The COVID-19 Act amends the operation of time served orders under the FRA. Under subsections 185B(1) and (2) of the FRA, a person (whether or not they are currently in custody) may make a written request to the Director, as soon as reasonably practicable, to apply for a time served order, if the person was unable to make the request as a result of matters relating to the COVID-19 pandemic.
The Director may also apply for the time served order or an order under section 171C, whether or not the subject of the application is in custody (Subsection 185B(3) FRA)). These amendments will expire on 26 April 2021.
The process and outcomes available for calling in infringement fines differs slightly from court fines. If your client is seeking to call in court fines, please see ‘Calling in court fines‘.
The time served scheme allows prisoners who have registered infringement fines or court fines to expiate their fines by serving time in prison, concurrently with existing time spent in custody (including time on remand) for other offences. In most cases this will not result in the client having to spend additional time in prison and will enable the client’s to leave prison debt free.
If your client is in custody and is the subject of a relevant outstanding fine registered with Fines Victoria, they can request in writing under s 171A(1) of the Fines Reform Act 2014 (Vic) (FRA), that the Director of Fines Victoria apply to the Magistrates’ Court for an order for the client to serve a term of imprisonment in default of payment of their infringement fines (also called ‘calling in’, ‘a time served order’, rolling over fines or the ‘sheriff prison program’).
For the purpose of this application, one day spent in prison equates to one penalty unit of debt expiated whilst in custody pursuant to s 171B(1) of the FRA. The current value of a penalty unit is $161.19 (as at 1 July 2018) (see s 171E(1) of the FRA).
The value of a penalty unit changes each year and is set by Department of Treasury and Finance. The power to set a penalty unit derives from ss 5(2) and 6(b) of the Monetary Units Act 2004 (Vic) which are then required to be published in the Victorian Gazette.
Pursuant to ss 171A(2)(a) and 171B(3) FRA, application for a time served order must be made whilst the person is in custody, although if a person is released from custody after the application is made but before it is determined, the court can still make a time served order for all or part of the fine. The fines must be registered with Fines Victoria (they do not need to be at the warrant stage), but they must related to offences that occurred before the person went into custody pursuant to s 171A(3) of the FRA.
A time served order will be served concurrently with any non-fine related sentence imposed on a person (i.e. at the same time as the current sentence) pursuant to s 171E(2) of the FRA and s 16(2) of the Sentencing Act 1991 (Vic) (SA). The maximum time that can be spent in prison to ‘work off’ an unpaid fine is 24 months or 730 penalty units. Typically a client will not have to serve any extra time under a time served order provided their non-fine related sentence is long enough to cover fines being called in or their existing sentence is not also fine related.
Generally the Magistrates’ Court will hear the application for a time served order administratively and ex parte without the client needing to attend a hearing.
A court attendance however may be required (either in person or by video link) where:
This is called having an “excess”. A court attendance is needed in these cases is because it is not possible for the existing sentence to be wholly served concurrently (either due to the excess, or because it is too late once a person has left prison, or because the sentence is fine related and a second fine related sentence must be served cumulatively).
Magistrates are given flexible sentencing options for dealing with an excess and whilst often this will not result in additional prison time, there remains a slight risk that the client may have to spend additional time in custody.
In particular where your client:
And the Court is satisfied that:
The court may order:
If however the Court is not satisfied that:
The court may order:
The court however is prohibited from making an order that the person serve a term of imprisonment cumulatively, if the court is satisfied the person did not have the capacity to pay the fines or had a reasonable excuse for non-payment. The court also must not make an order for more time to be served cumulatively unless it is satisfied that no other possible order available is appropriate in the circumstances of the case (see ss 171C(5) and (6) of the FRA).
If the court makes an order that a person serve a term of imprisonment cumulatively and you think that the court did not take into account:
A rehearing application may be made under s 171H(1) of the FRA.
In practice, we understand that Fines Victoria will manage the time served scheme and include all registered infringements. Key things to note when advising your client about the option of calling in their fines are:
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