About Breach Action

Introduction

This topic provides information about taking breach action in relation to CD.

Situations for breach action

The primary situations when breach action should be taken are:

• if non-compliance continues after imposition of sanctions, e.g. being ten minutes late for curfew period on an ongoing basis
• for single instances of non-compliance of a more serious nature, e.g. unauthorised absence for over 30 minutes, without a reasonable excuse, or
• if the offender has been informed by the probation officer that any further non-compliance will result in breach action, then this action must be taken in the event of further non-compliance.

Important: Breach action should not be used for first time minor instances of non-compliance.

Grounds for breach action

The probation officer can take breach action if the offender fails, without reasonable excuse, to:

• comply with any condition of a sentence of CD, or
• report when required to do so.

Timeframe

All information relating to a breach of CD should be laid with the court within two weeks of the breach, or within one week, if the offender is on the offender warning system (OWS). If there are concerns about the safety of the community, or any individual, it may be necessary to take more urgent action.

Legislative reference: Under section 14 of the Summary Proceedings Act 1957 , the breach charge must be laid within six months of the offence date.

Who may take breach action

Any CPPS staff member who has the appropriate authorisation may take breach action/lay information. A senior community work supervisor must have received formal delegation for this purpose before laying information.

Service manager oversight

As with all other legal enforcement action taken, breach action should be checked by the service manager.

Record keeping

All details of and reasons for the breach action should be recorded in IOMS casenotes. This should include details of any discussion regarding the breach action with the service manager or senior probation officer.

Serving the summons

Before a CPPS staff member can serve a summons on the offender, the following must occur:

• a district court judge or registrar must authorise the staff member
• the service manager must ensure the staff memeber is issued with a valid letter to authorise them to that effect.

Legislative reference: Section 23(1)(c) Summary Proceedings Act 1957

Breach documents

The following information must be provided to the offender when serving the summons:

• summary of facts
• information sheet for offenders about breaches
• criminal history list.

Legislative reference: Section 12 (1) Criminal Disclosure Act 2008.

If the offender's whereabouts is unknown

If the offender's whereabouts is unknown when the breach is laid, then a warrant to arrest (WTA) should be requested from the court.

Reference: Volume 3B, Part IV, Chapter 7, Having Offenders Arrested.

Withdrawing a breach

Once a breach charge has been laid, it should not be withdrawn without careful consideration, including consultation with the service manager.

When making a decision whether or not to withdraw a breach charge, consideration should be given to the:

• risk to the community
• the integrity of the sentence, and
• the integrity of the service.

If requested in open court by either a judge or lawyer to withdraw the breach, the court officer should request a short remand, and discuss the matter with the service manager.

Note: A breach conviction is noted on the offender's convictions history and as such provides important information regarding patterns of non-compliance. This information can impact on future sentencing recommendations and management of community-based sentences.

Unprocessed breaches

If a breach remains unprocessed five years after the charge was laid in court, it must be withdrawn. Ensure that any WTA is also formally withdrawn. Areas are to ensure a bring-up system is in place enabling this to occur.

This can happen, for instance, if the offender absconds and avoids coming to the attention of the police for five years.

Note: If the probation officer has been made aware that an offender has died, then following confirmation of the death the breach should be withdrawn.