Where you have been fined in the Magistrates’ Court under the Sentencing Act 1991 (Vic) (“Sentencing Act”), you have the following options for dealing with these fines. You should seek legal advice about these options prior to making any application.
1 Apply to the registrar for an extension of time, an instalment plan, or a variation of instalment order
If your matter is heard in the Magistrates’ Court and you are fined, you may be able to apply to the court for an order allowing you to pay in instalments or to have extra time to pay the fine. 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 sometimes requires an upfront payment before granting an instalment order.
2 Apply for a conversion of a 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 (see “7 Infringement warrant enforcement hearings (“section 160 hearings”)”). These orders allow you to pay the open court fine by doing community work. Apply for an FCO or FDUCWO in person at the criminal inquiry counter at the Magistrates’ Court. Failing to comply with the requirements of a 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 usually only grants applications if the applicant is unemployed or if there is an exceptional reason why the fine cannot be paid in instalments. To obtain a FDO or FDUCWO, you need to be assessed for eligibility and you 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 a FDO or 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 (e.g at a rehabilitation centre where you have been volunteering for some time). If you want to do this, provide a supporting letter from someone at the charity who knows you to strengthen your application.
Under FCOs and FDUCWOs, the number of hours you will be required to work is calculated at the rate of about $31.10 per hour (or 0.2 of a penalty unit) (see “A 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 or FDUCWO can be suspended for a period, then resumed. You will need to provide evidence of the circumstances that justify suspension.
3 Apply to a 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 an 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 are unable 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 an 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 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 can apply for a re-hearing under section 88 of the Criminal Procedure Act 2009 (Vic) (“Criminal Procedure Act”).
This section 88 provides that where a sentence is imposed by a 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 in 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 as it may result in a harsher sentence against you.
6 Appeal the decision in 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
It is not possible to apply for fines to be revoked when they were imposed by a court as a sentence under the Sentencing Act.