Sentencing Act 1997, s 27

Respondent: Tasmanian Aboriginal Legal Services

Judgment Number: [2026] TASSC 10

1. By application filed 8 January 2026, the applicant applied for an order under the Sentencing Act 1997, s 27(1), following breaches by the respondent of a condition of a suspended sentence. On 24 September 2024, the respondent was sentenced by the Supreme Court to imprisonment for 15 months from 28 May 2024. The balance of the term, about 11 months, was suspended for 18 months. By operation of the Sentencing Act, s 24(1), the order was subject to the condition that the respondent not commit another offence punishable by imprisonment during the period the order was in force.
2. The respondent accepts that he breached the order, while it was in force, by committing offences punishable by imprisonment. However, the current application should be permanently stayed because a different application under s 27, made on identical grounds, was already judicially determined by a different court. A second application is therefore an abuse of process.
3. The Sentencing Act, s 27(1) provides that an application alleging breach of a condition of a suspended sentence may be made to the court which made the order suspending the sentence of imprisonment. In this case, that is the Supreme Court. However, s 27(4) permits an application concerning a breach to be made to a different court which finds an offender guilty of an offence punishable by imprisonment committed while the order was in force. Such an application may be made orally: s 27(4)(a).
4. On 10 April 2025, the respondent pleaded guilty in the court of petty sessions to a series of offences committed in October, November and December 2024, all of which were punishable by imprisonment and committed soon after the suspended sentence was imposed:
   • on 18 October 2024, on complaint 11935/2024, unlawfully possessing a dangerous article in a public place;
   • on 21 October 2024, on complaint 13169/2024, stealing;
   • on 16 November 2024, on complaint 13365/2024, unlawfully possessing a dangerous article in a public place;
   • on 21 November 2024, on complaint 230/2025, contravening the conditions of a bail notice;
   • on 23 November 2024, on complaint 230/2025, contravening the conditions of a bail notice and on complaint 231/2025, unlawfully possessing a thing used for the administration of a controlled drug;
   • on 27 November 2024, on complaint 452/2025, stealing;
   • on 30 November 2024, on complaint 453/2025, stealing and contravening the conditions of a bail notice;
   • on 15 December 2024, on complaint 1324/2024, aggravated burglary and stealing;
   • on 17 December 2024, on complaint 13584/2024, stealing, two counts of contravening the conditions of a bail notice and unlawful possession of property;
   • on 20 December 2024, on complaint 13801/2024, breaching a condition of bail; and
   • on 25 December 2024, on complaint 454/2025, stealing and trespass.
5. The respondent's pleas of guilty followed a contest mention hearing conducted by a magistrate. One purpose of a contest mention hearing is so that a person charged with an offence or offences to be dealt with in that jurisdiction may receive some indication of the likely sentence if a plea or pleas of guilty were entered. On receipt of that indication, an accused is given some certainty of outcome. If the indication results in a change of plea, and a sentence is imposed on the basis of the indication, then the administration of justice in a busy court is facilitated by timely and efficient disposition of matters without the need for a hearing.
6. The contest mention hearing conducted with the respondent concerned the offences to which I have referred. However, in the course of the hearing, the prosecutor also made oral application to the magistrate for an order under s 27 of the Sentencing Act concerning the suspended sentence imposed on 24 September 2024. Because the application was made to a court which was not the court that imposed the suspended sentence, the magistrate had the power to either deal with the application, or adjourn the application to the court which imposed the sentence: s 27(4A).
7. The suspended sentence imposed by this Court on 24 September 2024 was for armed robbery and resisting a police officer. On 22 January 2024, the respondent, when he was 18 and heavily affected by drugs and alcohol, robbed a convenience store near the Hobart CBD. He produced a hammer and threatened to bash the young shop assistant and take the contents of the till unless he was given vapes. When arrested he violently resisted the police. The comments when passing sentence included the following:

"... you should be left in no doubt that if you commit another offence, which includes any type of offence punishable by imprisonment, you will very likely be back into prison again. So the choice is yours as to what happens. To assist you I will impose a condition on the suspended sentence that you be supervised by a probation officer. That is not only designed to punish you and to keep an eye on you but to help you address the issue with drugs and alcohol and help you with employment and other programs."

1. Notwithstanding those comments, the respondent began to re-offend almost immediately. Some of the offences he committed were shoplifting and breaches of bail conditions that he not enter particular retail premises from which he had been stealing. On a number of occasions he breached other area restrictions on his bail. On one occasion he was found carrying a large knife and on another occasion a hammer. Those were offences relevant to the circumstances of the armed robbery. Without wishing to understate the seriousness of that offending, the aggravated burglary warrants particular mention. On 15 December 2024, the respondent and another person used an axe to force their way into a private home in suburban Hobart. They searched through the personal property of the owner, by inference looking for things to steal. When the alarm was activated they ran off and jumped the fence.
2. An audio visual recording of the proceedings before the magistrate was tendered by the applicant on the hearing of the application to this Court. The respondent's offences were concisely described to the magistrate. His Honour was made aware of the suspended sentence and given some details of the crime for which it was imposed. The sentencing remarks to which I have referred were not mentioned to by the prosecutor. The respondent's counsel explained that the respondent had already been in custody for some time, had support in the community and still had good prospects of rehabilitation. They were all matters relevant to the sentence to be imposed for the charges the respondent faced. Timely disposition of those charges was in the interests of justice. When giving the sentence indication, the learned magistrate suggested that he would impose a term of imprisonment of seven months from 10 January 2025, three months of which would be conditionally suspended for three years. His Honour announced, simply and without further explanation, that he would not activate the suspended sentence. When those indications were given, both the prosecutor and the respondent accepted what was proposed, the respondent changed his plea and was sentenced accordingly. Although the magistrate had announced that he would not activate the suspended sentence, no order on the application was made. A number of alternative courses were open short of activating the suspended term: s 27(4C). The only conclusion reasonably open is that the magistrate decided, in accordance with s 27(4C)(d), to make no order in respect of the suspended sentence.
3. It might be said that, in the circumstances, deference to the superior court which imposed the suspended sentence for an armed robbery shortly before the breach offences warranted the application for activation of the suspended term being returned to this Court. Moreover, there was no occasion for the court of petty sessions to re-exercise the sentencing discretion. The combined result of s 27(4B) and (4C) was that the court dealing with the application was required to activate the suspended part of the sentence unless of the opinion that such an order would be unjust. The magistrate expressed no finding that he had formed the opinion that activation of the suspended sentence was unjust. That issue was not mentioned by the prosecutor, defence counsel or the magistrate. That does not necessarily mean that the magistrate did not consider it, but no submissions or reasons were directed to the question.
4. Those comments aside, there could be no question that an application was made, orally, under s 27(4)(a) to the court of petty sessions for orders under s 27(4B) or (4C) on precisely the same basis as the application now made to this Court. The application was determined. There was no appeal against the magistrate's decision to not activate the suspended sentence or the failure to make some order other than no order at all. Despite the absence of the determination required by s 27(4C), such an appeal was unlikely when the prosecutor acquiesced in the course which was taken. An application, having been determined once, cannot be made again on the same grounds. The respondent should not be twice put in jeopardy for activation of the suspended sentence or other order under s 27(4C) based on identical conduct. A second application is an abuse of process. The proper order is that the application filed 8 January 2026 is permanently stayed, and I make that order.
5. I make no criticism of the applicant for having made this application. The circumstances outlined in these reasons were not readily apparent until the application came to be determined and further investigations were made. Moreover, nothing in these reasons should be taken to suggest that an application under s 27 based on a different claimed breach or breaches while the sentencing order made by this Court on 24 September 2024 was in force may not be properly made.