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 fines. 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:

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

2 hearings in the Magistrates’ Court’s Special Circumstances List (note this list is under review);

3 enforcement warrant hearings (“section 165 hearings”).

The are six scenarios that can result in you having to attend one of the three types of court hearing; these 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 and refers the matter to be heard in open court;

4 You apply for an enforcement review on grounds other than special circumstances and the agency refuses to withdraw the fine;

5You apply for an enforcement review on the grounds of special circumstances and the agency refuses to withdraw the fine;

6Enforcement warrant hearings (“section 165 hearings”).

Each of these six scenarios is discussed below in greater detail, along with information about the different procedures, options and requirements that apply to each type of court hearing.

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

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

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

Before a notice of final demand 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 enforcement 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 speeding offences, drink-driving or drug-driving offences, or boating 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 court if there are other alternatives available (e.g. see4 You apply for an enforcement review on grounds other than special circumstances”). This is because the penalties in court proceedings can be harsh and you are likely to end up with a criminal record.

For more information about this process, seeOption 6: dispute the penalty and take the matter to court”. For more information on sentencing in open court, seeCourt penalties”.

2 The enforcement agency issues a charge and summons

An enforcement agency that issues an infringement notice can choose to withdraw it and refer the offence to an open court hearing instead. This sometimes occurs where a fine hasn’t been paid within 21 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 (i.e. the time, date and location of the hearing).

This option is not available to the enforcement agency if the infringement has progressed to enforcement stage, or if the fine has been paid off, or if the person has entered a payment arrangement.

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

As discussed under “Apply for an internal review by the enforcement agency”, 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 registered with Fines Victoria.

After receiving an application for an internal review, the enforcement agency can withdraw the fine unconditionally, or withdraw the fine and issue a warning, or confirm the fine, or withdraw the fine and refer the matter to open court for a hearing.

Note that if the internal review application was made on the basis of the applicant’s special circumstances, the enforcement agency does not have the option to refer the matter to court.

If a fine is referred to court, the enforcement agency withdraws the infringement notice and files a charge with the Magistrates’ Court giving details of the offence 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.

4 You apply for an enforcement review on grounds other than special circumstances

Where an application for an enforcement review has been lodged on grounds other than an applicant’s special circumstances and Fines Victoria considers there is sufficient evidence to cancel the enforcement, Fines Victoria cancels the enforcement and notifies the enforcement agency.

If the enforcement agency does nothing, the matter is withdrawn. However, if the enforcement agency decides to prosecute the matter, it must issue a charge and summons within 90 days and then the matter will be listed in open court before a magistrate.

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 held as a mention and will 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”.

5 You apply for an enforcement review on the grounds of special circumstances

Where an application for an enforcement review is made on the basis of special circumstances and the application is accepted by Fines Victoria, enforcement of the fine is cancelled and it is referred back to the enforcement agency. If the enforcement agency decides to prosecute the matter, they must withdraw the infringement notice and issue a charge and summons that sets out details of both the relevant offence and the future court hearing (i.e. the time, date and location of the hearing).

This process may result in the matter being heard in the Magistrates’ Court’s Special Circumstances List, or individual matters being heard at the Magistrates’ Court closest to where the offence was committed. If a special circumstances matter is listed at a Magistrates’ Court, see “Appearing in the Magistrates’ Court”, below, Chapter 1.3: Sentencing in the Magistrates’ Court and Chapter 2.3: Representing yourself in court.

If a matter is listed in the Special Circumstances List and other matters are listed at a different Magistrates’ Court, you may be able to get all the matters heard on the same day in the same court in the Special Circumstances List. (See Chapter 2.4: Legal services that can help.)

The Special Circumstances List at the Melbourne Magistrates’ Court is a specific forum just for special circumstances applications and is presided over by a judicial registrar rather than by a magistrate. 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 and be given substantial weight in sentencing.

Having entered a guilty plea, the judicial registrar can consider the relevant special circumstances that the application is based on. While all the normal sentencing options for an open court hearing are available in a special circumstances hearing, most often, defendants in the Special Circumstances List have their matters dismissed, or adjourned on an undertaking of good behaviour for a specified period, after which the matters are dismissed.

An adjourned undertaking can have certain conditions; for example, the person must attend drug and alcohol counselling, or see a particular doctor and provide proof of this to the court. Sometimes, the person must pay a small fine, or their driver licence is suspended for a certain number of days.

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

It is helpful if the special circumstances applicant is represented by a lawyer at the hearing, as a lawyer can convey the information about special circumstances to the judicial registrar efficiently and concisely. Note that Victoria Legal Aid provides a duty lawyer service in the Special Circumstances List.

Note that in cases involving toll road offences (e.g. driving on CityLink or EastLink without paying), the court is required to impose a mandatory costs order of $40 for each offence. This is a judgment debt and is generally not enforced by the tolling companies. However, it is recommended that you seek legal advice about the prospects of this judgment debt being enforced against you (see Chapter 2.4: Legal services that can help).

It is important to understand that making a special circumstances application in the Special Circumstances List involves pleading guilty to the offence(s) that the fines relate to. This means that you may have a finding of guilt on your criminal record. Note that although the court might dismiss the charge, if the offence attracts demerit points, these will still accrue once you enter a guilty plea.

Also note that the future of the Special Circumstances List is currently under review in light of the fines reforms, so this information may change.

For more information on appearing in court, see Chapter 2.3: Representing yourself in court, and Chapter 1.3: Sentencing in the Magistrates’ Court.

6 Enforcement warrant hearings (“section 165 hearings”)

You will be brought before a Magistrates’ Court for a hearing if you are arrested under an enforcement warrant and:

  • you are not eligible for a community work permit (CWP) (see “Arrest and community work permits”, above); or
  • you do not consent to receiving a CWP; or
  • you breach a condition of a CWP.

These hearings are often referred to as “PEW hearings” (penalty enforcement warrant hearings), or “section 165 hearings”, which is a reference to section 165 of the FR 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 sentencing option is a prison term of one day for each penalty unit that you owe up to a maximum term of 24 months imprisonment.

In these hearings, if the court is satisfied that:

  • you have a mental or intellectual impairment, disorder, disease or illness;
  • you have special circumstances;
  • considering your situation, imprisonment would be excessive, disproportionate or unduly harsh; or
  • you are a victim of family violence that substantially contributed to you being unable to control the conduct that constituted an offence.

A court can:

  • discharge your fines in full;
  • discharge part of your fines and make an order giving you time to pay the outstanding amount, or make an instalment order with a warrant to arrest if the order is breached;
  • discharge part of the fines and order imprisonment for a maximum of 24 months, subject to time to pay or an instalment order (also called an imprisonment in lieu (i.e. instead of) order – if you default on the order, a warrant to imprison you can be issued);
  • make a fine default unpaid community work order; or
  • adjourn the matter for up to six months.

If the court is not satisfied of one of the matters above, it can make any of the following orders:

  • make a fine default unpaid community work order (one hour for each penalty unit of fines up to 500 hours); or
  • make an order giving you time to pay your fines; or
  • make an order that you pay your fines in instalments; or
  • make an order adjourning the proceeding for six months; or
  • make an imprisonment order for a maximum of 24 months (including an imprisonment in lieu order, which is an instalment order where if you default, a warrant to imprison you can be issued).

While imprisonment is theoretically possible, the FR Act specifically forbids the court from imposing a term of imprisonment if the reason you have not paid your fines is because you do not have capacity to pay, or you have some other reasonable excuse for non-payment.

The FR Act also specifically prohibits a magistrate from making an order of imprisonment unless they are satisfied that no other order is appropriate considering all of the circumstances.

If you are sentenced to an instalment order and you cannot keep up with the repayments, you can apply to the court for a variation of the instalment order where:

  • your circumstances have materially altered since the instalment order was made and you cannot keep up with the payments; or
  • your circumstances were not accurately presented to the court when the instalment order was made.

If you do not comply with an instalment order, or a time to pay order, or a community work order, the court can issue a warrant to arrest you and bring you back before court.

At this hearing, the court can confirm the original instalment order or time to pay order, or can consider the matter afresh and impose any of the other orders discussed above, noting again that imprisonment must always be a last resort.

If you breach an imprisonment in lieu order, the court can issue an imprisonment warrant without holding a further hearing. If this happens, it is important to urgently get legal advice and apply to the court for a variation of your imprisonment in lieu order or ask the court for a rehearing.

During section 165 hearings, the court has an obligation to proactively inquire into your circumstances and determine if you have special circumstances. This is regardless of whether you or your lawyers specifically tell the court that you have special circumstances (see Victorian Police Toll Enforcement v Taha; Victoria v Brookes [2013] VSCA 37).

If you are sentenced to imprisonment or an imprisonment in lieu order and none of your fines are discharged, you may be able to apply for a rehearing on the basis that:

  • your special circumstances or mental illness or intellectual impairment were not taken into account by the court or were not presented to the court; or
  • evidence was not taken into account by the court or presented to the court that made the decision to imprison excessive, disproportionate and unduly harsh.

Rehearing applications can be lodged at any stage after the initial hearing, even if you have defaulted on a payment plan or have been taken into custody. The court only rehears the matter once, so it is essential that you obtain legal advice and ideally legal representation before a rehearing. It is advisable to request an adjournment if you are unable to find a lawyer to represent you before the rehearing

Appearing in the Magistrates’ Court

You (and your lawyer, if you have one) should arrive at the court at least 20 minutes before the hearing time. You or your lawyer 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 them your name, so that the magistrate knows 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. Generally, this is your only opportunity to argue your case before a magistrate.

If you do not appear, the court is more likely to rule against you. The court is also more likely to impose a harsher sentence if you are not present to tell the court about your personal and other circumstances. Also, some sentences (e.g. an adjournment on an undertaking of good behaviour) require you to consent to the order, so if you want these more lenient sentencing options to be available to you, you need to attend court.

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. The worker’s presence also enables the court to clarify any questions or gaps that might appear in the worker’s report.

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, which gives 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 (see5 You apply for an enforcement review 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 in “Going to court”, having a fine heard before a magistrate in open court is risky. 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 are imposed, or a conviction is recorded against you, or you have to pay 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 You apply for an enforcement review 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.

When you are attending court after being arrested under an enforcement warrant, there are different options and considerations that apply during the hearing. See7 Enforcement warrant hearings (‘section 165 hearings’)”.

It is important that you seek legal advice before attending any type of court hearing in relation to infringements (see Legal services that can help).