42AUApplication to vary or cancel community correction order

### 42AU Application to vary or cancel community correction order > [*\[Section 42AU Inserted by No. 51 of 2017, s. 15, Applied:14 Dec 2018\]*](/view/html/inforce/2018-12-14/act-2017-051#GS15@EN) > > > (1)  An offender who is subject to a community correction order, or an authorised person, may apply to the court that made the order to vary or cancel the order. > > > (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. > > > (3)  If the offender to whom an 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)](#GS42AU@Gs6@EN) , at the hearing of the application, the court to which the application is made may – > > > > > > (a) vary the community correction 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 42AQ](#GS42AQ@EN) , the operational period of the order; or > > > > > > > (b) cancel the community correction 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 community correction order, and, if it considers it appropriate, any other order in respect of the offence or offences in relation to which the community correction 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 community correction 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) cancel the community correction order if – > > > > > > > > > > (i) a special condition, requiring the offender to perform community service, was imposed on the order under [section 42AP(1)(d)](#GS42AP@Gs1@Hpd@EN) ; and > > > > > > > > > > > (ii) the court is satisfied that the offender has completed the performance of community service under the order; and > > > > > > > > > > > (iii) the court considers that it is appropriate for the order to cease to be in force; or > > > > > > > (e) refuse to vary or cancel the community correction order. > > > (5)  The court may vary or cancel a community correction 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 community correction order, except under [subsection (4)(d)](#GS42AU@Gs4@Hpd@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 under this section after the cancellation by the court of a community correction order or any other order under this section, other than in accordance with [subsection (4)(d)](#GS42AU@Gs4@Hpd@EN) ,the court must take into account the extent to which the offender had complied with the community correction order, or other order, respectively, before its cancellation or while it was still in force.