Open Court hearings

Types of open court matters

There are a number of different ways that an infringement matter can be referred to open court:

1. Infringement notice or penalty reminder stage

The enforcement agency can refer the matter to open court under s 17 of the Infringements Act 2006 (Vic) (IA).

Your client can elect to have the matter heard in open court under either ss 16 or 30 of the 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).

2. Enforcement order or warrant stage before execution

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:

• Take no further action;
• Issue an official warning pursuant to s 8(1) of the IA; or
• Commence a proceeding prosecuting the offence by filing a charge sheet with the Magistrates’ Court under s 6(1)(a) Criminal Procedure Act 2009 (Vic) (CPA) (s 38(1) of the FRA).

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.

Arrest and execution of enforcement warrants.

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.

Appearing at Court

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.

Specific types of open court matters

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.

Sentencing submissions – if your client is pleading guilty

If your client is pleading guilty to the offence, you should prepare sentencing submissions which clearly set out:

• each infringement offence and dates;
• the process by which the matter has been referred to Court;
• that your client is pleading guilty to the offence;
• your client’s reason or explanation for committing the offence;
• your client’s personal circumstances at the time of the offending and at the time of the plea;
• any rehabilitative or restorative treatment undertaken by the client;
• your client’s financial circumstances (including weekly income and expenses);
• whether your client has the ability to pay the fines and how payment of the outstanding amounts would exacerbate the client’s condition or mental, physical, financial or social hardship;
• any other individual circumstance of your client that may be relevant;
• the sentencing option that you consider appropriate in the circumstances.
• You should ensure that you have sufficient evidence and supporting documentation available to hand up to the Magistrate.

Sentencing at open court

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:

• Punishment; or
• Deterrence; or
• Rehabilitation; or
• Denunciation of the person’s conduct; or
• Community protection; or
• A combination of two or more of these purposes.

Further, in sentencing an offender, the court must have regard to:

• The maximum penalty prescribed for the offence; and
• The standard sentence for the offence; and
• Current sentencing practices; and
• The nature and gravity of the offence; and
• The offender’s culpability and degree of responsibility for the offence; and
• Whether the offence was motivated (wholly or partly) by hatred or prejudice against a group with common characteristics with the victim or which the offence believed the victim was associated with; and
• The impact of the offence on any victim of the offence; and
• The personal circumstances of any victim of the offence; and
• Any injury, loss or damage directly resulting from the offence; and
• Whether the offence pleaded guilty to the offence the stage in the proceedings when the guilty plea was made; and
• The offender’s previous character; and
• The presence of any aggravating or mitigating factor (s 5(2) of the SA).

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 nature of the offence; and
• The character and past history of the offender; and
• The impact of recording a conviction on the offender’s economic or social well-being or on their employment prospects (s 8(1) of the SA).

The court’s sentencing options under the Sentencing Act include (in increasing order of severity):

• Dismissal without conviction – if a court is satisfied that a person is guilty of an offence, then the court may, without recording a conviction, dismiss the charge (s 76 of the SA).
• Dismissal with conviction – a defendant may also be convicted and discharged for any offence (s 73 of the SA).
• Deferral of sentence – the court can defer sentences for up to 12 months for suitable defendants regardless of age for the defendant’s rehabilitation for example (s 83A of the SA).
• Adjournment without conviction – a defendant, after pleading guilty, may have their case adjourned for up to 60 months on an undertaking of good behaviour and compliance with any other special conditions (s 75 of the SA). The case will be dismissed following the expiration of the adjournment but only if the conditions are complied with.
• Adjournment with conviction – a defendant may be convicted of an offence but have their case adjourned for up to 60 months and be released on an undertaking of good behaviour and compliance with any other special conditions (s 72 of the SA). The case will be dismissed following the expiration of the adjournment.
• Impose a court fine (s 49 of the SA). Court-imposed fines can be imposed with or without a conviction (ss 7 and 49 of the SA). The court must take into account the defendant’s financial circumstances and the nature of the burden that payment of the fine will impose (s 52 of the SA). A fine may be paid by instalment or through unpaid community work orders (s 64 of the SA). If your client receives a court fine you should give them further advice and options, noting that payment of court fines is now managed through Fines Victoria.
• Impose an aggregate fine – the court can impose one aggregate fine if the client has 2 or more offences of a similar nature (note this may happen if the court cannot find that special circumstances applied to the offences) (s 51 of the SA).
• Cancel/suspend licence or permit – the court has additional powers to suspend/cancel a person’s driver’s licence (s 89A of the SA).
• A community correction order (CCO) – CCOs may be ordered with or without convictions and may require a pre-sentence report, up to two years of unpaid community work, a drug and alcohol assessment and mandatory reporting. CCOs may also impose other conditions such as treatment and rehabilitation, restrictions on use of alcohol or drugs or association with certain people or where the defendant may reside (s 37 and Part 3A of the SA).
• A youth justice or residential centre order – a youth justice or residential centre order may be imposed for young offenders (aged 18 or more but under 21 at the day of the court hearing) for a maximum period of up to 24 months so that they are not sent to an adult prison (s 32 of the SA).
• A drug treatment order (DTO) – DTOs may be made by the Victorian Drug Court. A DTO has two parts: a treatment and supervision part (which consists of conditions addressing the defendant’s drug or alcohol dependency); and a custodial part (which is suspended pending satisfactory completion of the treatment and supervision part) (s 18Z of the SA).
• A term of imprisonment.

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:

• Breach of undertakings
• Refund of money paid
• Demerit points
• CityLink and Eastlink fees

If you have a matter in open court and need further guidance, you should contact Homeless Law.