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Court hearing

Information about a magistrate's options if a person does not have enough prison time to expiate their fines or if the prisoner has already left prison.

Hearings are usually held ex parte unless the prisoner has more fines that can be expiated under the scheme. This is called 'having an excess'. If this happens the Director of Fines Victoria ('the director') will organise for the prisoner to attend court by video conference.

See s. 171B—Fines Reform Act 2014 (Vic)(opens in a new window).

Concurrent or cumulative sentences

Concurrently means at the same time as the prison sentence for other matters.
Cumulatively means that the sentence for the fines will not begin until after the prisoner has served their time in prison for the other criminal matters that they were sentenced for.

Concurrently with existing sentence

If the magistrate makes an order allowing the prisoner to serve time in prison for the outstanding amount of the infringement fines owed, the order will specify that the prison sentence for the fines is to be served concurrently. That is the sentence will be served at the same time as the sentence for which the prisoner was sentenced to prison.

There are exceptions to this where:

  • the sentence imposed for the amount of the outstanding fines is longer than the sentence that they are currently serving. This is called having an excess.
  • the prisoner is serving a prison sentence for non-payment of an infringement fine, the time-served sentence must be served cumulatively.

See s. 171E, 171C—Fines Reform Act 2014 (Vic)(opens in a new window) and Court hearing.

Sentence for court fine

A person who is already in prison because of non-payment of a court fine (or infringement) must serve their sentence cumulatively unless the court directs otherwise.

See s. 16(2), 16A—Sentencing Act 1991 (Vic)(opens in a new window).

Importantly, the magistrate can also order a stay.

When a prisoner may have to attend court

The prisoner must attend court by videoconference if the prisoner:

  • is in custody for a non-fine related sentence and there is an excess
  • is serving a sentence for a fine related matter, or
  • had already completed their sentence when the director applied to court.

The reason that the person has to attend court under these circumstances is that it is not possible for the existing sentence to be wholly served concurrently. The magistrate has many options for dealing with fines if there is an excess, but there is a slight risk that the prisoner may have to spend extra time in prison.

Orders the court can make

The possible orders the court can make depend on whether the magistrate is satisfied that special conditions apply to the prisoner's situation. The magistrate may make other orders if satisfied that:

  • the person has a mental or intellectual impairment, disorder, disease or illness
  • that special circumstances apply in relation to the person, or
  • if (due to the person's circumstances) prison would be excessive, disproportionate or unduly harsh.

See s. 171C(2)—Fines Reform Act 2014 (Vic)(opens in a new window).

Orders a court can make where special circumstances or conditions exist

If the magistrate is satisfied that at least one of the circumstances or conditions apply to the person, the magistrate may order that:

  • the registered infringement fine be discharged in full (or in part)
  • the prison sentence be served cumulatively (in addition to the time they are currently serving)
  • the person do unpaid community work, or
  • that the matter be adjourned for a further hearing in up to 6 months time.

If the court orders that a fine be discharged in part, they may make an order that requires the person to pay the remainder of the fine by instalments, or may give the person time to pay.

See ss. 171A, 171C, 171D, 171E—Fines Reform Act 2014 (Vic)(opens in a new window) and s. 69D—Sentencing Act 1991 (Vic)(opens in a new window).

Orders court can make if no special circumstances or conditions

Where the magistrate is not satisfied that there are special reasons for leniency the court may also order that:

  • a person do unpaid community work
  • the person be given time to pay
  • the person pay off the fine by instalments
  • the matter be adjourned for up to 6 months (on any terms they think are fit), or
  • a person to be imprisoned for one day for each penalty unit or part thereof for up to 24 months.

See s. 171C(4)—Fines Reform Act 2014 (Vic)(opens in a new window).

Restrictions on ordering a prison term

A court must not order that the person serve their prison sentence cumulatively (so after completing their current sentence) or for a fixed term if the person satisfies the court that they did not have the capacity to pay the fine or if they had another good reason for non-payment.

The court must also be satisfied that there is no other order that would be appropriate, all circumstances considered. The director's enforcement and payment report will assist them when they are making a decision.

If the court orders a prison term for defaulting on the payment of any infringement fine, the court may issue a warrant to imprison or may make an instalment order for the payment of the remainder of the fine.

See ss. 171C(4),(5), 171D—Fines Reform Act 2014 (Vic)(opens in a new window) and Magistrates' Court Act 1989 (Vic)(opens in a new window).

Applying for a rehearing

If a court makes an order for a term of imprisonment (under s. 171C(4)(e)) the person can apply for a rehearing of the matter if at the time of hearing:

  • the person had a mental or intellectual impairment, disorder, disease or illness, intellectual, or
  • special circumstances applied to the person

and this was not taken into account at the time of the hearing.

The person may also apply for a rehearing if at the time of the hearing no evidence was taken into account by the court about whether the decision to imprison the person was excessive, disproportionate, and unduly harsh.

See ss. 171C(4)(e), 171H—Fines Reform Act 2014 (Vic)(opens in a new window).

More information

Legislation

Fines Reform Act 2014 (Vic)

  • s. 171A—application of the director on behalf of the person in custody
  • s. 171B—time served orders
  • s. 171C—orders of Magistrates' Court for any registered infringement fine or any remaining amount
  • s. 171D—extra court powers to make a time to pay or instalment order, etc
  • s. 171E—term of imprisonment, whether cumulative or concurrent
  • s. 171F—contact details for person released from prison before court hearing
  • s. 171G—variation of instalment order
  • s. 171H—application for a rehearing
  • s. 171I—determination of a rehearing
  • s. 171J—application for bail pending a rehearing
  • s. 171K—person in custody who applies for a rehearing

See Fines Reform Act 2014 (Vic)(opens in a new window).

Sentencing Act 1991 (Vic)

  • s. 69D—fine default unpaid community work order

See Sentencing Act 1991 (Vic)(opens in a new window).

Magistrates' Court Act 1989 (Vic)

  • s. 68—issue of warrant to imprison

See Magistrates' Court Act 1989 (Vic)(opens in a new window).

Reference

Department of Justice and Community Safety

The department has produced a flowchart to explain the changes to the procedures for calling-in fines from 31 December 2017.

Director of Fines Victoria Time Served Scheme (pdf, 413 KB)(opens in a new window)

This DJCS flowchart explains the procedure for applying to call-in fines from 31 December 2017.

Note: This flowchart is now out of date, due to the new administrative process for some prisoner fines. A new version will replace this one, when it becomes available.

Updated