Dealing with open court fines

Where you have been fined in the Magistrates’ Court under the Sentencing Act 1991 (Vic) (“Sentencing Act”), you have following options for dealing with the court imposed fines. Note that you should generally seek legal advice and assistance in relation to these options prior to making any application.

1 Apply to the registrar for an extension of time, an instalment plan, a variation of instalment order

If your matter is heard in the Magistrates’ Court and you are fined, you may also be able to apply to the court for an order allowing you to pay by instalments or to have extra time for payment. You may make such an application to the registrar at the criminal inquiry counter at your nearest Magistrates’ Court (for address details, visit www.magistratescourt.vic.gov.au). Note that the Magistrates’ Court may sometimes require an upfront payment before granting an instalment order.

2 Apply for a conversion of the fine to an unpaid community work order

You may be able to apply for a “Fine Conversion Order” (FCO) if you are unable to pay the fine given by the court by the due date. Similarly, if the due date for a fine imposed in open court has already passed, you may be able to apply for a FDUCWO (seeInfringement warrant enforcement hearings (‘section 160 hearings’)”). These orders allow you to pay the open court fine off by doing community work, instead of paying the penalty. Applying for an FCO or a FDUCWO is best done in person at the criminal inquiry counter at the Magistrates’ Court. Failure to comply with the requirements of an FCO or a FDUCWO can lead to you being brought before a magistrate in open court again, where you can be resentenced for the original offences, as well as for the offence of failing to comply with the order.

The registrar will usually only grant an application if you’re unemployed or if there is some exceptional reason why the fine cannot be paid off by instalments. To obtain an FDO or a FDUCWO, you will need to be assessed for eligibility and you will have to agree to certain standard conditions, including:

not committing any other offence for which the penalty is a prison sentence during the term of the order;

reporting to a designated community corrections centre within two working days after the order commences;

receiving visits from, and reporting to, a community correctional services officer as required;

notifying your supervising officer promptly if you change your address or your job;

complying with all reasonable orders given by your supervising officer;

not leaving the state without permission; and

any other specific conditions set by the Secretary, which may include attendance at educational programs, drug or alcohol rehabilitation or medical treatment.

In relation to an FDO or a FDUCWO, your corrections supervisor will set your hours and assign you to a community work site after assessing your skills and work capacity. You will also be required to report to your supervising officer as directed. If you fail to do so several times without good reason you could be in breach of the order and be returned to court. Any complaints about the conditions of your order should be discussed first with your supervisor and, if not resolved, with more senior officers.

In some cases, you may be able to apply to carry out the community work at a charity of your choice, for example, at a rehabilitation centre or where you have already been doing volunteer work for some time. Providing a letter in support from someone at the charity who knows you will strengthen your application if you want to do this.

Under FCOs and FDUCWOs, the number of hours you will be required to work is calculated at the rate of about $30.33 per hour (or 0.2 of a penalty unit, seeA note about penalty units”) until the penalty is paid (unless the court sets a different number of hours). There is a minimum of eight hours to be worked and a maximum of 500 hours. If you have more than one FCO/ FDUCWO, you cannot serve them at the same time (concurrently), unlike with a prison sentence. You will have to serve them one after the other (cumulatively).

In some special circumstances (e.g. if you fall ill), the FCO/ FDUCWO can be suspended for a period, then resumed. You will need to provide evidence of the circumstances that justify suspension.

3 Apply to the magistrate to vary or cancel an instalment or payment order

While an instalment order is in force, you can apply to vary or cancel the payment or instalment plan that a magistrate has ordered pursuant to section 61 of the Sentencing Act. This section provides that a magistrate may vary or cancel the instalment order and make any other order under its original powers (which would be the sentencing options under the Sentencing Act) if it is satisfied that:

your circumstances have materially altered since the order was made and as a result, you will not be able to comply with the order; or

your circumstances were wrongly stated or were not accurately presented to the court or the author of a pre-sentence report before the order was made; or

you are no longer willing to comply with the order (s 61(1) Sentencing Act).

Section 61(2) of the Sentencing Act states that if the instalment order is cancelled, the Magistrates’ Court must take into account the extent to which the offender had complied with the order before its cancellation when determining how to deal with the offender.

Note that if you make an application under section 61 of the Sentencing Act but fail to attend, the court can issue a warrant to arrest against you (s 61(5) Sentencing Act).

4 Apply for a re-hearing if you did not attend the hearing when the fine was imposed and you had a valid reason for not attending

If you did not attend the hearing when the fine was imposed, you could apply for a re-hearing pursuant to section 88 of the Criminal Procedure Act.

Section 88 of the Criminal Procedure Act provides that where a sentence is imposed by the Magistrates’ Court in a criminal proceeding on a person who did not appear in the proceeding, that person, or the informant on that person’s behalf, may apply to the Magistrates’ Court for an order that the charge be reheard.

5 Appeal the decision to the County Court

If you have been convicted of an offence by the Magistrates’ Court in a criminal proceeding, you may appeal to the County Court against the conviction and sentence or the sentence alone (s 254 Criminal Procedure Act). You should seek legal advice from a criminal lawyer before making a decision to appeal to the County Court since it may result in a harsher sentence against you.

6 Appeal the decision to the Supreme Court

You have the right to appeal a final order of a magistrate to the Supreme Court on a question of law (s 272 Criminal Procedure Act). You should seek legal advice from a criminal lawyer before making a decision to appeal to the Supreme Court.

7 Pay in full

Note that it is not possible to apply for revocation of fines imposed by a court as a sentencing disposition under the Sentencing Act.