This procedure covers processes for varying or revoking a community based court order.
When to use this procedure
When a young person or youth justice has applied to the court to have an order varied or revoked.
What else you need to know
Practice context and legislation
- A young person or youth justice can apply to the court to have a community based order varied or revoked.
- If an application has been made to vary or revoke an order, a report must be submitted to the court. This report is prepared by the applicant and details the reasons why the matter has been returned to court.
- If the young person initiates the application, the court may ask the young person and their family to substantiate the request. The principal registrar will notify youth justice by registered post the date of the hearing and request youth justice to prepare a progress report.
- If possible, the case should be heard before the original sentencing magistrate. If the original magistrate is not able to hear the application, the case will be heard before another magistrate.
- The court does not have the power to extend the order. The court is able to revoke the order, impose a different sentencing order, and vary or add conditions to the original order.
Roles and key tasks
- Case manager
- Team leader / team manager
- Assistant Director / Manager Individual and Family Support
- Youth Justice Senior Practice Advisor
- Initiate application to vary or revoke an order where appropriate, after consultation with team leader.
- Present the application at court, and obtain legal representation if the young person disputes the application.
Team leader / team manager
- Consult with case manager regarding appropriateness of revocation or variation.
Assistant Director / Manager Individual and Family Support
- Authorise revocation or variation of order.
- Provide oversight, direction and monitoring of the area youth justice service.
- Provide case consultation for young people exhibiting high-risk behaviours.
Youth Justice Senior Practice Advisor
- Provide case consultation in relation to court recommendations, breaches and particularly for high-risk young people. This should occur subject to local area agreements between Assistant Director / Manager Individual Family Support and the Senior Practice Advisor.
The procedure in detail
- When to revoke or vary an order
- Application to vary/revoke the order
- Serving the notice to appear before the court
- If the young person applies for a variation or revocation of their order
- Content of report
- Court proceedings
- The court outcome
When to revoke or vary an order
Reasons for requesting a revocation or variation of an order include:
- adding or deleting a special condition
- confirmation by the court of a lawful direction
- permanent relocation interstate, or employment in an isolated environment
- a request to travel overseas with family
- involvement in a serious accident resulting in the young person being incapacitated for in excess of three months
- receiving a custodial sentence in excess of three months
- if the young person receives a lengthy custodial sentence for an offence that does not breach the order, for example, for an offence committed prior to the handing down of the order
- if the young person has been placed on a lengthy order and it can be proved that they have matured to such an extent that supervision is no longer required
- exemplary performance by a young person on the order
- the young person’s circumstances have changed since the original order was made
- the young person’s circumstances were not accurately presented to the court or to youth justice before the sentence was imposed
- the young person is no longer willing to comply with the order.
A recommendation to vary or revoke the order is made by a team leader in consultation with the case manager and the team manager.
Authorisation from the Assistant Director / Manager Individual and Family Support
is required before returning the young person to court.
Document all reasons for decisions on the young person’s file in Client Relationship Information System (CRIS).
Application to vary/revoke the order
The case manager is responsible for initiating the application.
The application to vary and/or revoke the sentencing order and the notice to appear before the court must be authorised by a clerk of courts.
The original notice to appear and the original sworn affidavit must be given to the court and a copy placed on the young person’s file.
The following information should be included on the application:
- client details
- details of the original offences committed and information in relation to the sentence
- venue of the court and date of hearing
- name and address of the informant
- grounds for the application.
If the young person is younger than 15 years, they and their parents must be told that youth justice intends to return the case to court, including the reason for the application.
Serving the notice to appear before the court
The Children, Youth and Families Act 2005 requires that the young person be served with legal documentation concerning any return to court.
The notice to appear before the court must be served on the young person at least 14 working days before the court hearing.
The documentation can be served by:
- personally handing it to the young person
- sending it by registered post to their last known address
- leaving a copy with a person 16 years of age or over at the young person’s last or usual place of residence.
Once the documentation has been served, the youth justice worker must make a sworn declaration before a clerk of courts or other authorised person that the notice has been sent or delivered.
If the young person applies for a variation or revocation of their order
Youth justice will receive notification of the date of the court hearing.
The allocated youth justice worker advises the young person and their family that documentation substantiating their request may be required by the court.
On authorisation by the court, the registrar must provide notice in writing of the amendments to the Assistant Director / Manager Individual and Family Support.
The Assistant Director / Manager Individual and Family Support or delegate notifies the young person, their family and the assigned youth justice worker of the variation or revocation details.
Content of report
Regardless of which party initiates the application, a report must be prepared for the court that includes:
- the date, list of offences and location of the court that made the original order
- details of the original offences, the circumstances of the offending, and the sentencing order made
- frequency of reporting requirements
- the young person’s compliance with the requirements of the order
- grounds leading to the application or variation
- evidence to support the application for variation
- a recommendation as to what course the court should adopt on the hearing of the application.
The youth justice worker must ensure that all relevant documentation is made available to the court.
If the young person consents to the application the youth justice worker presents the application.
If the young person intends to dispute the application, a legal advocate should be arranged to represent youth justice.
Prepare the following documentation:
- court report
- Internal Bureau Records police check
- documentation relating to the original charges from the original informant and court records.
Refer to the procedure relating to ‘Attending court and court etiquette’ for further information.
The court outcome
The court may:
- revoke or vary the order, but not extend the period of the order
- make an order directing the continuation of the original order
- make any other order, which the court could have made, had it not made the original order.
After the case has been heard, give the young person details of the court outcome and any changes made to the original order. Where appropriate arrange a follow-up appointment at the youth justice unit within two working days.
If the young person fails to appear at the hearing, a warrant to arrest may be issued.
If on execution of the warrant the application cannot be dealt with immediately, bail may be granted.