non-parole period and you will have to spend the full 6 months in gaol.
If it is more than 6 months then the original rules for sentencing apply and the court must, if sentencing you to full time in gaol, set a non-parole period that is 2/3 of the full term of the sentence.
However, as the original sentencing rules apply, the court may find ‘special circumstances’ that allows them to reduce the non-parole period.
Such special circumstances include the possibility of a longer period of parole to allow for a better chance of rehabilitation; that the offender is a young person; a lack of criminal record; it would be first time in custody, the offender has a serious illness or disability; that the period in gaol would be spent in protection or other considerations that the court may take into account.
Because there are so many variables and so many matters that may be argued to the Court it is in your best interest that, if you have been called up for a breach of a Suspended Sentence, you contact a good criminal defence lawyer for their assistance in either keeping you out of gaol or reducing the length of time you will have to spend in gaol