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Execution of enforcement warrants

This page explains what can happen if someone ignores a 7 day notice.

Anyone in this situation should get legal advice urgently.

7-day notice

If a person ignores their letter of final demand and takes no action to pay their fine, the director will apply to court for an enforcement warrant. This warrant directs an authorised person (usually the sheriff but could also be the police or other authorised person) ('the sheriff') to take action to recover the outstanding money owed.

The first step that the sheriff will take is to issue a 7-day notice to the person who has the outstanding fine. A 7-day notice is a warning that if the person does not take action within 7 days that the enforcement warrant will be executed. During this 7 day period the sheriff may:

  • come to the (home or business) property
  • break and enter, and
  • seize and take possession of personal property to satisfy the debt.

They must not remove the property at this stage, unless they reasonably believe that the property is likely to be disposed of or moved before the warrant is executed at the end of the 7-day period.

The director or sheriff may also have already taken sanctions against the person or their property. See Sanctions against property.

See ss. 115, 120, 121—Fines Reform Act 2014 (Vic)(opens in a new window).

For details of options before the 7-day notice expires see Enforcement.

How long the enforcement warrant lasts

An enforcement warrant remains in forced until:

  • the outstanding money has been paid
  • the director asks the court to recall and cancel the enforcement warrant, or
  • the warrant is executed.

See s. 124—Fines Reform Act 2014 (Vic)(opens in a new window).

How the warrant may be enforced

After 7 days the sheriff will return and make a final demand for payment. They may seize and sell assets to recover the amount of money outstanding.

See Enforcement.

If person does not have property to satisfy the debt

If there is not enough property to satisfy the debt the sheriff may issue a community work permit or arrest the person.

Sheriff may issue community work permit

If the person has no property that can be seized or sold to satisfy the debt, the sheriff may arrest the person and issue a community work permit. This permit may be for up to 500 hours of community work to be done over a 2-year period, depending on the amount that is owed.

See Part 13—Fines Reform Act 2014 (Vic)(opens in a new window).

Eligibility

The person must be eligible to do community work for the sheriff to take this option. The sheriff must be satisfied that the person has the capacity to perform unpaid work, and that they are reasonably unlikely to breach the conditions of the permit.

The person has to agree to do community work. This is only possible if the total amount of the fine is less than 100 penalty units. People may also be ineligible if they have:

  • a mental or physical impairment, or
  • been charged with assault or sexual offence.

See s. 150—Fines Reform Act 2014 (Vic)(opens in a new window).

How much work must be done

The person may work up to 20 hours a week, although, with permission, this could be increased to 40 hours in a 7 day period. The fine is worked off at a rate of 1 hour for each 0.2 penalty units.

See Table for maximum number of work hours in ss. 150, 151, 152, 156—Fines Reform Act 2014 (Vic)(opens in a new window).

Conditions and supervision of work permits

All community work permits include the following conditions. The person must:

  • not commit an offence that is punishable on conviction by a prison term (regardless of if outside Victoria)
  • report to a specified community corrections centre within 2 days of issue of the permit (or as specified in the order)
  • regularly report and accept visits from a community corrections officer
  • notify a community corrections officer of any change of address
  • not leave Victoria without permission
  • obey all lawful instructions of a community corrections officer, and
  • perform unpaid community work as directed for the number of hours specified.

See ss. 152, 153—Fines Reform Act 2014 (Vic)(opens in a new window).

Breach of community work permit

It's important to let the supervisor know if the person is sick. The work permit can be suspended until the person recovers.

If the person does not do the community work as agreed and they do not have a reasonable excuse, the person can be charged and summonsed to appear in court. They could also be arrested and sent to prison.

If the person has breached their community work conditions the person may also be fined for this breach.

See s. 160—Fines Reform Act 2014 (Vic)(opens in a new window).

Time limit

The person could be charged for up to 3 years from the time that the breach of community duties happened.

See s. 160(4)—Fines Reform Act 2014 (Vic)(opens in a new window).

Arrest, court and bail

If a person is not eligible (or does not agree) to do community work, they may be arrested by the sheriff and brought before a court within 24 hours. They must then be released on bail.

If it is not practical to bring the person before court within this 24-hour period then a date must be fixed for the person to attend the court. The person must then be charged and bailed.

This might happen if the person with the fine:

  • is not eligible to do community work
  • does not want to do community work, or
  • has breached a community work order (without a reasonable excuse).

See ss. 163, 164—Fines Reform Act 2014 (Vic)(opens in a new window).

Powers of the court following enforcement warrant

The court's powers differ depending on whether:

  • the person has a mental or intellectual impairment, disorder, disease or illness
  • special circumstances need to be considered, or
  • due to the person's situation imprisonment would be excessive, disproportionate or unduly harsh.

See s. 165(2)—Fines Reform Act 2014 (Vic)(opens in a new window).

Court powers if mental health issues or special circumstances

If a person is brought before the court on an enforcement warrant and the court is satisfied that the person has:

  • mental health issues, intellectual impairment, disorder, disease or illness
  • that special circumstances apply for the infringement offender, or
  • particular circumstances, that would make a jail term disproportionate, excessive or unduly harsh

the court may:

  • discharge all outstanding infringement fines
  • discharge part of the outstanding infringement fines
  • discharge part of the fines and order a term of imprisonment
  • order the person to do unpaid community work, or
  • adjourn the matter for up to 6 months.

The court may order that outstanding fines be paid by instalments or may order extra time to pay.

Note: Prison can only be ordered as a last resort. See Going to prison.

See ss. 165(1), (2), 165A(2), (3)—Fines Reform Act 2014 (Vic)(opens in a new window).

Arguing disproportionate and excessive

If a person is to argue that they should not be imprisoned on the basis that imprisonment would be disproportionate or excessive the court will need to consider whether:

  • spending one day in prison for every penalty unit is out of proportion with what is appropriate considering the kind off offences involved. For example, toll offences are generally less serious than offences that pose a danger to the public such as using a mobile phone or speeding.
  • the client is less culpable because of illness, illiteracy or because the fines were incurred by someone else.

See Victorian Toll & Anor v Taha and Anor; State of Victoria v Brookes & Anor [2013] VSCA 37 (4 March 2013)(opens in a new window) (Osborn JA).

What is excessive?

This involves an examination of the totality of the offending and whether the punishment of imprisonment would be greater than what is necessary, appropriate or reasonable. The court must consider the appropriateness of the sentence overall.

Arguing unduly harsh

If a person is to argue that they should not be imprisoned on this basis they would need to consider whether:

  • spending one day for every penalty unit is more severe that is necessary
  • there would be any hardship caused to a client's dependents
  • a jail term would be particularly difficult for the client (for example because of their age, physical condition, mental illness or financial situation)
  • the person has done anything to take responsibility for their actions, such as seeing a financial counsellor.

The court will examine what is unjustifiably harsh or more severe than is necessary in the circumstances.

The court will look at background factors. That is, the direct and indirect consequences of the sanction on the offender and/or the family. This could include cultural identity, family context, mental illness cognitive impairment, physical condition, addiction, homelessness, disadvantage, age, financial situation, any prior offending, actions taken after being fined.

See s. 165—Fines Reform Act 2014 (Vic)(opens in a new window).

If court is not satisfied that there are mental health, special circumstances etc.

When a person is brought before the court under an enforcement warrant (this is called a section 165 hearing) the court may order the person to:

  • do unpaid community work
  • pay the amount owed but give them extra time to pay
  • pay the amount by instalments, or
  • imprisonment for a term to be fixed.

The court can also adjourn the matter for up to 6 months on any terms they think are appropriate.

Note: Prison can only be ordered as a last resort. See Going to prison.

See s. 165(3)—Fines Reform Act 2014 (Vic)(opens in a new window).

Applying for a rehearing

If the court made an order for a warrant to imprison under s. 165(3)(e) that person can apply for a rehearing if at the time of the hearing the person:

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

and these were not taken into account at their court hearing so as to make the decision to imprison the offender, harsh, unjust or unreasonable.

See s. 167—Fines Reform Act 2014 (Vic)(opens in a new window).

Defaulting on order to pay fine

If a person defaults on the fine ordered by the court (and the court was satisfied that mental health issues or special circumstances applied to that person) the court may order a warrant to arrest. The person will be brought before the court. At this hearing the court may decide to:

  • confirm the original order, or
  • cancel the order and make another decision.

When the court is making an order they have to take into account the extent to which the person had complied with the original order.

See s. 165A(3), (4), (5)—Fines Reform Act 2014 (Vic)(opens in a new window) and s. 61—Magistrates' Court Act 1989 (Vic)(opens in a new window).

Varying an instalment order

If a person is having trouble keeping up with making regular payments under an instalment order it is important that they apply to have the order varied. The court may make an order varying the instalment order if they are satisfied that the person's circumstances have changed and they can no longer comply with the order.

See s. 166—Fines Reform Act 2014 (Vic)(opens in a new window).

Going to prison

The magistrate may send the person to prison, but they must only do this as a last resort. This may happen if the court has made an order that the person pay a part of the fine that is owed and the person defaults on their payments under ss. 165(1)(c) or 165(3)(e) of the Fines Reform Act 2014 (Vic)(opens in a new window).

If the court decides to make an order for imprisonment they may issue a warrant to imprison under Magistrates' Court Act 1989 (Vic). The court will send the warrant to imprison to the sheriff to enforce. When the sheriff executes the warrant the person is taken straight to prison to serve their period of imprisonment. They do not go back before a court.

See ss. 165, 165A—Fines Reform Act 2014 (Vic)(opens in a new window) and ss. 68, 69, 70—Magistrates' Court Act 1989 (Vic)(opens in a new window).

Prison must be a last resort

The court must not make an order for imprisonment if satisfied that the person:

  • did not have capacity to pay the outstanding fine, or
  • has another reasonable excuse for non-payment.

An order for imprisonment can only be made as a last resort, if no other order is appropriate, all circumstances considered.

See s. 165(4), (5)—Fines Reform Act 2014 (Vic)(opens in a new window).

How long is spent in prison?

If a prison sentence is ordered, the person spends up to one day for each penalty unit (or part penalty unit) that is outstanding up to a maximum of 24 months. It may be possible to apply to pay the penalty by instalments.

See s. 165B—Fines Reform Act 2014 (Vic)(opens in a new window) and Value of penalty units.

Effect of bankruptcy

Bankruptcy will not extinguish the debt. Once a person is discharged from bankruptcy the debt remains.

More information

Legislation

Fines Reform Act 2014 (Vic)

  • s. 115—persons to whom an enforcement warrant may be directed
  • s. 120—options during 7-day notice period
  • s. 121—executing an enforcement warrant after the expiry of the 7-day notice
  • s. 150—when a community work permit may be issued
  • s. 151—when sheriff may release infringement offender on community work permit
  • s. 152—condit5ions of community work permits
  • s. 153—department of justice may direct person to report to community corrections centre
  • s. 156—community work (table of number of hours to be performed)
  • s. 160—contravention of community work permit
  • s. 163—defines a 'person in default'
  • s. 164—person in default to be brought before the Magistrates' Court
  • s. 165—powers of the court
  • s. 165A—additional powers of the court

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

Magistrates' Court Act 1989 (Vic)

  • s. 61—issue of warrant to arrest
  • s. 68—issue of warrant to imprison
  • s. 69—who a warrant to imprison can be directed to
  • s. 70—directions in and authority of warrant to imprison

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

Bail Act 1977 (Vic)

  • s. 10—Where it is impractical to bring an arrested person before the court

See Bail Act 1977 (Vic)(opens in a new window).

Supreme Court Act 1986 (Vic)

  • s. 42—limits the property that can be made available to satisfy a judgment debt

See Supreme Court Act 1986 (Vic)(opens in a new window).

Interpretation of Legislation Act 1984 (Vic)

  • s. 40—exercise of powers and performance duties
  • s. 41—power to appoint
  • s. 41A—power to make instrument includes power to revoke or amend

See Interpretation of Legislation Act 1984 (Vic)(opens in a new window).

Sentencing Act 1991 (Vic)

  • s. 61—variation of instalment order or time to pay order

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

Fitzroy Law Handbook

The Fitzroy Legal Service's Law Handbook has information about the process of enforcement.

See Your options if you get an infringement notice(opens in a new window).

Fines

The state government site has information about what might happen if an outstanding fine gets to the warrants stage.

See Fines—What happens if you don't pay(opens in a new window).

Updated