Infringements

Infringements

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Apply for a fine conversion order

If your client wishes to convert their outstanding fine into an order to do unpaid community work, your client can make an application to the Magistrates' Court under section 65(1) of the Sentencing Act 1991 (Vic) (SA) for a fine conversion order under s 64(1) of the SA.

Your client will need to attend a Magistrates' Court and submit an application with the registrar using Form 48 of the Magistrates’ Court Criminal Procedure Rules 2009 (Vic). There is no fee payable to submit this application. The registrar will usually only grant an application where your client is unemployed or if there is some exceptional reason why the fine cannot be paid off by instalments.

The registrar is likely to ask your client questions about their financial situation and request to see your client's financial records or documentation to support your client's application. In some cases, your client may be required to swear an affidavit as to their financial situation.

If your client's application to convert a fine to community work is granted, your client will be asked to sign a form and be required to report to community corrections by 4:00 pm, usually on that day or the next day. It will be up to community corrections as to when and where your client is required to work and the type of work your client will need to perform. Your client will be required to do a minimum 8 hours of work which converts 0.2 penalty units for every 1 hour worked (ss 64(1) and 69O of the SA).

Your client should consider whether they will actually be able to do unpaid community work and to comply with the strict conditions. If your client does not comply with the conditions, they could face more severe consequences. Accordingly, when advising your client about the option to do community work, you should keep in mind whether the client:

  • has options available to them (for example, an application to vary or cancel the order (ss 69I and 69J of the SA);
  • consents to a conversion order;
  • is eligible for a conversion order; and
  • would be able to comply with the conditions in the conversion order.

Eligibility

Your client will be eligible for a conversion order if:

  • the outstanding fine does not exceed an amount equivalent to the value of 100 penalty units. The value of a penalty unit varies each financial year according to the amount fixed and published in the Government Gazette each year (s 5(3) of the Monetary Units act 2004 (Vic));
  • your client agrees to work a minimum of 8 hours and a maximum of 500 hours; and
  • your client consents to performing unpaid community work.

Conditions of a fine conversion order

If your client is ordered to do unpaid community work, then they will effectively work off the outstanding amount of the fine at a rate of 0.2 penalty units per hour (s 69O of the SA).

Your client cannot work more than 20 hours in a seven day period unless they have requested to do so and signs a written consent to working additional hours (ss 69Q(2) and (3) of the SA). 

The total number of hours worked cannot exceed the following time periods (s 69Q of the SA):

Number of hours

Period

376 to 500

24 months

251 to 275

18 months

126 to 250

12 months

51 to 125

6 months

50 or less

3 months

 

Your client will also be subject to the following mandatory conditions:

  • your client cannot commit, whether in or outside Victoria, an offence punishable by imprisonment;
  • your client must report to, and receive visits from the Secretary during the period of the order;
  • your client must report to a specified community corrections centre within two clear working days after the order comes into force;
  • your client must report to, and receive visits from, a community corrections officer;
  • your client must notify the Secretary of any change of address or employment within two clear working days after the change;
  • your client cannot leave Victoria without the permission of the Secretary; and
  • your client must comply with any instruction given by the Secretary that it is necessary for the Secretary to give to ensure that he or she complies with the order (s 69V of the SA).

Breach of conditions of a fine conversion order

If your client contravenes the conditions of a fine conversion order, they may be charged (s 83ADA of the SA). A proceeding for an offence is commenced by filing a charge sheet (s 83AG(1) of the SA).

A proceeding under s 83AG(1) of the SA, must be commenced within 12 months of the date the fine conversion order ceases to be in force (s 83AH of the SA). Once a proceeding is commenced, the Court may issue a summons or warrant to arrest your client (s 12 of the Criminal Procedure Act 2009 (Vic)). If your client is arrested, they will be brought before the Magistrates' Court (s 83AI(2) of the SA).

If the Magistrate finds your client guilty of the offence, the Magistrate may impose a Level 10 fine of up to 10 penalty units (s 83ADA of the SA).

Where your client is found guilty, in addition to sentencing your client, the Court must:

  • confirm the order originally made; or
  • vary the order; or
  • cancel the order and re-sentence the client; or
  • cancel the order and make no further order with respect to the offence (s 83ASA(1) of the SA).

Further, if the court is satisfied that either:

a)     the circumstances of your client have materially altered since the fines work order was made and as a result your client was unable to comply with the order; or

b)    the circumstances of the offender were wrongly stated or not accurately presented in court

Then the court may vary the order in any manner including by:

a)     discharging the outstanding fine(s) in full, or

b)    discharging up to two thirds of the outstanding fine(s); or

c)     discharging up to two thirds of the outstanding fine(s) and ordering that your client be sentenced to an imprisonment in lieu order for the remaining amounts; or

d)    Make an adjournment order for 6 months and in order to contemplate one of the other 3 sentencing dispositions once the hearing resumes (s 83ASA(3) of the SA).

A court, in determining how to sentence the client must take into account the extent to which they have complied with the order (s 83ASA(6) of the SA).

In sentencing a person for a contravention of a fine conversion order, if the Court considers that the options above are not adequate because:

  • of the nature of the offence; and
  • of the characteristics of the offender; and
  • the offender has intentionally refused to pay the fine or instalment and to perform unpaid community work,

the Court may impose a sentence of imprisonment of one day for each penalty unit or part of a penalty unit then remaining unpaid up to a maximum of 24 months (s 83ASA(7) of the SA).

Variation or cancellation of a fine conversion order

Either your client or a representative of the state (such as a community corrections officer or a police officer) can apply to the Magistrates' Court to vary or cancel the fine conversion order or an unpaid community work order while it is in force (ss 68 and 69J of the SA).

The Magistrate may confirm, vary or cancel a fine conversion order or fine default unpaid community work order and re-sentence your client (ss 67(2) and 69I(2) of the SA) if the court is satisfied that:

  • the circumstances of your client have materially altered since the order was made resulting in your client being unable to comply with the order;
  • the circumstances of your client were wrongly stated or were not accurately presented to the court before the order was made; or
  • your client no longer consents to the order.

The Magistrate must decide what order it will make on the basis of its assessment of the extent to which your client has complied with the order.

Part payment of outstanding fines to reduce community service

While the conversion order is in force, your client can pay part of the outstanding fines which will reduce the number of hours that your client is required to work (calculated by 0.2 penalty units per hour (ss 69U and 69O of the SA).