The Time Served Scheme (TSS) allows people to apply to have eligible fines waived, based on the time they have spent in prison. This process is often referred to as ‘calling in’ fines and in many cases will not result in someone spending additional time in prison.
Calling in fines will generally happen one of two ways:
If your client is serving a time of imprisonment, their Time Served Scheme application must be made while they are in prison based on s 171AA(a)(i) of the Fines Reform Act 2014 Vic ( FRA).
If your client was in prison but is no longer in prison because:
they will have six months from their release date to apply to the Time Served Scheme (s 171AA(ii)).
In some circumstances there is a risk of additional prison time. Consider whether this applies and advise your client accordingly before applying to the Time Served Scheme. See What if my client has excess below.
Helpful terms
Court fine – a court fine is a fine imposed by a court.
Infringement fine –a fine issued by an enforcement agency (e.g. Victoria Police or City of Melbourne council).
Remand – a time spent in prison before someone has been sentenced or their charges have been resolved. It is not uncommon for a person to be held on remand for months before they are sentenced or their charges are resolved.
Excess – where the time someone spends in prison (including on remand) exceeds the amount of their fines debt based on the calculation of one penalty unit per day of time in custody.
Practice tip
Infringement fines can be called in once they have been registered with Fines Victoria (s 163). This is the stage where a notice of final demand is issued.
A court fine registered with Fines Victoria (s 163) can also be resolved through the Time Served Scheme (s 163). Court fines imposed by the Supreme Court of Victoria are not eligible to be waived through the Time Served Scheme.
The process for fines to be waived through the TSS is the same for outstanding registered court fines or registered infringement fines.
Court fines at warrant stage prior to 2018
Where a court fine progressed to warrant to arrest stage prior to 2018, the options to waive the fine through the time served scheme are limited and an application cannot be made post release. See Warrant to arrest court fines.
If your client is serving a sentenced term of imprisonment, they can apply to call in their fines (ss 171AA(a)(i) and 171AB(2)). If they have an excess and the Director is required to apply to the relevant court on their behalf, the Director must do this while the person is still in prison (ss 171A (4) and 171AC).
If your client is released directly from court, they have six months to have their fines waived through the TSS. To be eligible for the TSS after release from prison, they must no longer in prison because:
Your client can apply in writing to the Director to call in their fines (s 171AB)(1)). The Director must then determine if it can administratively waive them, or if is required to apply to the relevant court for the fines to be resolved.
Director must administratively waive your client’s fine debt if it is not required to apply to court (see below) (s 171AD). The amount waived cannot exceed the equivalent of 24 months in custody.
Any administrative fees and charges added to the fine will also be waived through this process (see note in s 171AD).
The Director must apply to the court on your client’s behalf, seeking an order for the fines to be waived, if:
When calculating the fine debt to determine if there is excess, the fine debt does not include any additional fees that have been added (e.g. administrative fees added by Fines Victoria) (s 171AC(2)). As of 1 July 2022, a Victorian penalty unit is valued at $184.92.
The Director cannot apply to the court if your client is no longer in prison, unless they were released directly from court as outlined above and your client is making their application within 6 months of their release (ss 171A (4)-(5) and 171AC).
The Director must also apply to the Magistrates’ Court if the fines are infringement fines or court fines imposed by the Magistrates’ Court and to the County Court if they are fines imposed by the County Court.
Where the Director must apply to the relevant court seeking an order for the fines debt to be resolved, the court can make a Time Served Order under s 171B and an additional order under s 171C as required. The Time Served Order under s 171B effectively relates to the time someone is otherwise is custody.
Where the Director makes such an application it does not include the associated fees and costs added to waive court fines or infringement fines (s 171AF).
The court can make a Time Served Order waiving your client’s fines debt at a rate equivalent to how much time your client spent in custody for a non-fine related sentence. The Time Served Order can include time spent on remand and time spent in prison after your client was sentenced. A Time Served Order must be served concurrently with any non-fine related sentence (s 171E(3)).
The Time Served Order can be made in your client’s absence and regardless of whether they have been released from custody (s 171B(3)).
Any excess may be dealt with by the court under a s 171C order (s 171B(4)).
The Court can make an order under s 171C if:
Pursuant to s 171C(3), if the court is satisfied:
then the court can:
If the court makes an order for full or partial discharge of fines, the court may also make a time to pay order or instalment order (s 171D(1)).
If the Court is not satisfied of the matters under s 171C(3), then the court under s 171C(4) can make one or more of the following orders:
The court cannot make an order for imprisonment where there is an excess or your client is only serving a fine related sentence if your client satisfies the court that:
Before making an order for imprisonment, the court must also be satisfied under s 171C(6) that no other order or relevant subsection is appropriate in all the circumstances of the case.
Where a court makes an order for imprisonment under s 171C(2)(c) or s 171C(4)(e) in relation to someone with an excess or in relation to someone who is only serving a fine related sentence, this time is served cumulatively pursuant to s 171E(3). This contrasts with a Time Served Order which is served concurrently with a non-fine related sentence pursuant to s 171E(2).
Homeless Law clients may be able to satisfy the above criterion so the risk of imprisonment is low, however, they should be advised of the risk of imprisonment.
If your client has an excess, or is only serving a fine related sentence, the Director will have to apply to the relevant court seeking an order to have the fines waived. There is a low risk that they may be required to spend additional time in prison.
It is very important you calculate any additional time in prison time for your client and advise them of the risk of further time in prison accordingly based on whether or not the client has an excess and their circumstances.
If the court makes a Time Served Order under s 171B or an order regarding an excess pursuant to s 171C(2), 171C(4), 171D(1) or 171D(2)(b) then any fees and costs added to a court fine or infringement fine are waived.
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