42AHApplications to vary or cancel home detention orders

### 42AH Applications to vary or cancel home detention orders > [*\[Section 42AH Inserted by No. 51 of 2017, s. 14, Applied:14 Dec 2018\]*](/view/html/inforce/2018-12-14/act-2017-051#GS14@EN) > > > (1)  An offender who is subject to a home detention order, or an authorised person, may apply, to the court that made the order, for the order to be varied or cancelled. > > > (2)  A copy of the application and notification of the time and place of the hearing of the application is to be served, at least 7 days before the hearing, on – > > > > > > (a) the offender, if the applicant is an authorised person; or > > > > > > > (b) the DPP and the offender's probation officer, if the application is made by the offender to the Supreme Court or the Court of Criminal Appeal; or > > > > > > > (c) the complainant or police prosecutor, and the offender's probation officer, if the application is made by the offender to a court of petty sessions. > > > (2A)  Despite subsection (2) and if – > > > > > > (a) the applicant and all appropriate persons referred to in paragraph (a), (b) or (c) of that subsection consent to it; or > > > > > > > (b) the court considers it appropriate to do so in the circumstances – > > > > the court to which the application is made may hear and determine the application at any time before the expiration of the 7-day period following service as required by that subsection or without such service having been effected. > > > (2B)  [*\[Section 42AH Subsection (2B) inserted by No. 31 of 2023, s. 5, Applied:01 Jul 2024\]*](/view/html/inforce/2024-07-01/act-2023-031#GS5@EN) Despite [subsection (1)](#GS42AH@Gs1@EN) , an offender, or any appropriate person referred to in [subsection (2)(b)](#GS42AH@Gs2@Hpb@EN) or [(c)](#GS42AH@Gs2@Hpc@EN) , may make an oral application under this section to a court of petty sessions, the Supreme Court or the Court of Criminal Appeal if – > > > > > > (a) the offender is appearing before the court; and > > > > > > > (b) the court considers the oral application appropriate in the circumstances. > > > (2C)  [*\[Section 42AH Subsection (2C) inserted by No. 31 of 2023, s. 5, Applied:01 Jul 2024\]*](/view/html/inforce/2024-07-01/act-2023-031#GS5@EN) After receiving an oral application under [subsection (2B)](#GS42AH@Gs2B@EN) , the court may direct the applicant to provide the other parties to the application with the grounds, for the oral application, in writing. > > > (2D)  [*\[Section 42AH Subsection (2D) inserted by No. 31 of 2023, s. 5, Applied:01 Jul 2024\]*](/view/html/inforce/2024-07-01/act-2023-031#GS5@EN) If an application is made, in accordance with [subsection (2B)](#GS42AH@Gs2B@EN) , to a court that is not the court that imposed the home detention order, the court may – > > > > > > (a) deal with the application under this section; or > > > > > > > (b) adjourn the proceedings to the court that made the order and either grant the offender bail or remand the offender in custody. > > > (2E)  [*\[Section 42AH Subsection (2E) inserted by No. 31 of 2023, s. 5, Applied:01 Jul 2024\]*](/view/html/inforce/2024-07-01/act-2023-031#GS5@EN) If proceedings for an application under this section are adjourned to a court under [subsection (2D)(b)](#GS42AH@Gs2D@Hpb@EN) , a reference in this section to the court to which the application is made is taken, on and after the adjournment, to be a reference to the court to where the proceedings were so adjourned. > > > (3)  If the offender to whom the application relates is before the court and the court is unable to immediately deal with the application, the court may adjourn the proceedings and either grant the offender bail or remand the offender in custody. > > > (4)  Subject to [subsection (6)](#GS42AH@Gs6@EN) , at the hearing of the application, the court to which the application is made may – > > > > > > (a) vary the home detention order by doing any one or more of the following: > > > > > > > > > > (i) adding a special condition to the order; > > > > > > > > > > > (ii) removing or altering a special condition of the order; > > > > > > > > > > > (iii) altering, subject to [section 42AF](#GS42AF@EN) , the operational period of the order; > > > > > > > > > > > (iv) altering which premises are to be the home detention premises in relation to the order; > > > > > > > > > > > (v) altering the times, specified in the order, of the days of the week specified in the order, or alter the days of the week specified in the order, or both, at which the offender must be at the home detention premises; > > > > > > > > > > > (vi) specifying or altering the period or periods during which the offender is required, under [section 42AD(1)(g)](#GS42AD@Gs1@Hpg@EN) , to submit to electronic monitoring, or revoking a specification under [section 42AD(2)](#GS42AD@Gs2@EN) in a home detention order that an offender is not required to submit to electronic monitoring; or > > > > > > > (b) cancel the home detention order and deal with the offender, in respect of the offence or offences in relation to which the order was made, in any manner in which the court could deal with the offender had the court just found the offender guilty of that offence or those offences; or > > > > > > > (c) cancel the home detention order and, if it considers it appropriate, any other order in respect of the offence or offences in relation to which the home detention order was made, and, whether or not it cancels any other order, deal with the offender, in respect of the offence or offences in relation to which the home detention order was made, in any manner in which the court could deal with the offender had the court just found the offender guilty of that offence or those offences; or > > > > > > > (d) refuse to vary or cancel the home detention order. > > > (5)  The court may, under [subsection (4)](#GS42AH@Gs4@EN) , vary or cancel a home detention order to which an application relates, whether or not the application was to vary or cancel the order. > > > (6)  The court must not vary or cancel the home detention order under [subsection (4)](#GS42AH@Gs4@EN) unless the court is satisfied that – > > > > > > (a) changes in the offender's circumstances since the making of the order have rendered the offender unable to comply with any one or more of the conditions of the order; or > > > > > > > (b) the offender is no longer willing or able to comply with the order; or > > > > > > > (c) it is otherwise appropriate to do so. > > > (7)  In determining how to deal with an offender after the cancellation by the court of a home detention order or any other order under this section, the court must take into account the extent to which the offender had complied with the home detention order, or other order, respectively, before its cancellation or while it was still in force.