If the person executing the warrant has a reasonable belief that your client does not have sufficient property to cover the amount owed under the warrant, then he or she may break, enter and search for your client in any place where he or she is suspected to be and arrest your client (s 109 of the Fines Reform Act 2014 (Vic) (FRA)).
Because of their limited property, arrest is the most common enforcement option for people experiencing homelessness who have infringement warrants.
If your client is arrested under an enforcement warrant(s) in respect of a registered infringement fine, then subject to your client paying the amount outstanding on the enforcement warrant, your client will be either (see s 110 of the FRA).
If your client’s matter is brought before the Magistrates’ Court, the Magistrate will sentence your client under s 165 of the FRA.
If your client is arrested under an enforcement warrant issued in respect of a registered collection and enforcement order, then subject to your client paying the amount outstanding on the enforcement warrant, your client will either (see s 110(1)(ab) of the FRA):
If your client is arrested in respect of any outstanding registered court fine or outstanding registered court fine under a registered collection and enforcement order, then subject to your client paying the amount outstanding on the enforcement warrant, your client will either (see ss 110(1)(b) and 110(1)(c) of the FRA):.
If your client is subject of a community work permit and failed to report as required under s 152(b) of the FRA to a community corrections centre for the purposes of completing community work, they may be arrested. If they are arrested in accordance with an enforcement warrant, your client will either:
If your client is arrested and is not released on a community work permit, it is most common that your client will be offered bail and a hearing at the Magistrates’ Court will be fixed at a later date. In some cases, however, your client may be brought before the Magistrates’ Court within 24 hours. If your client agrees to the bail conditions by signing an “Undertaking of Bail”, they will be released immediately (see s 5 of the BA and r 5 and Form 1 of the Bail Regulations 2012 (Vic)).
If granted bail under this process, the undertaking of bail will require your client to appear before a particular Magistrates’ Court at a specified time to be heard for committal or hearing of the charge (see s 5(1A) of the BA). If your client does not appear at the Magistrates’ Court in compliance with the terms of the Undertaking of Bail, your client may face imprisonment (see s 30(1) of the BA).
If your client refuses to enter into an Undertaking of Bail and is not eligible for a community work permit, your client will be taken to the person in charge of prison or police jail where they will be held for a maximum period of 24 hours so the matter can be heard by a Magistrate and dealt with under s 165 of the FRA (see ss 110(1)(a)(ii) and 164(1) of the FRA and the definition of “person in default” under s 163(a)(ii) of the FRA.
The operation of s 165 and the risk of imprisonment for clients are discussed in detail in Hearing and Sentencing under Section 165.
Many of Homeless Law’s clients will not be assessed as being capable of expiating their fines under a community work permit however this does remain a possibility under the FRA.
A community work permit is an agreement that your client will perform unpaid community work instead of paying the fine.
If your client agrees to a community work permit, your client will be released immediately.
Your client will be eligible for a community work permit if pursuant to s 150 of the FRA
In considering whether the sheriff is satisfied that your client has the capacity to perform the community work and is reasonably unlikely to breach the conditions of the permit, the sheriff may take into consideration any previous contravention of a community work permit issued to your client under the FRA or any order imposed on your client under the SA (see s 150(4) of the FRA).
If your client is released on a community work permit, then they will effectively work off the outstanding amount of the fine at a rate of 0.2 penalty units per hour, up to a maximum of 500 hours (s 156(1) of the FRA).
Your client cannot work more than 20 hours in a seven day period unless they have requested to do so and sign a written consent to work additional hours, in which case your client may work up to 40 hours in a period of 7 days (see ss 156(2) and (3) of the FRA).
Pursuant to s 156(4) of the FRA the total number of hours worked cannot exceed the following time periods:
|Number of hours||Period|
|376 to 500||24 months|
|251 to 375||18 months|
|126 to 250||12 months|
|51 to 125||6 months|
|Up to 50||3 months|
If the sheriff issues your client with 2 or more community work permits in respect of 2 or more enforcement warrants, the periods of unpaid community work are to be performed cumulatively pursuant to s 155 of the FRA.
While the community work permit is in force, your client can make part payment of the outstanding fines in order to reduce the number of hours that your client is required to work pursuant to s 161 of the FRA.
If your client is ill or there are other exceptional circumstances, the community work permit can be suspended (s 158 of the FRA).
Pursuant to s 152 of the FRA the following conditions apply to all community work permits:
If your client does not, without reasonable excuse, comply with the conditions of a community work permit, a community corrections officer may pursuant to s 160(3) of the FRA file a charge and summons against your client in court. Failure to comply with a condition of a community work permit carries a penalty of 10 penalty units (see s 160(1) of the FRA). A charge can be filed up until 3 years after the date on which the offence is alleged to have been committed (see s 160(4) of the FRA).
Once a charge and summons has been filed, an application can be made for a warrant to arrest your client pursuant to s 160(5) and s 12(1)(b) of the Criminal Procedure Act 2009 (Vic). Once arrested, your client will be brought before the Magistrates’ Court pursuant to s 160(5)(c) of the FRA to be dealt with in accordance with Part 14 of the FRA.
If the Magistrate finds your client guilty of the offence, the Magistrate may:
Pursuant to s 159(1) of the FRA your client or a community corrections officer may make an application to the Magistrates’ Court to vary or cancel the community work permit while the community work permit is in force. Under s 159(4) of the FRA a Magistrate may vary the permit or cancel it if the court is satisfied that:
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