Varying or cancelling an instalment plan

If the court imposes a fine on your client under s 49 of the Sentencing Act 1991 (Vic) (SA), it will often make this together with an instalment order under s 56 of the SA.

If an instalment order is in force your client can apply to vary or cancel the instalment order (s 61(1) of the SA). On application the Court may vary or cancel the instalment order in addition to making any other order available to it when it initially sentenced your client. The court’s power to vary, cancel or make another order is enlivened on it being 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 (s 63(1) of the SA).

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 (s 63(3) of the SA).

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;
  • the appropriate sentencing option; and
  • includes supporting documentation such as letters from a GP, psychologist, other treating professionals 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 on the same day.

Note that if your client makes an application under s 61(1) of the SA, but fails to attend Court, the court can issue a warrant to arrest against your client (s 63(4) of the SA).

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