Eligibility and Grounds for Application

Sentences eligible for applications

An application can be made to the court where there is provision in the legislation to do so.

The following table outlines which applications can be made for different sentences/orders.

Grounds

An application to the court can be made by a probation officer on the following grounds:

• The offender is unable to comply, or has failed to comply with any of the conditions of the sentence.
• Any programme to which the offender is subject is no longer available or suitable for the offender.
• In regards to any changes in circumstances since the sentence was imposed and to the manner in which the offender has responded to the sentence:
  • the rehabilitation and reintegration of the offender would be advanced by the remission, suspension, or variation of any special conditions or the imposition of additional special conditions, and
  • the continuation of the sentence is no longer necessary in the interests of the community or the offender.
• The offender is convicted of an offence punishable by imprisonment.
• The home detention (HD) residence is no longer available or suitable because of a change in circumstances.

Review if conditions incompatible

The probation officer must apply for a review of the conditions if an offender is subject to conditions imposed under two or more orders at the same time, and the probation officer is satisfied that:

• any of the special conditions are incompatible with each other, or
• in light of all the conditions to which the offender is subject under the orders, it is unreasonable to expect the offender to comply with one or more of the special conditions.

Note: This applies to offenders subject to HD, post detention conditions and release on conditions only, and will take the form of an application for variation.

Multiple sentences

Where the offender is subject to joint or multiple sentences, the probation officer/senior community work supervisor considering making an application to vary or cancel one sentence must also consider whether similar action should be taken in respect of any other sentence.

If the probation officer is to make applications to vary or cancel multiple sentences, and the sentences were imposed on the same date, only one application is required. In this situation IOMS casenotes should record:

• all discussion between staff, and
• decision-making regarding the application.

If two applications are required, these should be submitted together for the same hearing date. The court officer prosecuting the application should be advised that the applications should be considered together.

Where the reason for the application affects more than one sentence and one sentence is cancelled, the other sentence is not automatically cancelled.

BWLS programme

If an offender is subject to both a rehabilitative sentence and CW, and the probation officer considers the offender is appropriate for one of the basic work & living skills (BWLS) programmes, then an application should be made to allow for authority to convert CW hours to BWLS hours.