Applications for Cancellation and Substitution

Introduction

An application for cancellation and substitution of a sentence of CD may be made.

This is one of the key sentence management tools available for the probation officer. As well as being used in response to non-compliance, an application to cancel and substitute the existing sentence can also be made in response to a change in the offender’s circumstances which impacts on their ability to meet the requirements of the sentence.

Legislative reference: Section 69I Sentencing Act 2002.

When to make an application

The probation officer may make an application for cancellation and substitution of the existing CD as a means of enforcement action in response to multiple or serious instances of non-compliance. It may also be made if there is a change in offender’s circumstances which means the CD is not able to proceed.

Reference: Volume 3B, Part IV, Chapter 6, Community Detention Enforcement Guidelines, (please refer to the related links section on this page) for guidance on when it is appropriate to:

• make an application for cancellation and substitution of the existing sentence, or
• use breach action.

Substitute sentence

All applications for cancellation and substitution of the existing sentence should clearly state what the probation officer is seeking in terms of a substitute sentence, and include sufficient information to support this.

On most occasions that the application is made in response to non-compliance, the substitute sentence sought should be in accordance with the hierarchy of sentences. This means that the recommendation will be to:

• cancel the existing sentence, and
• substitute a sentence from the next (higher) level in the hierarchy.

In some circumstances the recommendation may be for the existing sentence to be substituted with the same sentence, but with more/stricter conditions, for example new or more extensive curfew periods.

Seeking further CD or HD as a substitute

An application for cancellation and substitution seeking further CD may be used in response to non-compliance with an existing sentence of CD.

When such an application is made, the probation officer should seek to move from tailored curfews (e.g. 6pm to 6am Friday and Saturday) to more standard daily curfews that place greater restriction on the offender (e.g. 6pm to 6am every day).

If seeking a substitute sentence of home detention (HD) or further CD (i.e. a more restrictive sentence of CD), consideration should be given to what information should be provided to the court and whether:

• HD or further CD enquiries could be undertaken before the hearing date, or
• a pre-sentence report and second hearing is required.

If an application is made and the offender consents to the substitution of HD or further CD, then these enquiries could be completed prior to the hearing.

Court responsibilities

When determining a substitute sentence, the court must take into account:

• that the substitute sentence could have been imposed on the offender at the time that the offender was convicted of the offence for which the sentence was imposed. 
  Note:  It may be necessary to check the legislation under which the offender was originally sentenced, i.e. prior to any amendments.
• the portion of the original sentence that remains unserved at the time of the order.