Infringements

Infringements

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What happens if your client doesn’t address the fines?

If your client is in default of the payment of a fine or any instalment order for more than a month, your client may be issued with a warrant to arrest (section 69(1) of the Sentencing Act).  If your client wishes to avoid arrest and re-start the payment plan, your client can try to negotiate with the registrar of the court to recall the warrant to arrest and restart the payment plan.  You should contact the registrar and if required, explain your client's circumstances and the reasons the payment plan should be restarted.  

Section 69C of the Sentencing Act provides that a warrant must not be executed if, within seven days after a demand is made on the person in default:

  • the fine or instalment and all warrant costs are paid; or
  • the person in default has obtained an instalment order or time to pay order; or
  • an order has been made by the sentencing court under section 69D of the Sentencing Act (i.e. the person has successfully applied to the court for an order that he or she can perform unpaid community work for the outstanding fine or instalment).

If your client is arrested, he or she will be either brought immediately before the Magistrates' Court or bailed and brought to the court on a hearing date to be fixed.  If your client is arrested, bailed and fails to attend the hearing, the Court can proceed to hear and determine the matter in your client's absence.  Alternatively, the Court may issue another warrant to arrest and adjourn the hearing to a date to be fixed. 

If your client presents with an outstanding warrant to arrest for failure to pay an open court fine, your client needs to be arrested before the matter can be re-listed before the court.  This can often be done administratively by arranging to attend the sheriff's office and have the warrant executed so that the matter can be brought back before the court.  Before presenting to the sheriff, you should make sure that your client does not have any other outstanding warrants, which might also be executed (in particular, any warrants to imprison.)

Preparing for a section 69 hearing

If the court is satisfied by evidence on oath or by affidavit or by the admission of the offender or from an examination of the records of the court that your client is in default by more than a month, the Magistrate can order (section 69E of the Sentencing Act):

  • with your client's consent, that your client perform unpaid community work (section 69H(2)(a));
  • that your client be imprisoned for a term of one day per penalty unit. However, the Magistrate cannot make an imprisonment order if the court is satisfied that he or she did not have the capacity to pay the fine or the instalment or had another reasonable excuse for the non-payment (section 69H(3)). Further, the Magistrate cannot make this order unless it is satisfied that no other order is appropriate in all the circumstances of the case (section 69H(4)). If the Magistrate makes an imprisonment in default of payment or instalment order, and your client defaults and receives an imprisonment warrant, see here for your client's options;
  • that the outstanding fine be levied under a warrant to seize property;
  • that the original instalment order (if one was made) be varied; and
  • an adjournment of the hearing or further hearing of the matter.

You should ensure that you prepare submissions that clearly set out your client's circumstances and preferred sentencing option.  You should also include any supporting documentation.

Note that if your client was held in custody under a warrant issued under section 69 and for no other reason for at least one day, it will be determined that your client has served the equivalent of 1 penalty unit and that will be reduced from the outstanding fine (section 69P).