Going to court

 

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.

There are three main types of court hearing that apply to infringements matters:

“open court” hearings in the Magistrates’ Court;

hearings in the Magistrates’ Court’s Special Circumstances List;

infringement warrant enforcement hearings (“section 160 hearings”).

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

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

2 The enforcement agency issues a charge and summons;

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

4 An application for revocation on grounds other than special circumstances;

5 An application for revocation on the grounds of special circumstances;

6 You refer to open court the infringement registrar’s refusal to revoke an enforcement order;

7 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.

The types of penalties a court can impose vary depending on the type of court hearing involved. (For further information on possible penalties, seeCourt penalties”.)

If you are considering electing to go to court, seek legal advice (see Legal services that can help).

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

Before an enforcement order 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 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 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 system (seeApply for an internal review by the enforcement agency”).

This option is not available for people who have excessive speed, drug-driving or drink-driving 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 open court if there are other alternatives available (e.g. seeAn application for revocation on grounds other than special circumstances”). This is because the penalties in open court proceedings can be harsh.

For more information on this process, seeOption 6 if you get an infringement notice: dispute the penalty and take the matter to court”, and for more information on sentencing in open court, seeCourt penalties”.

2The enforcement agency issues a charge and summons

An enforcement agency that issues an infringement notice can 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 that sets out details of both the relevant offence, and the future court hearing (time, date and location).

This option is not available to the enforcement agency where the infringement has 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).

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

As discussed under “Apply for an internal review by the enforcement agency” (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 lodged with the Infringements Court.

After receiving an application for an internal review, the agency can either withdraw the fine unconditionally, withdraw the fine and issue a warning, 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 automatically refer the matter to the Magistrates’ Court for a hearing.

(Note that this will no longer be the case by 1 July 2017 due to the FR Act and FRIAA Act; see note in Fines and infringements. This means that if your application for internal review based on special circumstances is refused, it will not automatically be referred to open court.)

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 probably continue taking steps to enforce the fine through the infringements system (seeThe infringements system process” table, above).

If a fine is referred to court, the agency withdraws the infringement notice and files a charge with the Magistrates’ Court giving details of the offence(s) it believes you have committed. You will then receive a summons telling you when and where you have to appear in court to answer the charge.

4An application for revocation on grounds other than special circumstances

Where an application for an enforcement order to be revoked 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 revokes the enforcement order and notifies the enforcement agency. If the enforcement agency does not withdraw the fine, the infringements registrar refers 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 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 adjourned and set down for a contest hearing at 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 list the cases at the same court, for a single hearing.

For more information on court procedures, seeAppearing in the Magistrates’ Court”.

5An application for revocation on the grounds of special circumstances

Where application for an enforcement order to be revoked 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. This process results in the matter being heard in the Magistrates’ Court’s Special Circumstances List.

The Special Circumstances List is a specific forum just for special circumstances applications. Hearings in the Special Circumstances List are different to open court hearings, because these hearings focus on identifying and addressing the issues underlying the “offending behaviour” of people with special circumstances. Generally, people whose matters are determined in the Special Circumstances List 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 a guilty plea, the magistrate can 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 a lawyer can convey the information about special circumstances to the magistrate efficiently and concisely. Note that Victoria Legal Aid provides a duty lawyer service in the Special Circumstances List.

It is 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, see Representing yourself in court, and Sentencing in the Magistrates’ Court.

6You refer to open court the infringement registrar’s refusal to revoke an enforcement order

Where the infringements registrar decides to not revoke an enforcement order, you may apply to have the application for revocation referred to the Magistrates’ Court (discussed in “Challenging a decision to not revoke an enforcement order”).

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 a magistrate agrees to revoke an enforcement order and the defendant pleads guilty to the alleged offence, the magistrate normally proceeds to hear and determine the matter. If this occurs, the full range of open court sentencing options also 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”.)

If you are seeking a review of the infringement registrar’s decision to refuse a revocation application, contact the enforcement agency before the review hearing, to put them on notice. You can also ask the enforcement agency to agree to the application, so that it can proceed by consent.

Before applying to have the registrar’s refusal referred to court, submit a second application for revocation and include any additional documentation that the registrar requested when notifying you that the first application was refused. If your second application is refused, you need the court’s permission to lodge any more applications.

7Infringement warrant enforcement hearings (“section 160 hearings”)

If you are arrested under an infringement warrant and you are not eligible for a CWP (seeOption 8 if you get an infringement notice: do 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” (penalty enforcement warrant hearings), or “section 160 hearings”, which is a reference to section 160 of the Infringements 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 is a prison term of one day for each penalty unit that you owe (from 1 July 2016, the value of 1 penalty unit is $155.46); 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 an internal 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 instead 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 can place you on a payment plan that, 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.

Breaching the conditions of a FDUCWO or failing 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 an obligation to inquire into your circumstances and to determine if special circumstances (as defined above) exist (see Victorian Police Toll Enforcement v Taha; Victoria v Brookes [2013] VSCA 37).

If you have had one of these hearings, and think the magistrate didn’t take your special circumstances into account, you may be able to apply for a rehearing 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 be able to apply for a rehearing. 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 only rehears the matter once, so obtain legal assistance before any rehearing takes place.

Note that under new provisions to be brought in by 1 July 2017 in the FRIAA Act, court powers under section 160 will be significantly altered to ensure that imprisonment is a last resort. These provisions will ensure that even where “specified matters” do not apply (i.e. special circumstances, mental or intellectual impairment or that, considering an offender’s circumstances, imprisonment would be excessive, disproportionate or unduly harsh), the court can impose a FDUCWO, a time to pay order, an instalment order or adjourn the matter.

The court must not make an imprisonment order if it is satisfied that an offender did not have the capacity to pay the registered infringement fine, or had another reasonable excuse for the non-payment. Finally, the court must not order imprisonment unless satisfied that no other order is appropriate, considering all the circumstances of the case.

If a court has 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 serving a prison sentence, you can “call in” warrants for unpaid infringement warrants 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 (i.e. one after another). If the period of imprisonment under the infringement warrants exceeds the period of prison sentence being served, then the excess amount must be served cumulatively (i.e. as extra time in prison).

Note that under the new legislation to come into effect by 1 July 2017 (the FR Act and FRIAA Act; see the note in Fines and infringements), this scheme will be expanded so that you can convert unpaid warrants from the time you entered prison (i.e. including time on remand) to run concurrent with your jail sentence (as long as your sentence is for an offence other than an order under section 160). Further, if the period of imprisonment under the unpaid fines exceeds your sentence, then the court has additional powers to deal with the remainder of your unpaid fines, such as discharging them in full or in part, imposing a FDUCWO, a time to pay order, an instalment order or adjourning the matter. Additional prison time remains an option; however, a court must not make an imprisonment order if it is satisfied that you did not have the capacity to pay the registered infringement fine; or had another reasonable excuse for the non-payment. Finally, the court must not order imprisonment unless satisfied that no other order is appropriate considering all the circumstances of the case.

If you are in prison for a fine-related sentence, the court has additional powers to make orders to deal with your unpaid fines as noted above (e.g. discharging in full or in part, imposing a fine default unpaid community work order, a time to pay order, an instalment order or adjourning the matter). If the court orders a term of imprisonment, this will be served cumulatively to your existing sentence.

Note that under the FR Act changes to be brought in by 31 December 2017, any registered infringement fine (not just infringement warrants) can be converted to be served with your existing sentence.

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 or your lawyer needs 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 know 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. 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 sentences (e.g. an adjournment on an undertaking of good behaviour) require you to 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 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 that give you or your lawyer an opportunity to explain your circumstances and suggest a penalty for the magistrate to consider. In certain types of hearings, the court only proceeds if you are willing to plead guilty (seeAn application for revocation on the grounds of special circumstances”).

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 more detailed 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 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 above 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 you will have to pay the court costs.

On the other hand, if you can 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 (see5 An application for revocation on the grounds of special circumstances”). It is not uncommon for defendants in the Special Circumstances List to receive an unconditional dismissal or an adjournment without conviction.

The court may adjourn a matter for up to 60 months, and can impose conditions such as completing a driver education course, or undertaking drug or alcohol treatment. After an adjournment, if you have met the conditions set, the court may waive any further penalty without you needing 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.

When you are attending court after being arrested under an infringements warrant, there are additional options and considerations that apply during the hearing. See7 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 (see Legal services that can help).