Infringements

Infringements

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Hearing and sentencing under section 160

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.

Your client can be arrested under section 82 of the Infringements Act if they:

  • have infringement warrant(s);
  • have been issued with a seven day notice and the seven day period has expired; and
  • do not have sufficient personal property which if seized and sold, would cover the amounts outstanding.

Warrants to arrest, bail and community work permits deals with this process in more detail.  

If your client is arrested under section 82 of the Infringements Act, he or she may appear before a Magistrates' Court to be sentenced under section 160 if he or she:

Imprisonment and other sentencing options under section 160

Under section 160(1) of the Infringements Act, the Magistrate may order that your client is imprisoned for a period of one day in respect of each penalty unit ($151.67 as at 1 July 2015), or part of penalty unit.  For example, if your client has $1000 outstanding in fines and enforcement costs, then your client may be imprisoned for seven days. 

If the Magistrate is satisfied that your client has a mental or intellectual impairment, disorder, disease or illness or that special circumstances apply to your client, the Magistrate may pursuant to section 160(2) of the Infringements Act:

  • discharge the outstanding fines in full;
  • discharge up to two thirds of the outstanding fines;
  • discharge up to two thirds of the outstanding fines and order that the infringement offender be imprisoned for a period of one day in respect of each penalty unit, or part of penalty unit; or
  • adjourn the further hearing of the matter for a period of up to 6 months.

If the Magistrate is satisfied that, having regard to your client's situation, imprisonment would be excessive, disproportionate and unduly harsh, the Magistrate may pursuant to section 160(3) of the Infringements Act:

  • order your client to be imprisoned for a period that is up to two thirds less than the period equivalent to one day per penalty unit;
  • discharge the outstanding fines in full;
  • discharge up to two thirds of the outstanding fines;
  • discharge up to two thirds of the outstanding fines and order that your client be imprisoned for a period that is up to two thirds less than the period equivalent to one day per remaining penalty unit;
  • adjourn the further hearing of the matter for a period of up to 6 months; or
  • make a fine default unpaid community work order under Division 1 of Part 3 B of the Sentencing Act.

If your client's matter is adjourned, the Magistrate may impose conditions on an adjournment (such as requiring your client to engage with services or do a drivers' education course). When the matter resumes after an adjournment, the Magistrate will reconsider the matter and your client's circumstances.

The Magistrate is also empowered under section 160 of the Infringements Act to order imprisonment in default of compliance with a payment plan under sections 160(1) and (4) which effectively means that an imprisonment order is stayed for as long as the person complies with the instalment order.  These are commonly referred to as imprisonment in lieu orders as prison time will be served in lieu of payment if the payment order is not complied with.

If your client defaults on a payment of an instalment order, then a warrant for imprisonment may be issued under section 68 of the Magistrates' Court Act  immediately without further hearing and your client may be imprisoned.  Click here for options available to your client if they have been issued with a warrant to imprison.

If your client is imprisoned pursuant to a warrant under this section, and part payment is made of the outstanding fines, it will reduce the number of days that your client must serve, calculated by 1 penalty unit per day ($151.67 as at 1 July 2015) (section 161 of the Infringements Act). 

Making submissions in a section 160 hearing

If you appear on behalf of your client at a section 160 hearing, subject to your client's instructions, you should prepare submissions which clearly set out (where relevant):

  • a chronology of the offences that were the subject of the warrants and the client's circumstances over this period;
  • your client's mental or intellectual impairment, disorder, disease or illness (as referred to in section 160(2)(a) of the Infringements Act);
  • your client's special circumstances (particularly the way in which your client's condition(s) or circumstances caused your client to be unable to understand or control the conduct that constituted the underlying offences) (as referred to in section 160(2)(a) of the Infringements Act);
  • your client's financial circumstances;
  • the reasons that imprisonment would be excessive, disproportionate and unduly harsh (as referred to in section 160(3) of the Infringements Act). By way of guidance, in Fernando v Port Phillip City Council [2011] VSC 592, Hollingworth J noted some scenarios in which it may be appropriate to apply section 160(3) (this is not an exhaustive list):
    • A single parent with young children who would be placed in State care if the parent was incarcerated;
    • A sole family provider, where the family would be left destitute or at risk of dispossession in the event that the infringement defaulter was incarcerated;
    • Where the amount of the infringement debt has completely overwhelmed the defaulter causing him/her to be unable to take any action;
    • Where the defaulter experienced a prolonged period of illness but has since resumed employment; and
  • the sentencing option that you request the Magistrate to make.

Supporting material is extremely important in these sentencing matters, for example if your client is relying on special circumstances or mental or intellectual impairment, disorder, disease or illness, then you should ensure that you have sufficient evidence and supporting documentation available to hand up to the Magistrate.  Other supporting documentation such as character references, budgets showing limited income or supporting letters regarding caring responsibilities are also relevant. 

In the event that you are unable to obtain the required supporting documentation before the hearing, you should consider applying for an adjournment to allow this material to be obtained. 

The judgment of the Supreme Court of Victoria Court of Appeal in Victoria Police Toll Enforcement & Ors v Taha & Ors and State of Victoria v Brookes & Anor [2013] VSCA 37 dealt with orders made under section 160 of the Infringements Act.  In this matter, Nettle, Tate and JJA in three separate judgments, made the following findings:

  • Section 160 of the Infringements Act must be read as a whole, which means that before imposing an imprisonment or imprisonment in lieu order under section 160(1), the Court must consider the availability of 'less draconian' orders under sections 160(2) and 160(3).
  • In order to satisfy itself as to which option should be ordered, the Court has a duty to inquire into the circumstances of the infringement offender.
  • How the Court exercises its duty to inquire depends on all the circumstances. There will be 'flags' which indicate to the Court what inquiries need to be made (in the case of Mr Taha, these 'flags' included: Mr Taha had accumulated a large number of fines over a long period for repeated offences of the same kind; the amount owing was significant; and the court placed Mr Taha on an instalment plan, so it must have inquired about his ability to meet payments and minimal questioning would have identified that his source of income was a Disability Support Pension). If the offender is represented by a lawyer, it does not necessarily follow that the Court does not need to inquire.
  • If the Court's inquiry reveals that further evidence of the offender's circumstances is needed, the Court should take steps to make sure that it is received. The Court could receive that evidence orally or adjourn the hearing to allow written evidence to be obtained.

The Court of Appeal's judgment is a welcome development. The findings are consistent with the safeguards within the Infringements Act that are designed to protect vulnerable people being caught up in the infringements system. They also align with the policy intention of using imprisonment for outstanding fines only as a last resort. Following the ruling, lawyers representing clients in section 160 hearings should expect that their client's case will be adequately explored by the Court, as it is now obliged to inquire whether the circumstances in sections 160(2) or (3) are relevant or not.

Accordingly, lawyers representing clients in matters where the client is being sentenced under section 160 of the Infringements Act should:

  • expect a more inquisitorial hearing from the Court;
  • ensure that they have properly considered how sections 160(2) and (3) apply to their client;
  • prepare submissions for the Court in relation to sections 160(2) and (3);
  • if documentary evidence is not available:
    • consider the possibility of leading oral evidence from their client or from over the bar table; and
    • discuss with the Court whether written evidence will be needed to assist with their inquiry; and
    • if the Court requires documentary evidence, request an adjournment for their client to assist the Court to conduct their inquiries.

Homeless Law has prepared a case note on Taha which is available here.