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Hearings in Open Court

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.

Types of open court matters

There are a number of different ways that an infringement matter can be referred to open court:

Infringement notice or penalty reminder stage

  • The enforcement agency can refer the matter to open court under section 17 of the Infringements Act.
  • Your client can elect to have the matter heard in open court pursuant to either section 16 or 30 of the Infringements Act.
  • If your client makes an application for internal review on the grounds of special circumstances under section 22 of the Infringements Act and the enforcement agency declines to withdraw the infringement notice, section 25(3) requires that the matter be referred to open court.
  • If your client makes an application for internal review on grounds other than special circumstances and the enforcement agency declines to withdraw the infringement notice, they may refer the matter to open court pursuant to section 25(1) of the Infringements Act.

Enforcement order or warrant stage before execution

  • If your client applies for revocation of the enforcement order on grounds other than special circumstances under section 65 of the Infringements Act and the Infringements Registrar is satisfied that there are sufficient grounds for revocation, the matter is referred to open court under section 66 of the Infringements Act (where the enforcement agency does not direct otherwise within 21 days).
  • If your client applies for revocation of the enforcement order under section 65 of the Infringements Act and the Infringements Registrar is not satisfied that there are sufficient grounds for revocation, the client can refer the application to open court under section 68 of the Infringements Act.

Infringement warrant stage

  • Your client can be arrested pursuant to the warrant and brought before a Magistrate for sentencing under section 160 of the Infringements Act.

Charge and summons

In certain circumstances, issuing officers have a discretion to issue either an infringement or a charge. Clients may therefore present with a mixture of infringements and open court matters, depending on the exercise of this discretion.

If your client is charged with an offence on summons, they will receive a Charge Sheet requiring them to attend a Magistrates’ Court on a particular date.

If your client has multiple charges from different incidents, they may have a number of different court dates. This is because each matter will be referred to the court nearest to where the offence is alleged to have occurred. Ideally you would have all your client's open court matters consolidated and dealt with together at the same court. However, it is important to note that you can only transfer a matter between courts if the client is pleading guilty and if the prosecuting agency agrees to the transfer.

Appearing at Court

It is important that your client attends the court hearing for a number of reasons, even if they are charged on summons.  You will need to discuss the charge and the evidence with them to establish if they want to plead guilty or not guilty or if an adjournment for further disclosure is required. It is important to prepare the client on what to expect in terms of procedure and likely penalties for a guilty plea.

Before the hearing, you will need to go to the courtroom where the matter is listed and announce your "appearance" with the associate. This means telling the associate your name, your client’s name, how the matter is proceeding and whether it is ready to proceed.

When the associate calls your matter, you will announce that you are appearing on behalf of your client and whether your client is pleading guilty or applying for an adjournment (whether for further disclosure or a not-guilty plea). .

If your client is pleading not guilty, the matter will be adjourned to a later date for contested hearing. If your client is pleading not guilty, please contact Homeless Law for assistance as these hearings can be more complex.

If the matter is proceeding as a plea of guilty, the Magistrate will ask the enforcement agency prosecutor for an outline of the alleged offences. You will then need to make submissions regarding the circumstances of the offending and the client’s personal circumstances. You will also have the opportunity to make a sentencing submission, so it is important to consider in advance what penalty you (and your client) consider appropriate in the circumstances If you are unsure about your sentencing “pitch”, you should contact Homeless Law’s criminal lawyer for assistance.

It can be helpful if a case worker or social worker is present at the hearing, as this sends a strong message to the court that your client is engaging with supports and trying to address the underlying causes of the alleged offending.

Homeless Law’s general policy is not to appear for a client in their absence, unless you have the client’s instructions to apply for an adjournment. If your client is unable to attend their court date, you should obtain these instructions. If you are unable to get instructions to apply for an adjournment and the client fails to appear at court, you should not appear on their behalf. If you have any concerns, you should contact a Homeless Law lawyer to discuss further. Where the accused fails to appear, the magistrate can either issue a warrant to arrest or deal with the matter ex parte (the latter is more likely in the case of minor summary offences). Your client may be able to apply for a rehearing in these circumstances.  


Specific types of open court matters

As mentioned above, there are a number of different ways in which a person can find themselves before open court.  Some of the most common of these are discussed in this section. 

Open court matters where the client has been arrested pursuant to an infringement warrant and is being dealt with under section 160 of the Infringements Act are discussed here.

Matters brought before the court by way of charge and summons are discussed here.

Application for review on basis of special circumstances rejected and automatically referred to open court

Under section 25(3) of the Infringements Act, if a client's application for internal review on the basis of special circumstances is rejected by the enforcement agency, the matter must be referred to court.

This matter will be listed in open court, rather than the Special Circumstances List. 

You may apply to have the matter consolidated if there are other matters listed in the Special Circumstances List, but this is not guaranteed.

The enforcement agency will supply certain information to the court.  The court will allocate a time and place of hearing and the enforcement agency must serve these details on the person at least 14 days before the date of the hearing.  If the person is not served with the details but the court is satisfied that the person is avoiding service or cannot be found after reasonable search and inquiry, then the hearing can proceed in the absence of the person (section 41 of the Infringements Act).

Appeal from Infringements Registrar's refusal to revoke

Where the Infringements Registrar refuses a revocation application, a person can apply under section 68 of the Infringements Act to have the application for revocation referred to the Magistrates' Court. The application is, in effect, an appeal from the decision of the Registrar to refuse the revocation application.

If your client applies in writing within 28 days of the date of the notice, the Infringements Registrar must make this referral to open court.  If the application is made more than 28 days after the date of the notice but within three months, then the Infringements Registrar has the discretion to refer the matter to open court.  An application under section 68 cannot be made later than three months after the notice is received.

Some practice tips in relation to these matters:   

  • The matters are not necessarily listed together and may be listed separately on an agency by agency basis (eg. if a revocation application that dealt with a number of different enforcement orders is rejected).  Once you receive a hearing date, you should write to the court and request that they are consolidated, but if this is refused, you may need to attend separate hearings.
  • At the hearing(s), the Magistrate will first decide whether to revoke the enforcement order and, if this is done, will consider the underlying offences.  It is not guaranteed that they will consider the underlying infringement(s) at the same hearing as the hearing to revoke the enforcement order, but (subject to the client's instructions) you should request that they be considered at the same hearing.  This request will most likely be granted if it is relatively straightforward matter in that the client intends to plead guilty and lead mitigating material regarding sentencing (which is ordinarily the case if the client was initially relying on special circumstances because this entails making a guilty plea).  If the client is contesting the underlying infringements, it is likely that this hearing will be adjourned off.  
  • The sentencing outcomes tend to be more diverse in open court than they are in the Special Circumstances List (where we most often see unconditional dismissal or adjourned undertakings under sections 75 and 76 of the Sentencing Act).  It is still possible that the infringements will be dismissed, but it is also possible that a (small) fine or payment plan will be ordered (together with other sentencing options under the Sentencing Act (such as community corrections orders)).   

Suggested steps for running a matter referred to the Magistrates' Court after an application for revocation has been rejected are:

  • Make sure you request that the matter be referred to court within the prescribed timeframe (28 days from the date of the notice rejecting the application for revocation) (section 68 of the Infringements Act).
  • Send a short letter to the Infringements Registrar stating that, pursuant to section 68 of the Infringements Act, your client would like the matter referred to court, and asking them to advise you of the hearing date.  Send this by both fax and post and keep a record of this (such as the fax transmission) (this suggestion is based on a lawyer's previous experience where the Infringements Registrar denied receiving the request within the prescribed timeframe). 
  • Once you receive the hearing date(s), if needed, write to the registry to request that the hearings be consolidated.
  • Send a short letter to the issuing agency referring to the hearing date(s) and stating that, if the Magistrate grants the revocation of the enforcement orders, you will be requesting that the underlying infringements are also dealt with at this hearing (otherwise, there is a risk that the agency will not have the file and may not be able to proceed on the day).  You can also ask the enforcement agency if they will agree to the application so that it can proceed by consent.
  • In terms of your submissions, because it is in open court you will not be required to fit your submissions within the technical definition of special circumstances under the Infringements Act.  Although this information will of course still be relevant (including supporting material), you should also raise general information about the client's financial or other hardship, engagement with services and any rehabilitation.  Essentially, you are appealing to the Magistrate's discretion in sentencing and trying to establish that a fine (for example) is not an appropriate sentencing outcome for the client.   

Making submissions

The sentencing submissions you make will be specific to the offence being alleged, the client's circumstances and the provision under which the client has been brought before the court. 

In most cases, your client will be being sentenced under the Sentencing Act. There is one exception, which is where your client has been arrested subject to an infringement warrant and will therefore be dealt with under section 160 of the Infringements Act. In this case, your submissions should focus specifically on the court's sentencing options under sections 160(2) and (3) of the Infringements Act (ie the option to discharge the fines on the basis of special circumstances or because imprisonment would be excessive, disproportionate and unduly harsh).

If the client is pleading not guilty

Please call Homeless Law to discuss your matter if your client has indicated that he or she wants to plead not guilty.

Sentencing submissions – if your client is pleading guilty

If your client is pleading guilty to the offence, you should prepare sentencing submissions which clearly set out:

  • each infringement offence and dates;
  • the process by which the matter has been referred to Court;
  • that your client is pleading guilty to the offence;
  • your client’s reason or explanation for committing the offence;
  • your client’s personal circumstances at the time of the offending and at the time of the plea;
  • any rehabilitative or restorative treatment undertaken by the client;
  • your client's financial circumstances (including weekly income and expenses);
  • whether your client has the ability to pay the fines and how payment of the outstanding amounts would exacerbate the client's condition or mental, physical, financial or social hardship;
  • any other individual circumstance of your client that may be relevant;
  • the sentencing option that you consider appropriate in the circumstances.

You should ensure that you have sufficient evidence and supporting documentation available to hand up to the Magistrate.

If you would like guidance on structuring a plea in mitigation, please contact Homeless Law’s criminal lawyer.

Sentencing at Open Court  

If your client is found guilty of the offence(s) in open court, the Magistrate will sentence your client under the Sentencing Act 1991.

Section 5 of the Sentencing Act sets out sentencing guidelines. It provides that the only purposes for which a sentence may be imposed are just punishment, deterrence, rehabilitation and community protection. It further provides that, in sentencing an offender, the court must have regard to, among other things, the nature and gravity of the offence, the offender's culpability and degree of responsibility for the offence, whether the offender pleaded guilty to the offence and the presence of any aggravating or mitigating factor concerning the offender or any other relevant circumstances.

Courts are required by sections 5(3) - (7) of the Sentencing Act to not impose a sentence that is more severe than that which is necessary to achieve the relevant sentencing purpose.  In particular, courts must not impose a sentence that involves the confinement of the offender unless it considers that the purpose for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender. 

Courts may make conviction or non-conviction orders. Section 8 of the Sentencing Act provides that, in exercising its discretion whether or not to record a conviction, the court must consider, among other things, the character and past history of the offender and the impact of recording a conviction on the offender's economic or social well-being or on their employment prospects.

The court's sentencing options under the Sentencing Act include (in decreasing order of severity):

  • imprisonment;
  • drug treatment order (DTO) - DTOs may be made by the Victorian Drug Court. A DTO has two parts: a treatment and supervision part (which consists of conditions addressing the defendant's drug or alcohol dependency); and a custodial part (which is suspended pending satisfactory completion of the treatment and supervision part) (section 18z);
  • youth justice or residential centre order - a youth justice or residential centre order may be imposed for young offenders (aged 18 or more but under 21 at the day of the court hearing) for a maximum period of up to 24 months so that they are not sent to an adult prison (section 32); 
  • community correction order (CCO) - CCOs may be ordered with or without convictions and may require a pre-sentence report, up to two years of unpaid community work, a drug and alcohol assessment and mandatory reporting. CCOs may also impose other conditions such as treatment and rehabilitation, restrictions on use of alcohol or drugs or association with certain people or where the defendant may reside (Part 3A);
  • fine - a fine is a monetary penalty imposed by the court (see Part 3B). Court-imposed fines can be imposed with or without a conviction (section 7). The court must take into account the defendant's financial circumstances and the nature of the burden that payment of the fine will impose (section 52). A fine may be paid by instalment or made default to unpaid community work orders (section 64). If your client receives a court-imposed fine, click here for more information.
  • adjournment with conviction - a defendant may be convicted of an offence but have their case adjourned for up to 60 months and be released on an undertaking of good behaviour and compliance with any other special conditions (section 72). The case will be dismissed following the expiration of the adjournment;
  • adjournment without conviction - a defendant, after pleading guilty, may have their case adjourned for up to 60 months on an undertaking of good behaviour and compliance with any other special conditions (section 75). The case will be dismissed following the expiration of the adjournment;
  • dismissal with conviction - a defendant may also be convicted and discharged for any offence (section 73);
  • dismissal without conviction - if a court is satisfied that a person is guilty of an offence, then the court may, without recording a conviction, dismiss the charge (section 76);
  • cancel/suspend licence or permit - the court has additional powers to suspend/cancel a person's driver's licence (section 89A);
  • deferral of sentence - the court can defer sentences for up to 12 months for suitable defendants regardless of age for the defendant's rehabilitation for example (section 83A).

For the majority of Homeless Law clients, an unconditional dismissal (under section 76 of the Sentencing Act ) or an adjournment without conviction on conditions (under section 75 of the Sentencing Act ) will be the most appropriate sentencing disposition. The latter may be used to enable the court to tailor orders requiring, for example, that the defendant comply with a case management plan prepared by their case worker, thereby addressing the underlying causes of their offending behaviours.

We note, however, that sentencing in open court can sometimes be harsher than in the Special Circumstances List, so you will need to be aware of other sentences that might be imposed (for example, fines) and present clear, evidence-based arguments as to why a lesser sentence is more appropriate. 

Important issues for you to advise your client about are discussed in more detail in these sections:

If you have a matter in open court and need further guidance, you should contact the Homeless Law lawyers.