If your client is in default of the payment of a fine or any instalment order for more than a month, your client may be issued with a warrant to arrest under s 69(1) of the Sentencing Act 1991 (Vic) (SA).
A warrant must not be executed if, within seven days after a demand is made on the person in default (s 69C(1) of the SA):
the fine or instalment and all warrant costs are paid; or
the person in default has obtained an instalment order or time to pay order; or
an order has been made by the sentencing court under s 69D of the SA (i.e. the person has successfully applied to the court for an order that they can perform unpaid community work for the outstanding fine or instalment).
If your client is arrested, they will be either brought immediately before the Magistrates’ Court or bailed and brought to the court on a hearing date to be fixed. If your client is arrested, bailed and fails to attend the hearing, the Court can proceed to hear and determine the matter in your client’s absence. Alternatively, the Court may issue another warrant to arrest and adjourn the hearing to a date to be fixed.
If your client presents with an outstanding warrant to arrest for failure to pay an open court fine, your client needs to be arrested before the matter can be re-listed before the court. This can often be done administratively by arranging to attend the sheriff’s office and have the warrant executed so that the matter can be brought back before the court. Before advising your client to do this, you should make sure that your client does not have any other outstanding warrants, which might also be executed (in particular, any warrants to imprison).
Preparing for a s 69 hearing
If the court is satisfied by evidence on oath or by affidavit or by the admission of the offender or from an examination of the records of the court that your client is in default by more than 28 days, the Magistrate can order that (s 69E of the SA):
Your client be imprisoned for a term of one day per penalty unit.
The court cannot make an imprisonment order if the court is satisfied that they did not have the capacity to pay the fine or the instalment or had another reasonable excuse for the non-payment (s 69H(3) of the SA).
The court cannot make this order unless it is satisfied that no other order is appropriate in all the circumstances of the case (s 69H(4) of the SA).
The outstanding fine be levied under a warrant to seize property;
The original instalment order (if one was made) be varied; and
An adjournment of the hearing or further hearing of the matter.
You should ensure that you prepare submissions that clearly set out your client’s circumstances and preferred sentencing option. You should also include any supporting documentation.
Note that if your client was held in custody under a warrant issued under s 69 and for no other reason for at least one day, it will be determined that your client has served the equivalent of 1 penalty unit and that will be reduced from the outstanding fine pursuant to s 69P of the SA.