Infringements

Infringements

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Apply to the Magistrate to recall and cancel warrants

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 legal avenues to ensure clients avoid imprisonment for unpaid fines. If an order was made under s 160(1) of the Infringements Act, a client can apply for a rehearing under s 160B. However, if an order was made under s 160(2) or s 160 (3), the rehearing provisions in the Infringements Act don’t apply and a client can apply to have the warrant recalled and cancelled under section 58 of the Magistrates' Court Act.

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

There continues to be some uncertainty amongst Magistrates about whether, after cancelling a warrant using section 58 of the Magistrates' Court Act, they can re-open the original order under  section 160 of the Infringements Act (to, for example, discharge the infringements under sections 160(2) or (3)) or whether their jurisdiction is limited to simply reinstating the existing payment plan.

For many of Homeless Law’s clients, re-instatement of the payment plan may not be an appropriate outcome because they are financially unable to keep up with the repayments.

Recall and cancellation of imprisonment warrants

In In the matter of Deon Nicole Forbes [2012] VMC (Case No. B12467809) Magistrate Holzer held that Magistrates have the power to recall and cancel a warrant even after the warrant has been executed or partially executed pursuant to section 58 of the Magistrates' Court Act. 

As mentioned above, under section 58 of the of the Magistrates' Court Act, a warrant issued by a registrar, Magistrate or bail justice may be recalled and cancelled by:

  • that registrar, Magistrate or bail justice; or
  • if issued by a registrar, the registrar for the time being at the venue of the Court at which it was issued or, except in the case of warrant issued under section 80 of the Infringements Act, any other registrar; or
  • any Magistrate.

 Magistrate Holzer in Forbes stated that:

The best interpretation of the power to recall and cancel a warrant is, I think, based on the propositions that:

(i) the power is able to be exercised from time to time since no contrary intention is found in the section;

(ii) the principles of natural justice require a court to give an offender the opportunity of making representations before a judicial order is made against him or her; 

(iii) automatic imprisonment of vulnerable offenders for non-payment of fines or non-compliance with other orders for payments of money should be resisted unless as a last resort (see Justice Emerton in Taha at [56]-[57] and the leading judgment of Lord Roskill in Re Wilson at 759;

(iv) the Infringements Act was not intended to imprison people who cannot understand the instalment order or control their affairs in a way which enables them to comply with the order;

(v) the Court has power to control its own processes to prevent injustice, despite any statutory limitations on jurisdiction;

(vi) the Court's implied power to prevent an abuse of process;

(vii) Sections 32(1) and 21 of the Charter of Rights and Responsibilities Act 2006 supports such an interpretation;

(viii) such power exists whether the warrant is executed or not, as it does not become discharged or spent; and

(ix) Section 69 of the Sentencing Act 1991 is no longer contained within the same Division as Section 61, but now contained in a separate Division of Part 3B

Based on the above propositions he found that: 'I have power to consider the making of an order recalling and cancelling the warrant in question.  There is no prohibition for the Court in issuing a fresh warrant for the same purpose as the recalled warrant (Section 58(1A) of the Magistrates' Court Act), and any fines, fees or costs again becoming enforceable (by analogy through Section 58(4) of the Magistrates' Court Act).

Further, Magistrate Holzer stated that the discretion set out in section 58(1) of the Magistrates' Court Act is unfettered and outlined a number of factors that may be relevant to the exercise of discretion in that case.  They include:

  • The amount of the default;
  • The period of the default;
  • The reason for the default;
  • Any steps taken by the offender to address the default and the timing of any such steps; and
  • Any hardship or injustice that would result from the enforcement of the warrants.

In that case, the applicant had been diagnosed as having a borderline personality disorder, post traumatic stress disorder, and a substance disorder.  She had been subject to a long-standing abusive relationship.  After an imprisonment in default of an instalment order had been made, she had made two payments but was 12 days late for her third payment.  The registrar did not accept the third payment because a warrant had already been issued for her imprisonment under section 68(b) of the Magistrates' Court Act.  As there had only been one default in payment of $40 which was sought to be rectified promptly and the applicant was willing to comply with the payment plan, Magistrate Holzer ordered that the warrant to imprison be recalled and cancelled and that the instalment order be reinstated. 

We note, however, that for many of Homeless Law’s clients, re-instatement of the payment plan may not be an appropriate outcome because they are financially unable to keep up with the repayments.

Application to have the original order varied or set aside

Subject to your client's instructions, in addition to applying for the imprisonment warrant to be cancelled, you should make submissions requesting that the matter is re-opened (or that the original order is varied or set aside) and that a new order is made under section 160 of the Infringements Act (for example, that the outstanding amounts are discharged or substantially reduced under sections 160(2) or (3)).  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.

As noted above, there is uncertainty amongst Magistrates about whether, after cancelling a warrant under section 58 of the Magistrates' Court Act, they can re-open the original order under section 160 of the Act (to, for example, discharge the infringements under sections 160(2) or (3)) or whether their jurisdiction is limited to simply reinstating the existing payment plan.

A summary of the Supreme Court of Victoria Court of Appeal decision in Victoria Police Toll Enforcement & Ors v Taha & Ors and State of Victoria v Brookes & Anor [2013] VSCA 37, is contained in the “Making submissions in a section 160 hearing” of the ‘Hearing and sentencing under section 160’ page.    

While the main impact of Taha is that it creates an obligation on Magistrates to make reasonable inquiries (including about a person's special circumstances) when sentencing a person under section 160 of the Infringements Act, it is arguable that Taha also impacts on applications being made to recall and cancel a warrant under section 58 of the Magistrates' Court Act.  It is arguable that Taha can be relied on to support the submission that, after cancelling a warrant under section 58 of the Magistrates' Court Act, a Magistrate can re-open an order under section 160  of the Infringements Act.  This may be done by relying on the decision in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117 to assert that, because the decision was affected by jurisdictional error (i.e. the necessary inquiries about the person's circumstances and lesser sentences under section 160 had not been made), there was no decision at all and, therefore, the decision is not being revisited, but rather made for the first time.

These arguments could be presented to the Court as part of the application for cancellation of the warrant and submissions about why the underlying order should be set aside or varied.  These 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.  

More information about making submissions under section 160 of the Infringements Act (in the event that the order is re-opened) is available here.

The process of making an application for the warrant to be cancelled and the order re-opened

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 warrant recalled and cancelled. There might be scope to have the sentence amended, but this depends on many factors and will need to be considered in more detail.
  • 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 the client was sentenced under s.160(1) or ss 160(2) or (3);
  • If the client was sentenced under s.160(1), they should apply for a rehearing under s.160B;
  • obtain copies of supporting documentation (including letters from the client's GP and other support workers);
  • 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 to have the warrant recalled and cancelled and asking whether there is scope to hold off from executing the warrant;
  • advising the client of the limited options and legal uncertainty of these matters and the risk of imprisonment; and
  • making an application to the Magistrates' Court to have the warrant recalled and cancelled under section 58 of the Magistrates' Court Act.

3.    Making the application

Making an application to cancel the warrant under section 58 of the Magistrates' Court Act is the often the best option to address warrants to imprison where a client cannot apply for a rehearing under s.160B. There are, however, other limited options that may be available, including judicial review and these should also be considered. 

The steps to apply to have a warrant recalled and cancelled under section 58 of the Magistrates' Court Act are:

  • Prepare general application to the Magistrates' Court to have:
    • The warrant recalled and cancelled under section 58 of the Magistrates' Court Act; and
    • The original orders varied or set aside and, in their place, an order made: 
      • that the client's fines be discharged pursuant to section 160 of the Infringements Act (we note that some Magistrates have indicated that they do not have power to do this and will simply re-instate the existing payment order after cancelling the warrant); or
      • such other order in substitution as the court deems fit.
  • 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 experienced special circumstances or other exceptional circumstances, 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, as we understand it, 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 an imprisonment warrant to be cancelled and confirm the time is appropriate;
    • attend court with the client (and, if relevant, counsel); and
    • after filing the application and affidavit and having the matter listed, appear in front of the Magistrate to make oral submissions.

In some cases it may be appropriate to brief counsel to settle the submissions and appear at the Magistrates' Court. Contact Homeless Law staff lawyers if you would like the assistance of pro bono counsel and we may be able to link you with counsel through the Victorian Bar Pro Bono Scheme.

The following template documents can be used as a guide when applying to have an imprisonment warrant set cancelled and the section 160 order revisited: