There are a number of different ways that an infringement matter can be referred to open court:
The enforcement agency can refer the matter to open court under s 17 of the Infringements Act 2006 (Vic) (IA).
If your client makes an application for internal review on grounds other than special circumstances and the enforcement agency declines to withdraw the infringement notice, the agency may elect to refer the matter to open court (s 25(1) of the IA).
Note: An unsuccessful application for internal review on the grounds of special circumstances, no longer results in a referral to open court as was the case under the pre-reform IA (s 25(2) of the IA).
If your client applies for enforcement review under s 32(1) of the Fines Reform Act 2014 (Vic) (FRA) and Fines Victoria approve the application and cancel the enforcement, the enforcement agency must within 90 days, withdraw the infringement and either:
Note: If the application for enforcement review was made under s 32(1)(b)(i) of the FRA, these applications are sometimes being listed in the Special Circumstances List of the Magistrates’ Court. However the continuation of this list is currently in doubt and so these applications may now be listed in open court. See our Infringements Guide for Pro Bono Lawyers below for how to approach this situation. Applications for enforcement review on any other ground under s 32(1) of the FRA, will always be heard in open court.
After the expiration of a 7 day notice, if your client is intercepted by Police or the Sheriff they can be arrested and administratively bailed to attend court for a hearing under s 165 of FRA if they do not consent to a community work permit, or are assessed as otherwise ineligible for a community work permit in accordance with s 150(3) of the FRA.
It is important that your client attends the court hearing for a number of reasons, even if they are charged on summons. You will need to discuss the charge and the evidence with them to establish if they want to plead guilty or not guilty or if an adjournment is required. It is important to prepare the client about what to expect in terms of procedure and likely penalties for a guilty plea.
Before the hearing, you will need to go to the courtroom where the matter is listed and announce your appearance with the Magistrates associate. This means telling the associate your name, your client’s name, how the matter is proceeding and whether it is ready to proceed.
When the associate calls your matter, you will announce that you are appearing on behalf of your client and whether your client is pleading guilty or applying for an adjournment (whether for further disclosure or a not-guilty plea).
If your client is pleading not guilty, the matter will be adjourned to a later date for contested hearing. If your client is pleading not guilty, please contact Homeless Law for assistance as these hearings can be more complex.
If the matter is proceeding as a plea of guilty, the Magistrate will ask the enforcement agency prosecutor for an outline of the alleged offences. You will then need to make submissions regarding the circumstances of the offending and the client’s personal circumstances. You will also have the opportunity to make a sentencing submission, so it is important to consider in advance what penalty you (and your client) consider appropriate in the circumstances. If you are unsure about your sentencing pitch, you should contact Homeless Law’s Senior Criminal Lawyer for assistance.
For matters that are not being heard under s165 of the FRA, you can also ask the Magistrate for a sentencing indication under s 6AAA of the Sentencing Act 1991 (Vic) (SA). Magistrates are generally willing to provide an indication of the likely sentences being contemplated for a guilty/not guilty plea, to aid in the efficient and expedient operation of the court’s list.
It can be helpful if a case worker or social worker is present at the hearing, as this often sends a message to the court that your client is engaging with supports and trying to address the underlying causes of the alleged offending.
Homeless Law’s general policy is not to appear for a client in their absence, unless you have the client’s instructions to apply for an adjournment. If your client is unable to attend their court date, you should obtain these instructions. If you are unable to get instructions to apply for an adjournment and the client fails to appear at court, you should not appear on their behalf. If you have any concerns, you should contact Homeless Law staff to discuss this further. Where the accused fails to appear, the Magistrate can either issue a warrant to arrest or deal with the matter ex parte (the latter is more likely in the case of minor summary offences). Your client may be able to apply for a rehearing in these circumstances.
As mentioned above, there are a number of different ways in which a person can find themselves before open court. Some of the most common of these are discussed in this section.
Open court matters where the client has been arrested pursuant to an enforcement warrant and is being dealt with under s 165 of the FRA are discussed here. Note that for those matters, the sentencing dispositions are not under the Sentencing Act but under section 165 of the FRA.
If your client is pleading guilty to the offence, you should prepare sentencing submissions which clearly set out:
If your client is found guilty of the offence(s) in open court, the Magistrate will sentence your client under the SA.
Section 5 of the SA sets out sentencing guidelines. The only purposes for which a sentence may be imposed are:
Further, in sentencing an offender, the court must have regard to:
Courts are required to not impose a sentence that is more severe than that which is necessary to achieve the relevant sentencing purpose. In particular, courts must not impose a sentence that involves the confinement of the offender unless it considers that the purpose for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender (s 5(3) to s 5(7) of the SA).
Courts may make conviction or non-conviction orders. In exercising its discretion whether or not to record a conviction, the court must consider, among other things:
The court’s sentencing options under the Sentencing Act include (in increasing order of severity):
For the majority of Homeless Law clients, an unconditional dismissal (s 76 of the SA) or an adjourned undertaking without conviction on conditions (s 75 of the SA) will be the most appropriate sentencing disposition. The latter may be used to enable the court to tailor orders requiring, for example, that the defendant comply with a case management plan prepared by their case worker, thereby addressing the underlying causes of their offending behaviours.
We note, however, that sentencing in open court can sometimes be harsher than in the Special Circumstances List, so you will need to be aware of other sentences that might be imposed (for example, fines) and present clear, evidence-based arguments as to why a more lenient sentence is more appropriate.
Important issues for you to advise your client about are contained in the Going to Court: Special Circumstances List, including:
If you have a matter in open court and need further guidance, you should contact Homeless Law.
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