Sentencing under s 165

Hearing and sentencing under s 165 of the Fines Reform Act 2014 (Vic)

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:

  • Have an enforcement warrant(s) issued against them; and
  • Have been issued with a seven day notice and the seven day period has expired (s 119 of the FRA); and
  • Do not have sufficient personal property which if seized and sold, would cover the amounts outstanding.

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:

  • Do not consent to a community work permits;
  • Are not eligible for a community work permit (including because the sheriff is not satisfied that the person has the capacity to perform the community work in accordance with s 150(3) of the FRA);
  • Are not issued with a community work permit within 24 hours after being arrested;
  • Are issued with a community work permit and breach it or have it cancelled by the Court on application under s 159 of the FRA.

Imprisonment and other sentencing options under s 165

If the Magistrate is satisfied that your client has a matter under s 165(2) of the FRA including:

  1. A mental or intellectual impairment, disorder, disease or illness; or
  2. Without limiting 1) that ‘special circumstances‘ apply to your client; or
  3. That having regard to your client’s situation, imprisonment would be excessive, disproportionate or unduly harsh, or
  4. That your client is a victim of family violence that substantially contributed to the person being unable to control the conduct that constituted the offence;

the Magistrate may then;

  • Discharge in full any relevant infringement fine;
  • Discharge in part any relevant infringement fine;
  • Discharge in part any relevant infringement fine and for the remainder of the fine(s), make an order that a person be imprisoned for a term calculated in accordance with s 165B of the FRA (although due to the operation of ss 165(4) and (5) of the FRA, this almost always should be made as an imprisonment in lieu instalment order under s 165A(2)(b) of that act, rather than an order or imprisonment);
  • Make a fine default unpaid community work order under Division 5 of Part 3B of the Sentencing Act 1991 (Vic) (SA) (i.e. order that your client perform unpaid work, where the work requirement is calculated as one hour of work being the equivalent of 0.2 penalty units); or
  • Adjourn the further hearing of the matter for a period of up to 6 months (normally with a view that there will be a full or partial discharge if the client is of good behaviour or makes some payments towards their fines).

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):

  • Make a fine default unpaid community work order under Division 5 of Part 3B of the SA (i.e. order that your client perform unpaid work as discussed above);
  • Allow additional time for your client to pay;
  • Allow payment by instalments;
  • Adjourn the matter for up to 6 months on any terms it sees fit; or
  • Your client be imprisoned, for a period of imprisonment as set out in s 165B of the FRA (although as outlined above, due to the operation of ss 165(4) and (5) of the FRA, this almost always should be made as an imprisonment in lieu instalment order under s 165A(2)(b) of that act, rather than an order for imprisonment).

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:

  • If it is satisfied that your client did not have the capacity (financial or otherwise) to pay the fine or had another reasonable excuse for non-payment (s 165(4) of the FRA); and
  • The Court is satisfied that no other order is appropriate in all the circumstances of the case (s 165(5) of the FRA).

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).

Making submissions in a section 165 hearing

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):

  • A chronology of the offences that were the subject of the warrants and the client’s circumstances over this period;
  • Your client’s mental or intellectual impairment, disorder, disease or illness (s 165(2)(a) of the FRA);
  • Your client’s special circumstances (particularly the way in which your client’s condition(s) or circumstances caused your client to be unable to understand or control the conduct that constituted the underlying offences) (s 165(2)(b) of the FRA);
  • Any history that your client has as a victim of family violence that might have substantially contributed to the client being unable to control the conduct that constitutes the offence (s 165(2)(d) of the FRA).
  • Your client’s financial circumstances including whether or not:
    • They did not have capacity to pay the relevant fines (s 165(4)(a)); or
    • They have some other reasonable excuse for non-payment (s 165(4)(b)).
  • The reasons why imprisonment would be excessive, disproportionate or unduly harsh (s 165(2)(c)). By way of guidance, in Fernando v Port Phillip City Council [2011] VSC 592, the court outlined some scenarios in which imprisonment may be excessive, disproportionate or unduly harsh (however this is not an exhaustive list):
    • A single parent with young children who would be placed in State care if the parent was incarcerated;
    • A sole family provider, where the family would be left destitute or at risk of dispossession in the event that the infringement defaulter was incarcerated;
    • Where the amount of the infringement debt has completely overwhelmed the defaulter causing them to be unable to take any action;
    • Where the defaulter experienced a prolonged period of illness but has since resumed employment; and
  • The sentencing option that you request the Magistrate to make, stressing that s 165(5) means that all other alternative sentences to imprisonment or imprisonment in lieu orders be considered.

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 Taha case

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 [2013] 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:

  • Section 160 of the then IA, and now the FRA, must be read as a whole, which means that before imposing an imprisonment or imprisonment in lieu order the Court must consider the availability of ‘less draconian’ orders.
  • In order to satisfy itself as to which option should be ordered, the Court has a duty to proactively inquire into the circumstances of the infringement offender including the existence of special circumstances.
  • How the Court exercises its duty to inquire depends on all the circumstances. There will be ‘flags’ which indicate to the Court what inquiries need to be made.
  • If the offender is represented by a lawyer, it does not necessarily follow that the Court does not need to inquire as to the client’s circumstances.
  • If the Court’s inquiry reveals that further evidence of the offender’s circumstances is needed, the Court should take steps to make sure that it is received. The Court could receive that evidence orally or adjourn the hearing to allow written evidence to be obtained.

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.

Practice tips

Lawyers representing clients in matters where the client is being sentenced under s 165 of the FRA should:

  • Ensure that they have properly considered how s 165(2) of the FRA might apply to their client;
  • Prepare submissions for the Court in relation to ss 165(2), 165(4) and 165(5) of the FRA;
  • If documentary evidence is not available:
    • Consider the possibility of leading oral evidence from their client or from over the bar table.
    • Discuss with the Court whether written evidence will be needed to assist with their inquiry.
    • If the Court requires documentary evidence, request an adjournment for their client to assist the Court to conduct their inquiries.
    • If the court provides an indication that a term of imprisonment is being contemplated and likely, the client may be eligible for a grant of legal aid which may enable Victoria Legal Aid to pay for additional expert reports including neuropsychiatric assessments and psychologists and other expert’s reports. If the absence of this evidence is what is leading the Court to consider a term of imprisonment we should seek an adjournment to make enquires about the client’s eligibility for a grant of aid.

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