Infringements

Infringements

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Application for rehearing

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.

Overview

There are two main avenues to ensure clients avoid imprisonment for unpaid fines. If the client was sentenced under section 160(1), they can apply to have the matter reheard under section 160B of the Infringements Act on the basis that at the time of hearing, the special circumstances of the client were not taken into account or were not before the court at the time of the hearing. If the client was sentenced under section 160(2) or (3), a client can apply to have the warrant recalled and cancelled under section 58 of the Magistrates' Court Act. For these applications, see here.

These applications for rehearing involve presentation of detailed affidavit material from the client, including supporting material provided by treating professionals, support workers or character referees.  

Application for rehearing of section 160(1) order under section 160B

Under section 160B(3), a rehearing may only be sought on the basis that:

(a)    at the time of the hearing the infringement offender had a mental or intellectual impairment, disorder, disease or illness or that special circumstances applied to the infringement offender and this was not taken into account or was not before the Court at the time of the hearing under section 160; or

(b)   at the time of the hearing under section 160 evidence was not taken into account or before the Court so as to make the decision to imprison the infringement offender excessive, disproportionate and unduly harsh.

Any warrant to imprison issued under section 160(4)(a) will be recalled and cancelled on the filing of an application for rehearing, and any instalment order under section 160(4)(b) will be stayed on filing an application for rehearing.

If the Court is satisfied on the balance of probabilities that a ground in section 160B(3) has been established, the Court may cancel the order and exercise any power available under section 160.

If the application is struck out or refused, the warrant to imprison must be reissued.

Importantly, a rehearing application cannot be listed on a case where the magistrate partially discharged the outstanding amount and ordered an imprisonment in lieu order on the remaining amount. If this is the case for your client, you should consider an application to vary the instalment order.

If the client fails to appear at the time fixed for the rehearing of the matter and the rehearing is struck out, they may re-apply if they first obtain the leave of the Court. They should complete an ‘Application for Rehearing’ form and tick the box ‘Yes’ to the ‘Leave of the Court’ question.

However if an application for rehearing is refused, the matter cannot be reheard (section 160C(3)).

The process of making an application for rehearing

This section provides a practical guide for handling a matter involving a warrant to imprison based on an order made under section 160 of the Infringements Act.  It is not an exhaustive guide (you still need to consider the other options available to your client), but it aims to give practical context to the key steps in these matters. 

1. Provide initial advice

An example of the initial advice you might provide to the client (obviously subject to the client's circumstances and instructions) is:

  • There are some limited options available, and one is to apply to the Magistrates' Court to have the matter reheard.
  • The consequences of him/her not acting on this matter will be that he/she is arrested and taken straight into custody for the imprisonment in lieu period on the warrant.
  • If the sheriff does contact her/him before he/she has a chance to see a lawyer, she must inform the sheriff that he/she is receiving legal assistance and ask the sheriff to call us immediately for clarification.

2.    Suggested Steps

Subject to the client's instructions, the lawyers should consider taking the following steps:

  • Contact the relevant Magistrates’ Court where the IIL order was made for a copy of the order and a copy of the formal sentencing extract of the section 160 hearing in order to determine whether any discount of fines was made pursuant to ss 160(2) or (3), and also, obtain copies of the relevant Penalty Enforcement Warrants in order to determine the date range of the relevant offences;
  • Confirm whether the Magistrate did discount the fines under ss 160(2) or (3);
  • If yes, an application for rehearing under section 160B of the Infringements Act cannot be pursued. Instead, an application for the warrant to be recalled and cancelled should be made;
  • If the sheriff has already been in contact with the client, contacting the sheriff immediately and informing them that we will be assisting the client to apply to the Magistrates' Court for a rehearing under section 160B;
  • Obtain supporting documentation (including letters from the client's GP and other support workers); and
  • Make an application to the Magistrates' Court to have the matter reheard under section 160B of the Infringements Act.

3.    Making the application

The steps to apply to have the matter reheard under section 160B of the Infringements Act are:

  • Prepare the application using this form:
  • The application should be accompanied with an affidavit deposed by the client setting out the circumstances in which the infringements were incurred, including whether the client has a mental illness or intellectual impairment, had special circumstances that applied at the time of the hearing, information about when the order for imprisonment in lieu was made (including whether the client was represented at the hearing and understood the proceedings), information about why the client defaulted on the payment plan and information about the client's current financial and other hardship (including any caring obligations or rehabilitation efforts). Supporting documentation should be annexed to the affidavit (for example, letters from the client's GP, psychologist, drug and alcohol counsellor, other support workers or character referees).
  • The process for making this application is to:
    • prepare the application and affidavit;
    • arrange a time with the client (and, if relevant, counsel) to attend the Magistrates' Court where the imprisonment order was made;
    • contact the registry at the Magistrates' Court to explain that you will be attending to apply for a rehearing under section 160B and confirm the time is appropriate.

4. Attending the hearing

Upon attending court with the client (and, if relevant, counsel), the lawyers should:

  • Appear in front of the Magistrate to make oral submissions.
  • You should make submissions regarding your client’s special circumstances or any other evidence that made the order excessive, disproportionate and unduly harsh that was not put before the court or taken into account at the initial section 160 hearing. Often it will be the case that the client was unrepresented at the initial hearing when the order was made and that his or her circumstances were not properly brought to the attention of the Court, however even if a client was represented, this does not preclude a successful rehearing application.
  • Any submissions should be supported with evidence regarding the client's circumstances at the time of the offending, at the time of the initial hearing, during period of the default on the payment plan and presently.
  • If the Magistrate accepts the submissions that the matter should be reheard, submissions should then be presented as they would in a section 160 hearing. More information about making submissions under section 160 of the Infringements Act is available here.
  • In some cases it may be appropriate to brief counsel to settle the submissions and appear at the Magistrates' Court or the Homeless Law criminal lawyer.  Contact Homeless Law staff lawyers for assistance and an appropriate referral.

The following template documents can be used as a guide when applying for a rehearing: