Your client can be arrested through the execution of a warrant under s 109(2)(b) of the Fines Reform Act 2014 (Vic) (FRA) if they:
The section on Warrants to arrest, bail and community work permits deals with this process in more detail.
If your client is arrested under s 109(2)(b) of the FRA, they may appear before the Magistrates’ Court to be sentenced under s 165 of the FRA if they:
If the Magistrate is satisfied that your client has a matter under s 165(2) of the FRA including:
the Magistrate may then;
If the Magistrate is not satisfied that your client has any of the circumstances set out in s 165(2) of the FRA, the Magistrate may impose one of the following sentences (s 165(3) of the FRA):
As alluded to above, the court is expressly prohibited from making an order of imprisonment under ss 165(1)(c) and (3)(e) of the FRA if:
For that reason you should always strongly argue that an order of imprisonment is disproportionate having regard to the sentencing criteria under s 5 of the SA and should never be made other than in the most exceptional cases, and only after the client has had several chances at less restrictive sentencing outcomes under Part 14 of the FRA.
If your client’s matter is adjourned, the Magistrate may impose conditions on an adjournment (such as requiring your client to engage with services or do a drivers’ education course, attend drug and alcohol counselling or obtain medical treatment and provide evidence of this) (ss 165(1)(e) or (3)(d) of the FRA). When the matter resumes after an adjournment, the Magistrate will reconsider the matter and your client’s circumstances.
The Magistrate is also empowered under s 165 of the FRA to order imprisonment in default of compliance with a payment plan (ss 165(3)(b)-(c), 165A(1) and (2)(b) of the FRA) which effectively means that an imprisonment order is stayed for as long as the person complies with the instalment order. These are commonly referred to as imprisonment in lieu orders (IIL orders) as prison time will be served in lieu of payment if the payment order is not complied with.
If your client defaults on a payment of an IIL order, then a warrant for imprisonment may be issued under s 68 of the Magistrates’ Court Act 1989 (Vic) immediately without further hearing and your client may be imprisoned.
If your client is imprisoned pursuant to a warrant under this section, and part payment has been or is made of the outstanding fines, it will reduce the number of days that your client must serve (see s 171 of the FRA).
If you appear on behalf of your client at a s 165 hearing, subject to your client’s instructions, you should prepare submissions which clearly set out (where relevant):
Supporting material is extremely important in these sentencing matters, for example if your client is relying on special circumstances or mental or intellectual impairment, disorder, disease or illness, then you should ensure that you have sufficient evidence and supporting documentation available to hand up to the Magistrate. Other supporting documentation such as character references, budgets showing limited income or supporting letters regarding caring responsibilities are also relevant.
In the event that you are unable to obtain the required supporting documentation before the hearing, you should consider applying for an administrative adjournment prior to the hearing to allow this material to be obtained pursuant to s 20 of the Criminal Procedure Act 2009 (Vic).
The judgment of the Supreme Court of Victoria Court of Appeal in Victoria Police Toll Enforcement & Ors v Taha & Ors and State of Victoria v Brookes & Anor  VSCA 37 dealt with orders made under the then s 160 of the Infringements Act 2006 (Vic) (IA) which is the section that has now been amended and replaced by s 165 of the FRA. In this matter, Nettle, Tate and JJA in three separate judgments, made the following findings:
It should note that the judgment in Taha is equally applicable to s 165 of the FRA and that there are now additional grounds under ss 165(2), (4) and (5) that the court must proactively enquire into and consider before lawfully making an imprisonment or imprisonment in lieu order. In particular, ss 165(4) and (5) have somewhat codified the rules in Taha and confirmed that an order of imprisonment must be made as a last resort.
Homeless Law has prepared a detailed case note on Taha below.
Lawyers representing clients in matters where the client is being sentenced under s 165 of the FRA should:
This page contains legal information only. View our disclaimer.
Homeless Law in Practice provides resources and tools for Victorian lawyers and advocates. If you’re looking for help, visit Justice Connect.