Fines and infringements

Hearings in the Magistrates’ Court
Each of the scenarios relating to ‘open court’ hearings in the Magistrates Court is discussed below in greater detail, along with information about the different procedures, options and requirements that apply to each type of court hearing. When you attend court after being arrested under an enforcement warrant, there are different options and considerations that apply during the hearing. See ‘Enforcement warrant hearings (‘section 165 hearings’)’ discussed in detail below.

1 You elect to have the matter dealt with in open court

At any time before a fine is registered with Fines Victoria and before a notice of final demand is issued, you can ask the enforcement agency to refer an infringement offence to the Magistrates’ Court (or, in the case of a person under 18 years, to the Children’s Court).
The enforcement agency usually sends you a form with the infringement notice or penalty reminder notice that you can fill in to elect to have the matter referred to court. You can also write to the enforcement agency to request they refer the matter to court.
You may wish to pursue this option if you did not commit the offence or did not receive the infringement notice from the enforcement agency, and you are unable to convince the enforcement agency to withdraw the fine via the internal review system (see ‘Option 3: Ask the enforcement agencyto review its decision’, above).
This option is not available for people who have excessive speeding offences, drink-driving or drug driving offences, or boating offences.
While having the matter heard in open court allows you to put forward your circumstances, it is generally not advisable to refer matters to court if there are other alternatives available (e.g. see ‘4 You apply for an enforcement review on grounds other than special circumstances’, below). This is because the penalties in court proceedings can be harsh and you are likely to end up with a criminal record.
For more information about this process, see ‘Option 6: Dispute the fine and take the matter to court’, above. For more information on sentencing in open court, see ‘Court penalties’, below.

2 The enforcement agency issues a charge and summons

An enforcement agency that issues an infringement notice can choose to withdraw it and refer the offence to an open court hearing instead. This sometimes
occurs where a fine hasn’t been paid within 21 days of the infringement notice being issued.
Where an enforcement agency wants to refer the fine to court, they must first formally withdraw the infringement notice and then issue a charge and summons that sets out details of both the relevant offence, and the future court hearing (i.e. the time, date and location of the hearing).
This option is not available to the enforcement agency if the infringement is registered with Fines Victoria and has progressed to enforcement stage,
or if the fine has been paid off, or if the person has entered a payment arrangement.

3 The enforcement agency refuses to withdraw a fine after conducting an internal review

As discussed under ‘Option 3: Ask the enforcement agency to review its decision’, above, you can ask the enforcement agency to conduct an internal review
of its decision to issue a fine. This can only be done before the fine is registered with Fines Victoria.
After receiving an application for an internal review, the enforcement agency can withdraw the fine unconditionally, or withdraw the fine and issue a warning, or confirm the fine, or withdraw the fine and refer the matter to open court for a hearing.
If the internal review application was made on the basis of the applicant’s special circumstances, the enforcement agency does not have the power to refer
the matter to court.
If a fine is referred to court, the enforcement agency withdraws the infringement notice and files a charge with the Magistrates’ Court giving details of
the offence it believes you have committed. You then receive a summons telling you when and where you must appear in court to answer the charge.

4 You apply for an enforcement review on grounds other than special circumstances

Where an application for an enforcement review has been lodged on grounds other than an applicant’s special circumstances and Fines Victoria considers there is sufficient evidence to cancel the enforcement, Fines Victoria can cancel enforcement of the infringement and refer the matter back to the

enforcement agency. If the enforcement agency does nothing, the matter is withdrawn.

However, if the enforcement agency decides to prosecute the matter, it must issue a charge and summons and then the matter will be listed in open court before a magistrate.

Where a case is referred to open court in these circumstances, you (the defendant) or your lawyer will receive a notice of hearing. This notice sets out a ‘mention date’:

• if you plead guilty, the matter will be heard and determined on the mention date;
• if you plead not guilty, the matter will generally be held as a mention hearing and will be adjourned and set down for a contested hearing on a later date.

Matters are generally heard in the court nearest to where the offence allegedly occurred. If you have multiple matters, they may be referred to different courts. If you wish to have all the matters dealt with at once, in the same court, try to persuade the agencies involved to agree to attend a single hearing. You can also ask the Magistrates’ Court to consolidate and transfer the cases to be listed at the same court, for a single hearing. You may need to obtain the consent of the informants to adjourn and transfer the matters. The contact details of the informant will be contained in the brief served in advance of the hearing. To transfer cases to a different court so a number of cases can be heard together, complete a ‘Form 15 – Case Abridgement Application’, which can be found on the Magistrates’ Court website.

If you plead guilty, or are found to be guilty, you will have a finding of guilt on your criminal record. However, the conviction will be immediately ‘spent’ as it originated as an infringement. Note that irrespective of the sentence, if the offence attracts demerit points, these will still be applied if you plead or are found guilty.

For more information on court procedures, see ‘Appearing in the Magistrates’ Court’, below.

5. You apply for an enforcement review on the grounds of special circumstances

Where an application for an enforcement review is made on the basis of special circumstances and the application is accepted by Fines Victoria, enforcement of the fine is cancelled, and it is referred back to the enforcement agency. If the enforcement agency decides to prosecute the matter, they must withdraw the infringement notice and issue a charge and summons that sets out details of both the relevant offence and the future court hearing (i.e. the time, date and location of the hearing).

This process results in individual matters being heard at the Magistrates’ Court closest to where the offence was committed or the court closest to your residential address. If a special circumstances matter is listed at a Magistrates’ Court, see ‘Appearing in the Magistrates’ Court’, below.

If you wish to have all the matters dealt with at once in the same court, you can contact the agencies involved to ask them to agree to attend a single hearing. You can also ask the Magistrates’ Court to list the cases at the same court, for a single hearing. For more information on court procedures, see ‘Appearing in the Magistrates’ Court’, below.

Because a special circumstances application requires you to accept that you have committed an offence, it is generally advisable to plead guilty and rely on your special circumstances in your guilty plea. If you are in this situation, you should seek legal advice (see Chapter 2.4: Legal services that can help).

Where you plead or are found guilty, sentences in open court are variable and depend on the personal circumstances and offence circumstances you present to the court. It is important to tell the court if you have special circumstances and to present evidence of these (e.g. the support letter that accompanied your enforcement review application). It is also important to insist on presenting your special circumstances, any rehabilitative steps you have taken, and that your condition or circumstances (e.g. mental or intellectual disability or illness, drug or alcohol addiction, homelessness or family violence) ‘contributed to’ you having a significantly reduced capacity to understand and control the conduct constituting the offence. Or you meet the ‘long-term circumstances’ test, which means you can show that you are experiencing circumstances that are long-term and disabling, that are more than just financial hardship, and due to these circumstances it is not possible for you to either pay your fines or deal with them in other ways (see also ‘Option 3: Ask the enforcement agency to review its decision’, above, for changes in relation to ‘special circumstances’).

All the normal sentencing options for an open court hearing are available. You may be sentenced to an undertaking to be of good behaviour for a specified period after which the matter is dismissed, or you may receive a court fine, or your matter may be dismissed. An adjourned undertaking can have certain conditions; for example, the person must attend drug and alcohol counselling, or see a particular doctor and provide proof of this to the court. It is possible for your driver licence to be suspended for a certain period of time. The prosecuting agency may also seek, and be awarded, costs. Therefore, it is possible that the outcome will be more expensive than if you had paid the fines to begin with.

It  is  helpful  if  the  special  circumstances applicant is represented by a lawyer at the hearing, as a lawyer can convey the information about special circumstances to the judicial registrar or to the magistrate efficiently and concisely. Note that Victoria Legal Aid provides a duty lawyer service for open court infringements matters where a person is at real risk of being imprisoned. You can also contact your local community legal centre to see if they can represent you (see Chapter 2.4: Legal services that can help).

Note that in cases involving toll road offences (i.e. driving on Linkt or EastLink without paying), the court may impose an administrative costs order of $40 for each toll offence for all matters where you are found guilty regardless of whether a conviction is recorded, unless it is satisfied that you are experiencing acute financial hardship or you have special circumstances. This is a judgment debt and is generally not enforced by the tolling companies. However, it is recommended that you seek legal advice about the prospects of this judgment debt being enforced against you (see Chapter 2.4: Legal services that can help).

If you plead or are found guilty, you will have a finding of guilt on your criminal record. (For more information on criminal records, see Chapter 3.9: Understanding criminal records.) Note that although the court might dismiss the charge, if the offence attracts demerit points, these will still be applied if you plead or are found guilty.

For more information about appearing in court, see Chapter 1.3: Sentencing in the Magistrates’ Court and Chapter 2.3: Representing yourself in court.

Court penalties

Sentencing options in the Magistrates’ Court range from imprisonment to unconditional dismissal; for a more detailed discussion of these options, see Chapter 1.3: Sentencing in the Magistrates’ Court. The Magistrates’ Court also has the power to impose a fine that is smaller or larger than the infringement penalty set out in the legislation that created the offence. If there are several offences involved, the magistrate may impose a single penalty covering all the offences. The court can also grant an order allowing you to pay the fine in instalments or giving you extra time to pay. Alternatively, the court may convert the fines to community work.

As mentioned in ‘Going to court’, above, having a fine heard before a magistrate in open court can be risky. This is mainly because in open court proceedings, a magistrate may not consider your special circumstances or other forms of hardship before sentencing you. As a result, there is a risk that higher penalties are imposed, or a conviction is recorded against you, or you have to pay court costs. It is important that you seek legal advice before attending any court hearing in relation to infringements (see Chapter 2.4: Legal services that can help).

Enforcement warrant hearings (‘section 165 hearings’)

If you are arrested under an enforcement warrant for infringement offences and you are not eligible for a community work permit (CWP) (see ‘Arrest and community work permits’, above); or you do not consent to a CWP; or you breach a condition of a CWP, you will be brought before the Magistrates’ Court for a hearing.

These hearings are often referred to as ‘PEW hearings’ (penalty enforcement warrant hearings), or ‘section 165 hearings’ – this is a reference to section 165 of the FR Act, which sets out the magistrate’s powers in these hearings.

During these hearings, there are a range of sentencing options available to a magistrate. The most severe sentencing option is a prison term of one day for each penalty unit that you owe up to a maximum term of 24 months’ imprisonment. However, for the reasons explained below, this outcome is incredibly rare.

In these hearings, if the court is satisfied that:

• you have a mental or intellectual impairment, disorder, disease or illness;
• you have special circumstances;
• considering your situation, imprisonment would be excessive, disproportionate or unduly harsh; or
• you are a victim of family violence that substantially contributed to you being unable to control the conduct that constituted an offence,

then a court can:

• discharge your fines in full;
• discharge part of your fines and make an order giving you time to pay the outstanding amount, or make an instalment order with a warrant to arrest if the order is breached;
• discharge part of the fines and order imprisonment for a maximum of 24 months, subject to time to pay or an instalment order (also called an imprisonment in lieu (i.e. instead of) order – if you default on the order, a warrant to imprison you can be issued);
• make a fine default unpaid community work order; or
• adjourn the matter for up to six months.

If the court is not satisfied of one of the matters above, it can make any of the following orders:

• a fine default unpaid community work order (one hour for each penalty unit of fines up to 500 hours); or
• an order giving you time to pay your fines; or
• an order that you pay your fines in instalments; or
• an order adjourning the proceeding for six months; or
• an imprisonment order of one day for each penalty unit, to a maximum of 24 months (including an imprisonment in lieu order, which is an instalment order where if you default, a warrant to imprison you can be issued).

While imprisonment is theoretically possible, the FR Act specifically forbids the court from imposing a term of imprisonment if the reason you have not paid your fines is because you do not have capacity to pay, or you have some other reasonable excuse for non-payment.

The FR Act also specifically prohibits a magistrate from making an order of imprisonment unless they are satisfied that no other order is appropriate considering all of the circumstances. These conditions also apply to imprisonment in lieu orders.

During section 165 hearings, the court has an obligation to proactively enquire into your circumstances and determine if you have special circumstances. This is regardless of whether you or your lawyers specifically tell the court that you have special circumstances (see Victorian Police Toll Enforcement v Taha; Victoria v Brookes [2013] VSCA 37).

If you are sentenced to an instalment order and you cannot keep up with the repayments, you can apply to the court for a variation of the instalment order. This can only occur if:

• your circumstances have materially changed since the instalment order was made and you cannot keep up with the payments; or
• your circumstances were not accurately presented to the court when the instalment order was made.

If you do not comply with an instalment order, or a time to pay order, or a community work order, the court can issue a warrant to arrest you and bring you back before court. At this hearing, the court can confirm the original instalment order or time to pay order or can consider the matter afresh and impose any of the other orders discussed above, noting again that imprisonment must always be a last resort.

If you are sentenced to imprisonment or an imprisonment in lieu order and none of your fines are discharged, you may be able to apply for a rehearing in limited circumstances. You can apply to the court for a rehearing on the basis that:

• your special circumstances, mental illness or intellectual impairment were not taken into account by the court or were not presented to the court at the time of the section 165 hearing; or
• evidence was not taken into account by, or presented to, the court that imprisonment is excessive, disproportionate or unduly harsh at the time of the section 165 hearing.

An application for a rehearing can be lodged at any stage after the initial hearing, even if you have defaulted on a payment plan or have been taken into custody. The court only rehears the matter once, so it is essential that you obtain legal advice and ideally legal representation before a rehearing. It is advisable to request an adjournment if you are unable to find a lawyer to represent you before the rehearing.

You can apply for bail pending a rehearing and to ‘stay’ (stop) the imprisonment order until the rehearing is determined.

If your rehearing application is successful, the court may cancel the imprisonment order and exercise any of its powers under section 165 of the FR Act. If your rehearing application is not successful, the court must confirm the original order and may issue a warrant and lift any stay on an instalment order.

If you fail to attend a rehearing and your matter is struck out, you can make another application for a rehearing under section 167(4) of the FR Act. You are required to obtain leave from the Magistrates’ Court to reapply for a rehearing.

If you are sentenced to an imprisonment in lieu order and breach this order, the court can issue an imprisonment warrant without holding a further hearing and you can be imprisoned. If this happens, it is important to urgently get legal advice and consider your options to apply to the court to recall and cancel the imprisonment warrant (under section 58 of the Magistrates’ Court Act) and to vary your imprisonment in lieu order or to ask the court for a rehearing.

Appearing in the Magistrates’ Court

You (and your lawyer, if you have one) should arrive at the court at least 20 minutes before the hearing time. You or your lawyer need to announce your ‘appearance’ in person with the bench clerk in the court where the matter is listed to be heard. This means approaching the magistrate’s bench clerk before the magistrate enters the court and telling them your name, so the magistrate knows you are present and ready for your matter to be heard.

It is important for you to be present at the hearing, even if you have a lawyer. Generally, this is your only opportunity to argue your case before a magistrate. If you do not appear, the court is more likely to rule against you and to impose a harsher sentence, as you are not present to tell the court about your personal and other circumstances. Also, some sentences (e.g. an adjournment on an undertaking of good behaviour) require you to consent to the order, so if you want these more lenient sentencing options to be available to you, you need to attend court.

If you have an enforcement warrant hearing and are on bail, it is very important for you to attend court. If you were arrested by the sheriff under an enforcement warrant for infringement offences and have been released on bail by signing an ‘undertaking of bail’, you must go to court for your hearing otherwise you can be charged with a breach of bail.

When you come to court, you should bring with you supporting material about your personal and other circumstances.

When you come to court, it is also helpful if a case worker or social worker is able to attend the hearing and speak to your circumstances (including special circumstances grounds), as this sends a strong message to the court that you are being supported and that you are addressing the underlying causes of the alleged offending. The worker’s presence also enables the court to clarify any questions or gaps that might appear in the worker’s report.

When the associate calls your matter, you or your lawyer will proceed to the bar table and, if you have a lawyer, they will announce that they are appearing for you.

For open court hearings, the magistrate will generally ask the enforcement agency prosecutor for an outline of the alleged offences and will ask whether you plead guilty or not guilty. If you plead not guilty, the matter will be adjourned to a contest date for further hearing. If you plead guilty, the magistrate will ask for sentencing submissions, which gives you or your lawyer an opportunity to explain your circumstances and suggest a penalty for the magistrate to consider.

For enforcement warrant hearings, the magistrate may ask for submissions about s 165 of the FR Act which gives you or your lawyer an opportunity to explain your circumstances and suggest a penalty for the magistrate to consider. Your supporting material is often critical in these matters. The type of material you may rely on includes psychological reports, medical reports, character references, police reports in the case of family violence and budgets showing limited income or supporting letters showing caring responsibilities. The court may adjourn the matter for you to obtain supporting material. You can also request an adjournment to obtain supporting material if you think you will be able to get it. Alternatively, you or your lawyer can make submissions, giving evidence from the bar table.

For more information about the Magistrates’ Court, see Chapter 2.3: Representing yourself in court.