4. Application for Cancellation and Substitution

Introduction

An application for cancellation and substitution of the existing sentence is one of the key sentence management tools available for the probation officer.

An application to cancel and substitute the existing sentence can be made in response to:

• non-compliance, or
• any change in the offender's circumstances which impacts on their ability to meet the requirements of the sentence.

An application for cancellation and substitution of the existing sentence can be made with respect to the following sentences only:

• home detention (HD)
• intensive supervision
• supervision
• community detention (CD), and
• community work (CW).

Legislative references: Sections 54, 54K, 68, 69 and 80F Sentencing Act 2002.

Note: As release on conditions and post detention conditions are not sentences in their own right, legislation does not provide for them to be cancelled. Application may be made to the court to vary or discharge any or all the conditions. This can include cancellation of a condition and substitution with another condition.

When to make an application

The probation officer may make an application for cancellation and substitution of the existing sentence as a means of enforcement action in response to multiple or serious instances of non-compliance.

An application may also be made if there is a change in offender's circumstances which means the sentence is not able to proceed.

Enforcement guidelines provide guidance to probation officers outlining when it is appropriate to:

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

Reference: Volume 2, Part VII, Chapter 3, Determining what Enforcement Action to Take. (Please refer to the related links section on this page).

Substitute sentence

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

On most occasions when 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, e.g. CD with new curfew periods.

Seeking HD or CD as a substitute

If seeking a substitute sentence of HD or CD, consideration should be given to the information that should be provided to the court, and whether:

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

If the offender consents to the application and a substitution of HD or 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.), and
• the portion of the original sentence that remains unserved at the time of the order.