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Apply to the Magistrate to vary or cancel instalment plan

While an order is in force, your client can apply to vary or cancel the payment or instalment plan that a Magistrate has ordered pursuant to section 63 of the Sentencing Act.  This section provides that a Magistrate may vary or cancel the instalment order and make any other order under its original powers (which would be the sentencing options under the Sentencing Act) if it is satisfied that:

  • The circumstances of your client have materially altered since the order was made and as a result your client will not be able to comply with the order; or
  • The circumstances of your client were wrongly stated or were not accurately presented to the court or the author of a pre-sentence report before the order was made; or
  • Your client is no longer willing to comply with the order (section 63(1)(c) of the Sentencing Act).

Section 63(2) of the Sentencing Act states that if the instalment order is cancelled, the Magistrates' Court must take into account the extent to which the offender had complied with the order before its cancellation when determining how to deal with the offender. 

If your client instructs you to make an application to vary or cancel the instalment order, you should prepare:

  • A general application; and
  • An affidavit in support of the application.

You should ensure that your application clearly addresses the reasons that your client is applying for a variation or cancellation and the appropriate sentencing option and includes supporting documentation such as letters from a GP, psychologist, other treating professional or support worker. 

Once these documents are completed, you can go to the Magistrates' Court, file them and you and your client should expect to be able to appear before the Magistrate that day.

Note that if your client makes an application under section 61 of the Sentencing Act but fails to attend, the court can issue a warrant to arrest against your client (section 63(4) of the Sentencing Act).