Going to court

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You may choose or be obliged to go to court. The three types of court hearings dealing with infringements are ‘open court’ hearings in the Magistrates’ court, Magistrates’ court hearing in the Special Circumstances List and Infringement warrant enforcement hearings.

When might you go to court?

There are several reasons why you might choose, or be obliged, to appear in the Magistrates’ Court in relation to your infringements. The procedures, options and requirements vary depending on the nature and purpose of the court hearing.

Broadly speaking, there are three main types of court hearing that apply infringements matters:

1 “Open court” hearings in the Magistrates’ Court;

2 Magistrates’ Court hearings in the Special Circumstances List; and

3 Infringements warrant enforcement hearings (section 160 hearings).

The following list summarises the seven different scenarios that can result in one of the three types of court hearing:

a You elect to have matter dealt with in open court;

b Enforcement agency elects to issue a charge and summons;

c Enforcement agency refuses to withdraw the fine after internal review;

d Application for revocation: other than special circumstances;

e Application for revocation: special circumstances application;

f You refer the Infringement Registrar’s refusal to revoke to open court;

g Infringements warrant enforcement hearings (section 160 hearings)

Each of these seven scenarios is discussed below in greater detail, along with information about the different procedures, options and requirements that apply to the type of court hearing involved. Importantly, the types of penalties a court can impose may vary depending on the type of court hearing involved. For further information on possible penalties, seeCourt penalties”. If you are considering going to court in relation to an offence or offences, it is important to seek legal advice about how to present your case.

a   You elect to have matter dealt with in open court

Before an enforcement order is issued, you can request that the enforcement agency refer an infringement offence to the Magistrates’ Court (or, in the case of a person under 18 years, the Children’s Court). The enforcement agency may send you, with the infringement notice or penalty reminder notice, a form that you can fill out to elect to have the matter referred to the court. If not, you can write to the 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 are unable to convince the enforcement agency to withdraw the fine via the internal review mechanism (refer toApply for review by the enforcement agency”). This option is not available for clients with excessive speed, drug driving and drink driving offences.

While having the matter heard in open court can provide an opportunity to put forward your individual circumstances, it is generally not advisable to refer matters to open court if there are other alternatives available (e.g. seeApplication for revocation: other than special circumstances”. This is because the penalties in open court proceedings can be harsh. For further information on this process seeDispute the fine: take the matter to court”, and for more information on sentencing in open court, seeCourt penalties”.

b   Enforcement agency elects to issue a charge and summons

An enforcement agency that issued the infringement notice can subsequently choose to withdraw the infringement notice, and refer the offence to an open court hearing instead (s 17 Infringements Act). This sometimes occurs where the fine hasn’t been paid within 28 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 which sets out details of the relevant offence, as well as details of the future court hearing (time, date and location).

This option is not open to the enforcement agency where the infringement has already progressed to enforcement order stage, or where the person who received the infringement has paid it off or entered a payment plan to pay it off (s 18 Infringements Act).

c   Enforcement agency refuses to withdraw the fine after internal review

As discussed under “Apply for review by the enforcement agency”, you can request an internal review of the agency’s decision to issue you with a fine. This can only be done before the fine is lodged with the Infringements Court. Upon receipt of the application for internal review, the agency can decide to either withdraw the fine unconditionally, withdraw the fine and issue a warning instead, confirm the fine, or withdraw the fine and refer the matter to open court for a hearing.

Importantly, if the application for review is made on the basis of “special circumstances” (see below), and the agency confirms the fine, they will automatically refer the matter to the Magistrates’ Court for hearing. But if the application for internal review is on grounds other than “special circumstances”, the enforcement agency is not obliged to refer the fine to court, and will be more likely to continue taking steps to enforce the fine through the infringements system (refer toThe infringements procedure” table).

If a fine is referred to the court, the agency will withdraw the infringement notice and file a charge with the Magistrates’ Court giving details of the offence or offences it believes you have committed. You will then receive a summons (either by mail, handed to you personally, or served on someone who is apparently over 16 and who seems to live or work with you) telling you when and where you have to appear in court to answer the charge.

d   Application for revocation: other than special circumstances

Where an application for revocation has been lodged on grounds other than an applicant’s “special circumstances” and the Infringements Registrar considers there is sufficient evidence to revoke the enforcement order, the Infringements Registrar will then revoke the enforcement order and notify the enforcement agency. If the enforcement agency does not withdraw the fine, the Infringements Registrar will refer the matter to open court for a magistrate to consider (s 66 Infringements Act). 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 will set out a “mention date”:

if you plead guilty, the matter will be heard and determined on that mention date;

if you plead not guilty, the matter will generally be adjourned and set down for a contest hearing at a later date.

Each matter will generally be referred to the court nearest to where the offence is alleged to have occurred. If you have multiple matters, this means that they may be referred to different courts. If you wish to have all the matters dealt with at once, in the same court, you will need to identify all the separate matters, so that you can then try to persuade the agencies involved 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, seeAppearing in the Magistrates’ Court”. See also Representing yourself in court, and Sentencing in the Magistrates’ Court.

e   Application for revocation: special circumstances application

Where an application for revocation is made on the basis of special circumstances and the application is accepted by the Infringements Registrar, but the enforcement agency refuses to withdraw the fine, the case is referred to court for further hearing. This process results in your matter being listed for first mention at the Melbourne Magistrates’ Court in the Special Circumstances List.

The Special Circumstances List is a specific forum just for special circumstances applications and the hearings take place on Thursdays at the Melbourne Magistrates’ Court. Hearings in the Special Circumstances List are different to open court hearings, because the focus of these hearings is usually to identify and address any issues underlying the “offending behaviour” of persons with special circumstances. Generally, people whose matters are determined in the Special Circumstances List will obtain better outcomes than if they are sentenced in open court, as there is a greater chance that their personal circumstances will be taken into account prior to sentencing. While all the normal sentencing options for an open court hearing are also available in a special circumstances hearing, most often, defendants in the Special Circumstances List will have their matters dismissed, or adjourned on an undertaking of good behaviour for a specified period, after which the matters will be dismissed.

It is important to understand that part of making a special circumstances application in the Special Circumstances List involves pleading guilty to the relevant offence(s) that the fines relate to. Having entered this plea of guilty, the magistrate can then proceed to consider the relevant special circumstances that the application is based upon. It is helpful if the special circumstances applicant can be represented by a lawyer at the hearing, as this person will be able to convey the information about special circumstances to the magistrate in an efficient and concise manner. Note that Victoria Legal Aid provides a duty lawyer service in the Special Circumstances List (see “Contacts”).

It is also important that the applicant is present in court during a hearing in the Special Circumstances List, as the magistrate will normally want to speak with the person directly about any relevant issues they are dealing with, as well as rehabilitative steps they have taken to address the offending conduct.

For more information on appearing in court generally, see also Representing yourself in court, and Sentencing in the Magistrates’ Court.

f   Referral to court of Infringement Registrar’s refusal to revoke

Where the Infringements Registrar decides not to revoke the order, you may apply to have the application for revocation referred to an open court hearing in the Magistrates’ Court, as discussed under “Challenging decision not to revoke”. The magistrate who hears the matter has the power to revoke the enforcement orders attached to the infringements offences. As discussed above, the magistrate will either refuse to revoke the enforcement orders and return the matter to the Infringements Court for enforcement, or revoke the enforcement orders. If the magistrate agrees to revoke the enforcement order and the defendant pleads guilty to the alleged offence, the magistrate will normally proceed to hear and determine the matter. If this occurs, the full range of open court sentencing options would be available to the magistrate, and it is therefore important that any mitigating factors (including relevant “special circumstances” grounds) are put to the magistrate so they can be taken into account in sentencing. (SeeCourt penalties”.)

Generally, if you are seeking review of the Infringement Registrar’s decision to refuse a revocation application, it is also worth contacting the enforcement agency before the review hearing, to put them on notice. You can also ask the enforcement agency whether they will agree to the application, so that it can proceed by consent. Before applying to have the registrar’s refusal referred to court, you could also try to submit a second application for revocation. If doing this, you might consider including any additional documentation that the registrar requested when notifying you that the first application was refused. If your second application is also refused, you will need the court’s permission before lodging a third application.

g   Infringement warrant enforcement hearings (“section 160 hearings”)

If you are arrested under an infringement warrant and you are not eligible for a CWP (seeDo community work”), you do not consent to a CWP, or you breach a condition of the CWP, you will be brought before a Magistrates’ Court for a hearing. These hearings are often referred to as “PEW hearings” (PEW stands for Penalty Enforcement Warrant), or “section 160 hearings”, which is a reference to section 160 of the Infringements Act which sets out the powers the magistrate has in one of these hearings.

During these hearings, there are a range of sentencing options open to a magistrate, the most severe being that the court can order a prison term of one day for each penalty unit that you owe (note that from 1 July 2015, the value of 1 penalty unit is $151.67); the court may decide to reduce this period by up to two-thirds, but it can also set a higher penalty. If you have a mental or intellectual impairment, disorder, disease or illness or if “special circumstances” apply to you, the court may discharge or reduce the fine or adjourn the matter for a period of up to six months. See the discussion of special circumstances in “Apply for review by the enforcement agency”, as the same definition applies to these court hearings.

The court may also reduce or discharge the fine partially or in full, where (taking your situation into account) imprisonment would be excessive, disproportionate and unduly harsh. The court has the power to enforce an order made for payment of your outstanding fine, even if part of the fine has been discharged. If the fine is partially discharged, the court may order you to serve a term of imprisonment in default of payment. Alternatively the court may choose one of the other sentencing options, such as adjourning the matter or imposing a Fine Default Unpaid Community Work Order (FDUCWO) instead of imprisonment. Magistrates also have the power to place you on a payment plan which, if not adhered to, results in a warrant for imprisonment being issued immediately. This type of payment plan is commonly referred to as an “IIL”, or “Imprisonment in Lieu” order.

Breach of the conditions of a FDUCWO or failure to pay fines imposed by the Magistrates’ Court may also result in a prison sentence. A prison term may be imposed for part of the penalty, with the balance to be served as a FDUCWO.

During these hearings, the court has a positive obligation to inquire into your circumstances, to determine if “special circumstances”  exist – see Victorian Police Toll Enforcement v Taha; Victoria v Brookes [2013] VSCA 37.

If you have already had one of these hearings, and think that the magistrate didn’t take your special circumstances into account, you may be able to apply for a rehearing in order to present information about the relevant special circumstances, which could result in a more lenient sentence. Similarly, if you don’t think the magistrate properly considered how imprisonment could have a harsh and disproportionate effect on you, you may also be able to apply for a rehearing. These rehearing applications can be lodged at any stage after the initial hearing, including if you have defaulted on a payment plan and been taken into custody. The court will only rehear the matter once, so it is important that you obtain further legal assistance before any rehearing takes place.

If the court ordered you to stick to an instalment plan and sentenced you to imprisonment in default of payment, you can apply to the court for a variation of the payment plan where:

your circumstances have materially altered since the order was made and you cannot keep up with the payments; or

your circumstances were not accurately presented to the court when the payment order was made.

If you are already serving a prison sentence, you can “call in” warrants for unpaid fines and serve them with your existing sentence (seeOther factors that can affect a sentence” in Imprisonment and prisoner rights). If you are serving a jail sentence for an offence other than an order under section 160 of the Infringements Act (i.e. jail for unpaid fines), then the time for your infringements warrants can be served concurrently (i.e. at the same time as your other sentence), otherwise it must be served cumulatively. If the period of imprisonment under the infringement warrants exceeds the period of prison sentence already being served, then this excess amount must be served cumulatively (i.e. as extra time in prison).

Note that the Fines Reform Act 2014 (Vic) will soon remove the ability of people serving a prison sentence to “call in” warrants for outstanding fines. At the time of writing (June 2015), the power to “call in” warrants still exists, but you should check to see if the new laws have come into effect prior to making any application to “call in” any outstanding warrants.

Appearing in the Magistrates’ Court

You (and your lawyer, if you have one) should arrive in court at least 15 minutes before the hearing time. You might want to meet your lawyer earlier to discuss what will happen and what you might be asked in court. You or your lawyer will need to announce your “appearance” in person with the associate in the court where the matter is listed to be heard. This simply means approaching the magistrate’s associate before the magistrate has entered the court and telling the associate your name, so that the magistrate will then know you are there ready for your matter to be heard.

It is important for you to be present at the hearing, even if you have a lawyer to appear. This is generally your only opportunity to argue your case before a magistrate. If you do not appear, the court is more likely to rule against you. Also, some sentencing dispositions (such as an adjournment on an undertaking of good behaviour) require that you consent to the order. If you are applying on the grounds of “special circumstances”, it is also helpful if a case worker or social worker is present at the hearing, as this sends a strong message to the court that you are being supported and that your difficulties are being addressed.

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. The magistrate will then ask the enforcement agency prosecutor for an outline of the alleged offences, and will then 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 certain types of hearing, the court will only proceed if you are willing to plead guilty (seeApplication for revocation: special circumstances application”).

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

Court penalties

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

As mentioned in “Going to court”, there are risks involved with having a fine heard before a magistrate in open court. This is mainly because in open court proceedings, a magistrate is less likely to carefully consider your special circumstances or other forms of hardship before sentencing you. As a result, there is a risk that higher penalties will be imposed, a conviction recorded against you or liability for court costs imposed.

On the other hand, if you are able to have your fines dealt with in the Special Circumstances List, there is a greater chance that underlying reasons for the offending will be carefully considered and taken into account (refer toe Application for revocation: special circumstances application” for further information on this process). It is not uncommon for defendants in the Special Circumstances List to receive an unconditional dismissal or an adjournment without conviction on conditions in relation to their fines. The court may adjourn the matter for up to 60 months, and can impose conditions such as completing a driver education course, or undertaking drug or alcohol treatment. After the adjournment, if you have met the conditions set, the court may decide to waive any further penalty without any need for you to appear. However, if you have not complied with the conditions set by the court, you may be resentenced more harshly and also receive a separate additional sentence for failing to comply with the undertaking.

Where you are attending court after being arrested due to an infringements warrant, there are additional options and considerations that will apply during the hearing. Refer tog Infringement warrant enforcement hearings (‘section 160 hearings’)”.

It is important that you seek legal advice before attending any type of court hearing in relation to fines and infringements.