Infringements

Infringements

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Special Circumstances List

Where your client’s case is referred to court under section 66 of the Infringements Act on the basis of ‘special circumstances’, your client’s matter(s) will be listed together at the Melbourne Magistrates’ Court for first mention in the Special Circumstances List.

Important changes from 1 July 2017

From 1 July 2017, the Infringements Act 2006 (Vic) will be changed as part of Victoria’s fines reform process, including new ‘social justice initiatives’ that will affect people experiencing vulnerability. Please be aware of these reforms in relation to any infringements and fines assistance that you are providing to your clients.

Justice Connect Homeless Law pro bono lawyers should read our further materials about the changes here (password needed), before doing any fines work after 1 July 2017. Please speak to your supervising lawyer, team leader or Homeless Law staff for more information.

The Special Circumstances List (a forum just for special circumstances applications that currently sits on Thursdays at the Melbourne Magistrates' Court) aims to identify and address the issues underlying the 'offending behaviours' of people with special circumstances.

It should be explained to your client at the outset of their matter that making a special circumstances application entails making a guilty plea ie accepting that the offence occurred and explaining the circumstances that caused the offending. 

Appearing in the Special Circumstances List 

First steps to appearing in the Special Circumstances List

It is important that your client attend the Special Circumstances List hearing as the Magistrate is likely to want to speak directly with your client.  It may also be helpful if a case worker or social worker is present at the hearing, as this sends a strong message to the court that the client is being supported and is taking steps to address the underlying causes of the offending behaviour.

Homeless Law’s general policy is not to appear for clients who cannot appear at the hearings.  If your client is unable to appear, you should obtain your client's instructions to apply for an adjournment.  Sometimes in the Special Circumstances List, the court will adjourn the hearing in the client's absence (although this is not something that we can advise with certainty).  If the hearing does go ahead and your client does not appear, the court is more likely to impose a harsher sentence.  Your client will be able to apply for a re-hearing if he or she missed the first hearing. 

You should ensure that you meet your client beforehand and prepare him or her for what to expect at the hearing and what the Magistrate might ask your client.  Before the hearing, you will need to go to the court where the matter is listed to be heard (usually court 17 on level 5, but you should check on the day) and announce your "appearance" in person with the associate (usually seated at the front of the court on the right hand side). This means telling the associate your name before the Magistrate or judicial registrar has entered the court room so that the Magistrate (or judicial registrar) will then know you and your client are there ready for your matter to be heard.

You can also approach the prosecutor appearing for the relevant enforcement agency (eg. Victoria Police, Department of Transport or a local council).  You can introduce yourself and say you'll be appearing for your client.  You should provide any updated supporting letters you have (which you will later hand up to the Court).  You can also try to negotiate with the prosecutor by asking whether they are willing to withdraw any / all of the matters.  

When the associate calls your matter, proceed to the bar table on the left hand side and bring your client to sit just behind you.  Announce that you are appearing on behalf of your client.  The Magistrate (or judicial registrar) will then ask the enforcement agency prosecutor for an outline of the alleged offences, and will sometimes expressly ask whether your client pleads guilty or not guilty. In order to be eligible for special circumstances, you must plead guilty to the offence.

While the Court will always have a list of the infringements being dealt with, it is important that you have a clear idea of the court case number(s); the number of infringements; their dates and the underlying offences, so that you can answer any questions the Court has or correct any inaccuracies in the lists of the Court or the prosecutor.      

The Court may also ask what circumstances you are relying on, so you should be able to state this in a concise way (e.g. homelessness and mental illness). 

You will then need to make sentencing submissions to the Magistrate (or judicial registrar).

Making submissions

In the Special Circumstances List you will not always be required to make detailed oral submissions, but you must be sufficiently prepared so that you can identify the existence of special circumstances (i.e. the nexus between the client's condition and the relevant offences), present compelling evidence and arguments on why a lenient sentence is appropriate (ideally unconditional dismissal or an adjournment without conviction subject to an undertaking) and answer any questions that the Magistrate or judicial registrar has. 

Click here for a sample outline of submissions that can be used as a guide when appearing in the Special Circumstances List.

By way of summary, your outline of submissions in the Special Circumstances List should cover the following:

  • each infringement offence and dates;
  • the process by which the matter has been referred to Court (for example, a special circumstances application was made on [date], the enforcement orders were revoked on [date] and the matter was referred to court as case number [insert]). It is important to know what the case numbers are and what infringements are being dealt with, particularly if there are multiple matters that have been consolidated;
  • your client's special circumstances (particularly the way in which your client's condition(s) or circumstances have caused your client to be unable to understand or control the conduct that constitutes an offence). This involves showing the Court that the client experienced one or more of the relevant circumstances at the time of the offending and that this impacted on their ability to control or understand the conduct that constituted the offence. You should have a good understanding of the medical reports or other supporting documents that have been provided to the Court (including their dates, the expert that prepared them and the key comments that point out the client's circumstances and any link with the offending);
  • any rehabilitative or restorative treatment undertaken by the client. If possible, it is helpful to hand up a recent report from a professional (eg. a GP, psychologist, drug and alcohol counsellor or other support worker) that refers to the client's engagement with supports that will help prevent re-offending. This can be relevant to the Court's sentencing decision. Remember to take two additional copies (one for the Court, which can be handed up during the hearing and one for the prosecutor, which you can give them before the hearing starts);
  • your client's financial circumstances (including weekly income and expenses);
  • whether or not there has been any further offending ie can your client point to a particular date when the offending conduct stopped? If there has been some further offending, can your client explain the reasons for this to the Court (for example, that it was a period of relapse or increased anxiety)?
  • whether your client has the ability to pay the fines and how payment of the outstanding amounts would exacerbate the client's condition or mental, physical, financial or social hardship; and
  • any other individual circumstance of your client that may be relevant.

Sentencing

At the Special Circumstances List, the client will be sentenced under the Sentencing Act

The best sentencing outcome is that the matter is dismissed unconditionally (section 76 of the Sentencing Act).  Another common sentencing outcome for Homeless Law’s clients is that the matter is adjourned without conviction on an undertaking to be of good behaviour and to comply with a specific condition (for example, to engage with treatment for mental illness or drug and alcohol dependence) for a specified period, after which the matters will be dismissed (section 75 of the Sentencing Act).

In determining the client's sentence the Court will often ask about the client's engagement with treatment or supports.  The Court will also often ask about reoffending, so it is important that you have obtained your client's instructions about this prior to the hearing.  It is helpful if you can identify that the offending has stopped or, if it has not, identify that the client is taking steps to address the underlying causes of the offending (for example by engaging with supports to help manage their mental illness or substance dependence or with a housing worker who is assisting them to find stable accommodation). 

Sometimes the Court will want to speak with your client directly about these issues, so make sure your client is prepared for this and knows to stand when addressing the Magistrate or judicial registrar. 

In addition to the more common sentences referred to above, some of the Court's other sentencing options under the Sentencing Act include (in decreasing order of severity):

  • imprisonment;
  • community correction order (CCO) - CCOs may be ordered with or without convictions and may require a pre-sentence report, up to two years of unpaid community work, a drug and alcohol assessment and mandatory reporting. CCOs may also impose other conditions such as treatment and rehabilitation, restrictions on use of alcohol or drugs or association with certain people or where the defendant may reside (Part 3A);
  • fine - a fine is a monetary penalty imposed by the court (see Part 3B). Court-imposed fines can be imposed with or without a conviction (section 7). The court must take into account the defendant's financial circumstances and the nature of the burden that payment of the fine will impose (section 52). A fine may be paid by instalment or made default to unpaid community work orders (section 64). If your client receives a court-imposed fine, click here for more information;
  • adjournment with conviction - a defendant may be convicted of an offence but have their case adjourned for up to 60 months and be released on an undertaking of good behaviour and compliance with any other special conditions (section 72). The case will be dismissed following the expiration of the adjournment;
  • adjournment without conviction - a defendant, after pleading guilty, may have their case adjourned for up to 60 months on an undertaking of good behaviour and compliance with any other special conditions (section 75). The case will be dismissed following the expiration of the adjournment;
  • dismissal with conviction - a defendant may also be convicted and discharged for any offence (section 73);
  • dismissal without conviction - if a court is satisfied that a person is guilty of an offence, then the court may, without recording a conviction, dismiss the charge (section 76);
  • cancel/suspend licence or permit - the court has additional powers to suspend/cancel a person's driver's licence (section 89A);
  • deferral of sentence - the court can defer sentences for up to 12 months for suitable defendants regardless of age for the defendant's rehabilitation for example (section 83A).

Breach of undertakings

If the outcome of your client's special circumstances hearing is that the Court orders that the matter be adjourned subject to an undertaking (with or without conviction under sections 72 or 75 of the Sentencing Act), it is important that you advise the client what this means. 

The undertaking will require the client to "be of good behaviour" and will nearly always contain another condition, for example: "to continue to attend and participate in alcohol and psychological counselling as directed and to provide the court with written confirmation of this at the adjourned hearing".

After the hearing when the undertaking is made, you should advise the client about their obligations under the undertaking. 

There are two potential consequences of breaching the undertaking:

  • The client may be sentenced more harshly for the underlying offence(s); and
  • It is a separate offence to fail to comply with the order of the court, which the client could be charged with.

In relation to the underlying offences that had been adjourned subject to the undertaking, if the Court finds the client guilty of contravening the undertaking, the Court will:

  • deal with the order as if an application has been made under section 78 to vary the order; or
  • confirm the order; or
  • cancel the order and re-sentence your client under the Sentencing Act; or
  • cancel the order and make no further order (section 83AT of the Sentencing Act).

In making this determination, the Magistrate must take into account the extent to which your client has complied with the order.

In addition, it is a separate offence to contravene an order made under sections 72 or 75 of the Sentencing Act without "a reasonable excuse" (section 83AC of the Sentencing Act).  A proceeding for an offence of contravening an undertaking is commenced by filing a charge-sheet in the Magistrates' Court.  The offence is punishable by a fine of up to 10 penalty units (i.e. $1516.70 as of 1 July 2015).

It is important to advise your client of the risks of breaching the undertaking so that they appreciate the importance of trying to avoid reoffending and of engaging with the support or treatment ordered by the Court.  In practice, it is relatively rare for clients to be prosecuted for the separate offence of breaching the court ordered undertaking.  It is common, however, for clients to be required to re-appear before the Court after reoffending (and therefore arguably failing to be of good behaviour) or failing to engage with the prescribed support.  In these cases, you will need to make submissions about why the non-compliance occurred and what the appropriate sentencing option is (for example, subject to the client's instructions, varying the underlying order or extending the undertaking to allow the client another chance to comply). 

Other things to know about special circumstances hearings

Refund of money paid

If your client's matter is dismissed under sections 75 or 76 of the Sentencing Act and your client made some payments towards the fine, your client should be automatically refunded the money after the court hearing.  If your client does not receive the refund, you should contact the Infringements Registrar.

Demerit points

Note that if your client had traffic offences and pleaded guilty to these offences, even if the Magistrate dismisses the fines, demerit point attached to the offences will still accrue. 

CityLink and Eastlink fees

Even when a client's infringements matters are dismissed by the Court, where the infringements that are for driving on CityLink or Eastlink without a permit, the client will still be liable for an administrative fee of $40 (as at 1 July 2015) in respect of each charge found proven (regulation 19 of Melbourne City Link Regulations 2009, regulation 18 of Eastlink Project Regulations 2008). The Court is required to order that the person pay the relevant corporation this prescribed fee if the charge is found proven, whether or not a conviction is recorded or infringements dismissed.  An amount required to be paid under such an order is taken to be a "judgment debt" due by the person to CityLink (section 76 of Melbourne City Link Act 1995, section 206B of the Eastlink Project Act 2004). 

While the judicial registrar can make a recommendation that the cost order not be enforced, it cannot prevent CityLink from taking enforcement action.

This means that City Link could utilise the enforcement mechanisms contained in the Magistrates' Court General Civil Procedure Rules 2010 and the Judgment Debt Recovery Act 1984

If your client's sole source of income is a social security payment and they have minimal assets, then CityLink or Eastlink would be unable to enforce the debt.

While in Homeless Law's experience CityLink and Eastlink have not attempted to enforce these cost orders, you should nevertheless advise your clients of the risk that if your client acquires any assets or starts to earn any income other than a social security payment they may be pursued for the debt.  You should advise your client to contact Homeless Law straight away if in future CityLink or Eastlink attempts to enforce the cost orders.