Laying a Breach Charge

Steps to take

Follow these steps to lay the breach charge.

Step	Action
1	To lay the breach charge, swear or affirm 'information' at court.
2	Serve the summons issued on the offender (if authorised to do so and in possession of a letter of authorisation) ensure the offender understands the charges and the requirement for their appearance in court.
3	When serving the summons, also issue the offender with the other breach documents, including: summary of facts information sheet for offenders about breaches criminal history list.
4	Return the served summons to court keeping a copy on the breach file. Note: When the summons cannot be served: swear an affidavit of proof of service at court obtain a photocopy of the sworn affidavit from the registrar place the documents in the breach file
5	If unable to locate the offender for service of the summons: advise the court prepare an affidavit seeking a warrant in lieu of summons. Reference: Volume 2, Part VII, Chapter 6 Having Offenders Arrested (please refer to the related links section on this page).
6	Just before the hearing date, prepare on-strength information in IOMS for the court servicing team, providing a summary of the offender's progress with the sentence to date, whether satisfactory or unsatisfactory. Note: The on-strength report may be read out by the court officer or handed up to the judge. It should be: succinct concise grammatically correct free of CPPS jargon.
7	Forward the report to the court servicing team prior to the court appearance date (at the very latest on the day before the hearing).

Serving the summons

The summons may be served to a family member of the offender if they:

appear to be over the age of eighteen years
reside with the offender.

The other breach documents (summary of facts, information sheet for offenders and criminal history list) must be given to the offender only.

If the summons is being served to a family member, the other breach documents must be delivered to the offender by registered post to their last known address.

Note: Family member means the offender's father, mother, wife, husband, civil union partner, de facto partner, child, brother, sister, half-brother or half-sister.

Legislative reference: Section 24(1)(b) Summary Proceedings Act 1957.

Attempts to serve the summons

When serving a summons and other breach documents, there must be a minimum of two attempts to serve the summons, on different days, and at different times of the day. Specific details of all attempts to serve the summons must be recorded in IOMS casenotes.

Unable to serve the summons as offender's whereabouts unknown

It may not always be possible to serve the summons and other breach documents because the offender's whereabouts may be unknown.

Example: The probation officer or senior community work supervisor has visited the last known address, has verified the offender no longer resides at this address, and no new address is known.

If satisfied that the offender cannot be located, the probation officer should:

advise the court
prepare an affidavit seeking a warrant in lieu of service (WILS).

Unable to serve the summons due to safety concerns

It may not always be possible to serve the summons and other breach documents because there may be safety concerns.

Examples:

The probation officer or senior community work supervisor is aware the offender will be in opposition to the enforcement action, and the offender:
- is known to be violent
- has a history of assaulting CPPS staff.
Other people residing at the address are known to be violent.

In these circumstances the service manager must be advised before any attempt is made to serve the summons and other breach documents.

Alternative action to serve the summons and disclose the other breach documents may include:

serving the summons and other breach documents on the offender at the service centre
two staff members visiting the address
using registered post.

If the risk issues are considered to be too high, then the probation officer should:

advise the court
prepare an affidavit seeking a warrant in lieu of service.

Legislative references:

24(1)(c) Summary Proceedings Act 1957.

12 (1) Criminal Disclosure Act 2008.

Record keeping

Details regarding all attempts to serve the summons must be recorded in IOMS casenotes. This should include the:

date
day of the week
time of the day.

IOMS casenotes should also record the rationale for decisions made to seek a warrant, including discussion with the service manager.

It is normal practice to create a court file to keep all relevant information for the breach.

Updating status of breach action

Once the charge has been laid, update the status of the breach action in the 'breach' tab of the sentence order management screen in IOMS.

Continue to update the status in this way as the charge is processed through the court system.

Request for outcome

The probation officer should provide the court officer with information about what penalty they are seeking, and include sufficient information to support this.

This is usually provided by way of an on-strength report.

When considering HD or further CD

If considering HD or CD as an outcome, a pre-sentence report will be required following the breach conviction. In these circumstances a remand will be required to enable the appropriate enquiries to be undertaken.

Requests for further information

The offender has a right to apply for further information under section 12(2) of the Criminal Disclosure Act 2008. This information may include:

names of any witnesses the prosecutor intends to call
a list of the exhibits
a copy of all records of interviews with the defendant
a copy of any records of evidence produced by a testing device that contain relevant information.

Note: The offender must make their request in writing as soon as possible.

The legislation contains more information and must be consulted before disclosure takes place.

Legislative reference: Criminal Disclosure Act 2008.

Previous Next Show Contents

| | | | | | | | | | | | | | | |