Infringements

Infringements

Cancel Loading...

‘Calling in’ infringement fines when your client is in jail

Important changes from 1 July 2017

From 1 July 2017, the Infringements Act 2006 (Vic) was changed as part of Victoria's fines reform process, including new ‘social justice initiatives' that affect people experiencing vulnerability. On 31 December 2017, the Fines Reform Act 2014 (Vic) commenced, creating Fines Victoria. This resulted in significant further changes to the infringements system and substantially shorter timeframes for dealing with infringements and fines.

Please be aware of these reforms in relation to any infringements assistance that you are providing to your clients.

We are in the process of updating Homeless Law in Practice. 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.

Note: The process and outcomes available for calling in infringement differs slightly from court fines. If your client is seeking to call in court fines, please see ‘calling in court fines’.

 

The time served scheme allows prisoners who have registered infringement fines or court fines to expiate their fines by serving time in prison, concurrently with existing time spent on remand in custody for other offences. In most cases this will not result in the client having to spend additional time in prison and will enable the client’s to leave prison debt free.

 

Time Served orders

 

If your client is in custody and is the subject of a relevant outstanding fine registered with Fines Victoria, they can request in writing under s 171A(1) of the Fines Reform Act 2014 (Vic) (FRA), that the Director of Fines Victoria apply to the Magistrates’ Court for an order for the client to serve a term of imprisonment in default of payment of their infringement fines (also called ‘calling in’, ‘a time served order’, rolling over fines or the ‘sheriff prison program’).

 

 

The value of a penalty unit changes each year and is set by Department of Treasury and Finance. The power to set a penalty unit derives from ss 5(2) and 6(b) of the Monetary Units Act 2004 (Vic) which are then required to be published in the Victorian Gazette.

 

 

For the purpose of this application, one day spent in prison equates to one penalty unit of debt expiated whilst in custody pursuant to s 171B(1) of the FRA.

Pursuant to ss 171A(2)(a) and 171B(3) FRA, application for a time served order must be made whilst the person is in custody, although if a person is released from custody, after the application is made but before it is determined, the court can still make a time served order for all or part of the fine. The fines do not need to be at the warrant stage, but they must related to offences that occurred before the person went into custody pursuant to s 171A(3) of the FRA.

 

A time served order will be served concurrently with any non-fine related sentence imposed on a person (i.e. at the same time as the current sentence) pursuant to s 171E(2) of the FRA and s 16(2) of the Sentencing Act 1991 (Vic) (SA). The maximum time that can be spent in prison to ‘work off’ an unpaid fines is 24 months or 730 penalty units. The current value of a penalty unit is $161.19 (as at 1 July 2018) (see s 171E(1) of the FRA. Typically a client will not have to serve any extra time under a time served order provided their non-fine related sentence is long enough to cover fines being called in or their existing sentence is not also fine related.

 

Court hearings and having an “excess”.

 

Generally the Magistrates’ Court will hear the application for a time served order administratively and ex parte without the client needing to attend a hearing.

A court attendance however may be required (either in person or by video link) where:

·         where the client’s fines, if called in, would exceed their non-fine related sentence; or

·         if the client is serving a fine related sentence that cannot be served concurrently; or

·         the client has already completed their sentence.

 

This is called having an “excess”. A court attendance is needed in these cases is because it is not possible for the existing sentence to be wholly served concurrently (either due to the excess, or because it is too late once a person has left prison, or because the sentence is fine related and a second fine related sentence must be served cumulatively).

 

Magistrates are given flexible sentencing options for dealing with an excess however and whilst often this will not result in additional prison time, there remains a slight risk that the client may have to spend additional time in custody.

 

In particular where your client:

·                     is only in custody on a fine related sentence; or

·                     has completed the fine related sentence after the Director applies to the court; or

·                     is subject to a time served order, where time imposed under the order exceeds the term of the non-fine related sentence,

And the Court is satisfied that:

·         your client has a mental or intellectual impairment, disorder, disease or illness; or

·         your client has special circumstances within the meaning of s 3(1) of the Infringements Act 2006 (Vic) (IA); or

·         having regard to the person’s situation, imprisonment would be excessive, disproportionate or unduly harsh.

 

The court may order:

·                     the excess fines be discharged in part or in full;

·                     the sentence be served cumulatively (in addition to time already being served);

·                     the person to do unpaid community work; or

·                     a combination of the above; or

·                     an adjournment for further hearing for up to 6 months’ time (upon which one of the above sentences may be exercised (see ss 171C(1), (2) and (3) of the FRA).

 

If however the Court is not satisfied that:

·         your client has a mental or intellectual impairment, disorder, disease or illness; or

·         your client has special circumstances within the meaning of s 3(1) of the IA; or

·         having regard to the person’s situation, imprisonment would be excessive, disproportionate or unduly harsh.

 

The court may order:

·                     the client to do unpaid community work;

·                     give the person extra time to pay the fines;

·                     allow payments to be made in instalments;

·                     adjourn the matter for up to 6 months; or

·                     order the person be imprisoned for one day for each penalty unit to be served cumulatively (see ss 171C(3) and (4) of the FRA).

 

The court however is prohibited from making an order that the person to serve a term of imprisonment cumulatively, if the court is satisfied the person did not have the capacity to pay the fines or had a reasonable excuse for non-payment. The court also must not make an order for more time to be served cumulatively unless it is satisfied that no other possible order available to it, is appropriate in the circumstances of the case (see ss 171C(5) and (6) of the FRA).

If the court makes an order that her person serve a term of imprisonment concurrently and you think that the court did not take into account

·         The client’s mental or intellectual impairment, disorder, disease or illness; or

·         Special circumstances; or

·         Evidence about why a decision to order a concurrent sentence would be excessive, disproportionate or unduly harsh;

A rehearing application may be made under s 171H(1) of the FRA.

Practical matters with calling in fines

In practice, we understand that Fines Victoria will manage the time served scheme and include all registered infringements. Key things to note when advising your client about the option of calling in their fines are:

  • A time served order can be sought against all registered infringement fines and registered collection and enforcement orders for outstanding registered infringement fines (see ss 163 and 171A of the FRA)
  • A time served order can be sought in respect of time spent in custody, regardless of whether or not the person is brought before the court or has since been released from custody after the Director of Fines Victoria applied to the court for a time served order under s 171A(2) of the FRA (see s 171B(3) of the FRA
  • Your client can apply for a time served order when they are in custody (i.e. your client does not need to wait until they are sentenced as used to be the case under the old scheme) (see s 171A(2) of the FRA).
  • Before applying to have their registered infringement fines and enforcement orders called in your client should consider the length of the period of imprisonment they will be required to serve as a result. If the period is longer than the amount of time they have left to serve on their sentence, calling in the fines may have the effect of lengthening the overall period of imprisonment.

See here for a template letter of advice to clients in relation to calling in fines (Nic to check and vet template)