This procedure relates to breaching youth justice court orders during the operational period of the order
When to use this procedure
When a young person has re-offended or has been non-compliant with the conditions of their youth justice order.
What else you need to know
Practice context and legislation
- Youth justice workers have statutory responsibility to monitor a young person’s compliance with the core and special conditions of a court order. The decision to breach a young person's order must be made in consultation with line management.
- Under the Children, Youth and Families Act 2005, a young person can be returned to court if it appears they have not complied with the conditions or amended conditions of their probation order (s. 384), youth supervision order (s. 392) or youth attendance order (s. 408).
- In most cases, the warning process should be implemented before breach procedures commence. If the youth justice team manager is satisfied all reasonable steps have been taken to help the young person comply with their order, the Assistant Director / Manager Individual and Family Support or Youth Justice Senior Practice Adviser may authorise the initiation of breach action.
- Breach proceedings can be actioned on two grounds:
- non-compliance with general, special or amended conditions of the order
- further offences committed during the order for which the young person has been found guilty or intends to plead guilty to.
- The Assistant Director / Manager Individual and Family Support and Youth Justice Senior Practice Adviser has the delegation to authorise breach action to return a young person to court, after considering youth justice principles of diversion and rehabilitation, as well as the need to engender public support and confidence.
Roles and key tasks
- Case manager
- Team leader / team manager
- Assistant Director / Manager Individual and Family Support
- Youth Justice Senior Practice Advisor
- Implement the warning process.
- Initiate breach process if appropriate, within necessary timelines and in consultation with team leader.
- Prepare and serve documentation to have breach listed.
- Present the breach in court.
- Prepare a breach report.
- Liaise with legal representatives.
- Liaise with line management and consult with Youth Justice Senior Practice Adviser as required.
Team leader / team manager
- Consult on breach process and endorsement of breach report.
- Issue warnings as required.
Assistant Director / Manager Individual and Family Support
- Provide oversight, direction and monitoring of the area youth justice service.
- Exercise delegated responsibility to authorise a breach.
- Provide case consultation for young people exhibiting high-risk behaviours.
Youth Justice Senior Practice Advisor
- Provide case consultation in relation to court recommendations, breaches and particularly for high-risk young people.
- Exercise delegated responsibility to authorise a breach. This should occur subject to local area agreements between Assistant Director / Manager Individual Family Support and the Senior Practice Advisor.
The procedure in detail
- The sentencing hierarchy for breach action
- Warnings for non-compliance
- Timelines for breach by non-compliance
- Timelines for breach by reoffending
- Breach by reoffending and non-compliance
- Matters to take into account when considering a breach
- Lodging a breach before a charge is proven
- Lodging a breach on the day new charges are proven
- Manager’s warning in lieu of breach action
- Authorisation to breach an order
- CRIS administration
- Variation or revocation of an order
- Notice to appear before the court
- Appropriate dates for the breach hearing
- Listing the breach
- Serving the notice to appear before the court
- Young people under the age of 15 years
- Affidavit / declaration of service
- Commencement of breach proceedings
- Presenting a breach
- Legal representation for young people
- When a young person is in custody
- Preparing and submitting the breach report
- Making a recommendation
- Documentation for court
- Release of youth justice reports to police
- Breach outcome
- Breach of a confirmed order
- Expired court orders
- Warrant outstanding
- Record breach outcome in CRIS
The sentencing hierarchy for breach action
There is greater capacity for discretion in managing the breach of a young person on a probation order, as the lowest-tariff supervised order, than on any other supervised community order including parole.
Warnings for non-compliance
The warning process demonstrates to the court that all reasonable efforts have been made to help the young person meet their order obligations.
If the young person is a serious offender and the risk of further offending is high, the youth justice team manager may decide to initiate breach proceedings early in the warning process.
Refer to the procedure for ‘Warning process for community based orders’ for further information.
Timelines for breach by non-compliance
If the breach is in relation to non-compliance with the conditions of an order, breach action must be commenced within 14 working days of the alleged breach.
As non-compliance can occur over an extended period, the timelines for lodging the breach may not always be clear.
In many cases, the breach date is the date of the final non-compliance that led to the decision to commence breach action, such as the date of non-attendance at a manager’s warning. However, this may not always be the case, so consultation with line management is important.
The decision to initiate breach action occurs only after all reasonable attempts to establish the young person’s compliance with the order have been unsuccessful.
Timelines for breach by reoffending
Where the breach results from a proven charge for an offence committed during the active period of an order, breach action must be started no later than three months after the finding of guilt of the new charge.
Breach by reoffending and non-compliance
A young person may be returned to court for a breach of an order by both reoffending and non-compliance.
In these cases, all documentation should cite both reasons for the breach.
Matters to take into account when considering a breach
In deciding to proceed with breach action of an active order, consideration must be given to the following issues:
- assessment of risk
- the young person's capacity to comply with the expectations of the order
- the general attitude and response of the young person to the order and/or the warning process
- any positive traits or responses displayed by the young person that can be drawn on to help them to complete their order
- any circumstances that might have had an impact on the young person's behaviour or non-attendance
- the severity of offences relating to the current order
- any relevant sentencing comments by sentencing magistrate
- any further charges.
Specifically for non-compliance:
- the circumstances/consistency of non-compliance
- the young person’s response to the warning process
- any known reasons contributing to the non-compliance.
Specifically for reoffending:
- the circumstances/seriousness of the new charges
- the court outcome of new the charges (this may not be available if breach proceeding is to be listed for the same day).
Lodging a breach before a charge is proven
It is often preferable to both the young person and youth justice to have the breach heard on the same day that any new charges are found proven.
This should only occur if the young person and their legal representative have indicated a plea of guilty will be entered for the new charges. When this is confirmed, a breach report can be prepared before the hearing.
It is essential that the breach report is only handed to the magistrate or judge after the young person has been found guilty of a breach.
A finding of guilt in relation to further offending alone does not necessarily indicate a finding of guilt for a breach.
The onus is on the youth justice worker prosecuting the breach to verbally indicate to the court the reasons for the breach, and upon a finding of guilt, the breach report can then be tendered to the court.
Lodging a breach on the day new charges are proven
Consent must be sought from the young person and their legal representative to waive the normal listing timelines and to have the breach heard on the same day that the new charges are found proven.
Seek approval from line management before filing a breach of an order in these circumstances.
Manager’s warning in lieu of breach action
A breach by manager’s warning can be requested in lieu of a breach of an order.
The following matters must be considered:
- the severity of the offence
- whether the young person has made positive progress and complied with the requirements of the order
- the stage of the order
- if the young person is responsive to youth justice directives.
The decision to conduct a manager’s warning in lieu of taking breach action is at the discretion of the Assistant Director / Manager Individual and Family Support in consultation with the team manager and Youth Justice Senior Practice Adviser.
Additional considerations may include:
- any directions made by the sentencing magistrate regarding breach action
- the severity of offences relating to the current order
- any escalation in offending
- whether the offences were against a person.
Authorisation to breach an order
Consult with team leader on the decision to proceed with breach action.
If the decision is not to proceed with a return to court, the reasons must be documented in CRIS.
If the decision is to proceed with a return to court, discuss recommendations regarding the breach outcome.
Prepare a ‘Request for authority to return sentencing order to court’ (form available in CRIS) detailing the reasons for the breach.
Forward the application to the Assistant Director / Manager Individual and Family Support, or Youth Justice Senior Practice Advisor, for endorsement depending on agreed local area arrangements.
Record all actions and decisions in CRIS.
The date of the commission of the offence is recorded as the offence date.
The date of commencement of the breach is the date the notice to appear before the court is issued.
Variation or revocation of an order
If it is determined not to proceed with breach action, it may be appropriate to either apply to vary or revoke the order.
Consult with line management if this is an option being considered.
Notice to appear before the court
On receiving signed authority to breach the order, complete the 'Notice to appear before the court' (form available in CRIS).
The 'Notice to appear before the court' should contain the following information:
- court reference number
- young person’s details
- location of the court and the hearing date
- name and address of the informant (the youth justice worker)
- details relating to grounds for the application
- name of the youth justice worker lodging the notice to appear before the court
- which court the breach will be heard.
Complete separate notices to appear before the court applications if multiple orders are being breached.
Appropriate dates for the breach hearing
Contact the court to discuss an appropriate sitting date for the breach to be heard.
Breach proceedings should be heard by the magistrate who issued the original order.
If that magistrate is not available, the legislation allows for any other magistrate to hear the matter.
The young person and their solicitor must give consent if the original magistrate is still in office, but for some reason another magistrate will hear the matter. Record this consent in a clearly titled case note in CRIS.
Where possible, have breach proceedings listed on the same day as the offence/s that breach the order are to be heard.
Negotiate with the appropriate court for a hearing date suitable to both the magistrate and youth justice.
Listing the breach
List the breach by having the registrar at the court sign the notice to appear.
Check that the court date is printed at the bottom of the form.
Ensure you have two original signed documents – one to serve on the young person and another to be later placed on the court file.
Serving the notice to appear before the court
Allow three weeks so that the notice to appear before the court can be served on the young person before the court hearing.
The Act requires that the notice be served, by post, not less than 14 working days, or in person not less than five days before the court hearing.
Attempt to personally serve the young person with the notice to appear.
If this cannot be done:
- send a copy by registered post to the young person’s usual, or last known address
- leave a copy with a person older than 16 years at the young person’s usual or last known address.
If the young person’s whereabouts are unknown, make all attempts to locate them before sending notification to the young person’s last known address.
Send a letter to the young person informing them of the breach proceedings, the reason for the breach and the date they must attend court.
Encourage the young person to keep reporting despite the breach action.
Tell them that their response during the time leading up to the court appearance will be noted in the breach report.
Young people under the age of 15 years
When the young person is aged under 15 years the notice to appear before the court must be served on the young person’s parents or guardian.
Inform them of the reason for breaching the young person’s court order.
Affidavit / declaration of service
Once the notice to appear before the court has been served, complete an affidavit or declaration of service (form available in CRIS) detailing how the letter and notice to appear before the court were given to the young person.
An affidavit or declaration of service can be sworn before a court registrar or justice of the peace.
Ensure that the court where the breach is listed retains the original notice to appear before the court and affidavit.
Retain copies for the young person’s file and for tendering to the court if necessary.
Record all details on the file in CRIS.
Commencement of breach proceedings
All breach proceedings must commence in the children’s court.
- breaches of orders that have been imposed by a superior court
- breaches of orders by people who are aged 19 years or over.
Outcomes of breaches may be issued in alternative jurisdictions, depending on the offences and/or age of the young person.
Presenting a breach
In most cases, it is the responsibility of the youth justice case manager to present the breach in court.
This role may also be undertaken by the court advice service worker or their delegate.
Ask a departmental legal representative to prosecute the breach if it is complex, is being heard in a higher court or is adjourned for contest.
Refer to procedure for ‘Prosecuting a breach in court’ for further information.
Legal representation for young people
A young person must be legally represented for a breach of a community based youth justice order.
The case manager should ensure that the young person is aware of this and, if required, assist them to access legal representation.
See procedure on ‘Legal representation for further information’.
When a young person is in custody
Complete a ‘Form 15: Order to bring a person before a court, including Coroner’s Court’ and arrange for it to be signed by a magistrate.
Form 15 is the formal documentation required to bring a person before the court. It can be found on CRIS.
Tell youth justice centre staff of the forthcoming breach proceedings and fax a copy of the signed order to the assigned custodial worker.
Preparing and submitting the breach report
Prepare the breach report in accordance with CRIS requirements and obtain appropriate endorsement.
If the breach is for reoffending, handed up the report to the magistrate only after the new charges have been found proven.
If the breach is for non-compliance, the report should be submitted to court prior to the date the breach is listed.
Making a recommendation
Legislation states that youth justice must recommend an appropriate sentence for the breach.
Consider group conferencing as a potential recommendation for a breach. Refer to procedure for ‘Assessing suitability for group conferencing’ for further information.
If it is not possible to make an appropriate recommendation, the breach report should reflect why this is the case.
Refer to the procedure for ‘Recommending a court order for more information’.
Documentation for court
Organise four copies each of the following documents for court:
- the court order being breached
- an Internal Bureau Records police check (obtain from police if necessary)
- police summaries of the offences and charges that breach the order
- a court extract in relation to offences that breach the order (if available)
- breach report.
If the breach is being contested, it is important to also include:
- the young person’s CRIS attendance record for supervision and special conditions.
Provide original copies of all documents, other than the breach report, in the breach proceeding, to the magistrate presiding over the breach.
Provide copies of all documents, other than the breach report, to the young person’s legal representative.
Release of youth justice reports to police
Copies of youth justice reports must not be forwarded to police unless the young person has signed a consent form to release that report.
If a young person has provided consent for the release of a report, the decision whether to release all information contained in the document is at the discretion of the youth justice team manager.
If youth justice decides not to release a report, the police can seek a copy by warrant or subpoena.
The above requirement also extends to police prosecutors.
Once the presiding magistrate is satisfied that the young person has breached the order, the breach report may be handed up to the magistrate.
Copies may then be given to the young person, the young person’s legal representative and any other person whom the court has ordered to receive a copy.
Following the breach of an order the court can:
- confirm the existing order: the order continues, unchanged
- vary the order by imposing a special condition, but not extend the period of the order
- impose a new order
- revoke the order and re-sentence
- the original order is deemed no longer active
- breaches cannot be pursued for reoffending or noncompliance that occurred during the active period of a revoked order
- defer sentencing.
Breach of a confirmed order
Where an order has previously been returned to court for breach proceedings and been confirmed, the original order cannot be breached again for offences or non-compliance that predate the confirmation of the order.
A confirmed order can be returned for breach action arising following the confirmation date.
Expired court orders
Refer to the procedure related to ‘Breaching expired court orders’.
If a warrant has been issued for a young person’s failure to attend court this can be recorded in CRIS against the court order by selecting 'breach – warrant outstanding'.
If the warrant is still outstanding at the time of expiry, and four to six weeks have lapsed since the warrant was issued, the case can be closed.
Prior to closing, ensure that all necessary reports and breach paperwork is attached to CRIS, to ensure prompt prosecution of the breach when the warrant is executed.
Record breach outcome in CRIS
It is very important that the order outcome is recorded accurately in CRIS not just within the court appearance or new order screen but also against the original order.
- How to breach from a closed case (605.0 KB, MS WORD)
- What do I call the judge? (1.4 MB, pdf)
- Considerations to proceed to breach action (intranet only) (29.5 KB, MS WORD)
- Recording a breach of a court order in CRIS including from 'closed cases' (intranet only) (462.5 KB, MS WORD)
- Children Youth and Families Act 2005