27Breach of order suspending sentence

### 27 Breach of order suspending sentence > > (1)  [*\[Section 27 Subsection (1) substituted by No. 76 of 2009, s. 32, Applied:01 Jan 2011\]*](/view/html/inforce/2011-01-01/act-2009-076#GS32@Hpa@EN) If it appears to an authorised person that, during the period an order suspending a sentence of imprisonment is in force in relation to an offender, the offender has breached a condition of the suspended sentence, the authorised person may apply to the court, which made the order suspending the sentence of imprisonment, for an order under this section. > > > (2)  [*\[Section 27 Subsection (2) amended by No. 76 of 2009, s. 32, Applied:01 Jan 2011\]*](/view/html/inforce/2011-01-01/act-2009-076#GS32@Hpb@EN) The authorised person must give notice of the application under [subsection (1)](#GS27@Gs1@EN) to the offender. > > > (3)  [*\[Section 27 Subsection (3) substituted by No. 20 of 2013, s. 85, Applied:20 Jun 2013\]*](/view/html/inforce/2013-06-20/act-2013-020#GS85@EN) The court may issue a warrant for the arrest of the offender if – > > > > > > (a) the offender fails to appear at the hearing of the application; or > > > > > > > (b) the court is satisfied that reasonable efforts to give the offender notice of the application have been made but those efforts have been unsuccessful. > > > (4)  [*\[Section 27 Subsection (4) substituted by No. 76 of 2009, s. 32, Applied:01 Jan 2011\]*](/view/html/inforce/2011-01-01/act-2009-076#GS32@Hpc@EN) If a court finds an offender guilty of an offence punishable by imprisonment committed during the period an order suspending a sentence of imprisonment is in force in respect of the offender (in this section called the "**new offence**"), an authorised person – > > > > > > (a) may make an oral application to the court, while the offender is before the court in relation to the new offence, for an order under this section; and > > > > > > > (b) is to provide the offender in writing with the grounds for the oral application, if directed to do so by the court. > > > (4A)  [*\[Section 27 Subsection (4A) inserted by No. 76 of 2009, s. 32, Applied:01 Jan 2011\]*](/view/html/inforce/2011-01-01/act-2009-076#GS32@Hpc@EN) If an application is made under [subsection (4)](#GS27@Gs4@EN) to a court that is not the court that imposed the suspended sentence on the offender, the court hearing the application may do either of the following: > > > > > > (a) deal with the application under this section; > > > > > > > (b) adjourn the application to the court that imposed the suspended sentence and either grant the offender bail or remand the offender in custody. > > > (4B)  [*\[Section 27 Subsection (4B) inserted by No. 76 of 2009, s. 32, Applied:01 Jan 2011\]*](/view/html/inforce/2011-01-01/act-2009-076#GS32@Hpc@EN) If, on the hearing of an application under this section, the court is satisfied that the offender has been found guilty of a new offence, the court must activate the sentence of imprisonment that is held in suspense and order the offender to serve it. > > > (4C)  [*\[Section 27 Subsection (4C) inserted by No. 76 of 2009, s. 32, Applied:01 Jan 2011\]*](/view/html/inforce/2011-01-01/act-2009-076#GS32@Hpc@EN) If the court is of the opinion that an order under [subsection (4B)](#GS27@Gs4B@EN) would be unjust, the court may instead – > > > > > > (a) activate part of the sentence that is held in suspense and order the offender to serve it; or > > > > > > > (b) order that a sentence (in this section called the "**substituted sentence**") take effect in place of the suspended sentence; or > > > > > > > (c) by order, vary the conditions on which the execution of the sentence was suspended, including extending the period of suspension in the order to a day no later than 12 months after the day the offender was found guilty of the new offence; or > > > > > > > (d) make no order in respect of the suspended sentence. > > > (4D)  [*\[Section 27 Subsection (4D) inserted by No. 76 of 2009, s. 32, Applied:01 Jan 2011\]*](/view/html/inforce/2011-01-01/act-2009-076#GS32@Hpc@EN) If the court decides not to exercise the power referred to in [subsection (4B)](#GS27@Gs4B@EN) it must state the reasons for so deciding. > > > (4E)  [*\[Section 27 Subsection (4E) inserted by No. 76 of 2009, s. 32, Applied:01 Jan 2011\]*](/view/html/inforce/2011-01-01/act-2009-076#GS32@Hpc@EN) If, on the hearing of an application under this section, the court is satisfied that the offender has breached, without reasonable excuse, a condition of the suspended sentence other than by committing a new offence, the court may – > > > > > > (a) activate all or part of the sentence that is held in suspense and order the offender to serve it; or > > > > > > > (b) order that a sentence (in this section called the "**substituted sentence**") take effect in place of the suspended sentence; or > > > > > > > (c) by order, vary the conditions on which the execution of the sentence was suspended, including extending the period of suspension in the order to a day no later than 12 months after the day the offender was found guilty of the breach; or > > > > > > > (d) make no order in respect of the suspended sentence. > > > (5)  A substituted sentence may be any sentence that the court could have imposed on the offender had it just found the offender guilty of the offence in respect of which the suspended sentence was imposed, but no greater term of imprisonment is to be imposed by the substituted sentence than was imposed by the suspended sentence. > > > (6)  If a court orders an offender to serve a term of imprisonment that had been held in suspense, the term of imprisonment must, unless the court otherwise orders, be served – > > > > > > (a) immediately; and > > > > > > > (b) cumulatively with any other term of imprisonment previously imposed on the offender by that court or any other court. > > > (6A)  [*\[Section 27 Subsection (6A) amended by No. 76 of 2009, s. 32, Applied:01 Jan 2011\]*](/view/html/inforce/2011-01-01/act-2009-076#GS32@Hpd@EN) [*\[Section 27 Subsection (6A) inserted by No. 25 of 2002, s. 6, Applied:01 Oct 2002\]*](/view/html/inforce/2002-10-01/act-2002-025#GS6@EN) If, under [subsection (4B)](#GS27@Gs4B@EN) , [(4C)](#GS27@Gs4C@EN) or [(4E)](#GS27@Gs4E@EN) , a court orders a sentence to take effect – > > > > > > (a) the sentence is taken to be a sentence imposed on the offender as if the court had just found the offender guilty of the offence in respect of which the suspended sentence was imposed; and > > > > > > > (b) [section 17](#GS17@EN) applies to that sentence. > > > (6B)  [*\[Section 27 Subsection (6B) amended by No. 76 of 2009, s. 32, Applied:01 Jan 2011\]*](/view/html/inforce/2011-01-01/act-2009-076#GS32@Hpe@EN) [*\[Section 27 Subsection (6B) inserted by No. 25 of 2002, s. 6, Applied:01 Oct 2002\]*](/view/html/inforce/2002-10-01/act-2002-025#GS6@EN) If, under [subsection (4C)](#GS27@Gs4C@EN) or [(4E)](#GS27@Gs4E@EN) , a court orders that a substituted sentence is to take effect, [section 17](#GS17@EN) applies to the substituted sentence. > > > (7)  [*\[Section 27 Subsection (7) substituted by No. 76 of 2009, s. 32, Applied:01 Jan 2011\]*](/view/html/inforce/2011-01-01/act-2009-076#GS32@Hpf@EN) If it is not possible for the court to immediately deal with an application under [subsection (1)](#GS27@Gs1@EN) or [(4)](#GS27@Gs4@EN) in respect of the offender, the court may – > > > > > > (a) adjourn the proceedings; and > > > > > > > (b) either grant the offender bail or remand the offender in custody.