Australia: Infringements: Steps that could lead to a term of imprisonment and how to avoid it.

Last Updated: 1 September 2014

By: Dee Giannopoulos

Infringements have become an increasing problem in Victoria in recent times. Many people find themselves opening their letterbox to an Infringement Warrant/Enforcement Order or, worse yet, having the sheriff knock on the door wanting to clamp their car due to unpaid infringements, which they know nothing about. The worst of it is, without the proper action being taken, these infringement warrants and enforcement orders could result in a term of immediate imprisonment.

The process begins with an infringement notice and can escalate from there.
Outlined below are the steps relating to the circumstances many people find themselves in with relation to infringements.

  1. Infringement Notice
  2. This is the first notice received in relation to an infringement either from Victoria Police in relation to an unpaid ticket (parking or the like) or from Civic Compliance in relation to use of the tolls without a valid e-tag, for example.At this early stage, the best option is to either pay the fine by the due date to avoid additional charges being incurred, ask for an extension of time or nominate another driver.

    If either of these two options are not undertaken or you never receive the infringement notice then the matter is taken to the next stage.

  1. Enforcement Orders
  2. Once an infringement reaches the stage of an enforcement order, the amount increases by one third. This increase is the administrative charges incurred as a result of not having paid the infringement at the earlier stage.At this point you can contact the Infringements Court to make application for a payment plan. This may or may not be granted. But buyer beware – if the Infringements Court agrees to place you on a payment plan and you at any stage default on the payments as agreed, the payment plan is automatically cancelled and you are required to pay the entire amount owing at that point.

    This is where many people get caught up because once a default occurs, an Infringement Warrant Notice is issued and the matter is remitted to the Sheriff's office. This is discussed in more detail further below.

    The other option at this point is to complete a Revocation Application in relation to nominating another driver, nominating another owner or indicating that you were the driver but there were special circumstances (homelessness, mental or intellectual disability/disorder/disease/illness, financial hardship, drug or alcohol addiction). If you will be applying under special circumstances, supporting documentation needs to be attached to the application from a treating doctor for example and details set out in the application in relation to the special circumstance.

    It is best to instruct a solicitor to assist with this option to ensure all relevant matters are put correctly in the Revocation Application for the best chance at revocation.

    The Infringements Court will consider the application and may ask for more detail. The Court will then either agree to revoke the infringements or refuse the application and remit the matter to the Magistrates Court for hearing and determination by a Magistrate.

    If none of these options are entered into then the matter progresses to the next stage.

  1. Infringement Warrant
  2. By this stage, the infringement is 3 times the original amount as an additional one third is added for further administrative costs. If the amount on the Infringement Warrant Notice is not paid, the Sheriff has the authority to locate you and ask that you pay a deposit towards your infringements in the amount of approximately 10%. The Sheriff will give provide you with a 7 day notice upon which you need to pay the outstanding amount. If this amount is not paid, the Sheriff also has the authority to clamp the car with the registration related to the infringements or seize your personal property. The Sheriff will then arrest and bail you (on the spot). The Sheriff has the authority to clamp your car with the registration related to the infringements, sell the car or seize your personal property. Once you have been arrested and bailed, the matter will be sent to the Magistrates Court and the Sheriff will advise you of the court date at which you must appear.

  1. Magistrates Court Hearing
  2. The final stage is the Magistrates Court hearing. The law surrounding infringements, which outlines the power of the Court in relation to these types of matters is set out in section 160 of the Infringements Act 2006:

    160. Powers of the Court

    1. The Court may order that the infringement offender be imprisoned for a period of one day in respect of each penalty unit, or part of a penalty unit, to which the amount of the outstanding fines under the infringement warrant or warrants is an equivalent amount.
    2. If the Court is satisfied-
      1. that an infringement offender has a mental or intellectual impairment, disorder, disease or illness; or
      2. without limiting paragraph (a), that special circumstances apply to an infringement offender-

      the Court may-

      1. discharge the outstanding fines in full; or
      2. discharge up to two thirds of the outstanding fines; or
        (da) discharge up to two thirds of the outstanding fines and order that the infringement offender be imprisoned for a period of one day in respect of each penalty unit, or part of a penalty unit, to which the remaining undischarged amount of the outstanding fines under the infringement warrant or warrants is an equivalent amount; or
      3. adjourn the further hearing of the matter for a period of up to 6 months.
    1. If the Court is satisfied that, having regard to the infringement offender's situation, imprisonment would be excessive, disproportionate and unduly harsh the Court may-
      1. order the infringement offender to be imprisoned for a period that is up to two thirds less than one day in respect of each penalty unit, or part of a penalty unit, of the penalty units to which the amount of the outstanding fines is an equivalent amount; or
      2. discharge the outstanding fines in full; or
      3. discharge up to two thirds of the outstanding fines; or
        (ca) discharge up to two thirds of the outstanding fines and order that the infringement offender be imprisoned for a period that is up to two thirds less than one day in respect of each penalty unit, or part of a penalty unit, of the penalty units to which the undischarged amount of the outstanding fines is an equivalent amount; or
      4. adjourn the further hearing of the matter for a period of up to 6 months; or
      5. make a fine default unpaid community work order under Division 3 of Part 3B of the Sentencing Act 1991
    1. If the Court has made an order under subsection (1), (2)(da), (3)(a) or (3)(ca) for imprisonment in default of payment of outstanding fines-
      1. a warrant to imprison may be issued under section 68 of the Magistrates' Court Act 1989; and
      2. the Court may make an instalment order under the Sentencing Act 1991 in respect of the payment of the outstanding fines.

If you have not instructed a lawyer up until this point, now would be the time, as unless the Magistrate is persuaded in the alternative they have the power to order an immediate term of imprisonment for a number of days which equate to the total value of the infringements.

Doogue O'Brien George solicitors have had much success in avoiding imprisonment for our clients and in successfully arguing that a substantial reduction (referred to in court as a discharge) ought be ordered in relation to the outstanding amount of infringements prior to a payment plan being entered into.

It is important to note that once a payment plan is entered into with the Magistrate, the Magistrate must make an imprisonment in lieu order. This means that IF you default at any time on the payment plan entered into at the court hearing, a warrant will issue, you will be arrested by the Sheriff and must serve the entire amount of outstanding fines in days in custody. There is no leniency, nothing a Magistrate can do after this point and no appeal options as per the legislation.

What can be done, however is this; you must pre-empt a default. If you can foresee, for example, that in one months time you will not be able to afford the payment, a special mention is to be listed before the SAME Magistrate who placed you on the payment plan. Application can then be made before that Magistrate to vary the order to allow you a short time to have the funds to continue on with the payment plan.

An example of this is, if you attend at Broadmeadows Magistrates Court for the court hearing and after some time passes (during which you are making the payments as required) you realise that you will fall short of funds and are likely to default, you must list a special mention before that same Magistrate for application to vary. If for some reason the Magistrate has relocated to a different court say Sunshine or even Wangaratta for example, that is the court at which the mention must be listed.

Therefore, imprisonment can be prevented by variation but ONLY if you pre-empt the default.

Once you default and Sheriff knocks on your door, it will be too late.

The earlier a solicitor is instructed in this process, the greater the chance of revocation or non-imprisonment, depending on the stage of the matter, and the greater the chance that the amount of the debt will be reduced.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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