Since 2007, police officers in New South Wales have been empowered to exercise discretion not to send those suspected of committing certain criminal offences to court, but instead issue penalty notices – which are on-the-spot fines commonly known as 'criminal infringement notices' (CINs).
Which offences can be dealt with by way of a criminal infringement notice?
A number of offences for which officers can exercise this discretion are listed in schedule 4 of the Criminal Procedure Regulation 2017.
They are:
- Larceny under section 117 of the Crimes Act 1900, if the amount alleged to be stolen does not exceed $300,
- Unlawful possession of property (also known as 'goods in custody') under section 527C(1) of the Crimes Act 1900,
- Offensive conduct under section 4(1) of the Summary Offences Act 1988,
- Offensive language under section 4A(1) of the Summary Offences Act 1988,
- Obstructing traffic under section 6 of the Summary Offences Act 1988,
- Unauthorised entry of vehicle or boat under section 6A of the Summary Offences Act 1988,
- Continuation of intoxicated and disorderly behaviour following a move on direction under section 9 of the Summary Offences Act 1988, and
- Drug possession under section 10 of the Drug Misuse and Trafficking Act 1985 (except for the possession of cannabis leaf, which is covered by the provisions of the Cannabis Cautioning Scheme) where the alleged possession relates to:
- In the case of 3,4-Methylenedioxymethylamphetamine ('ecstacy'), equal to or less than the small quantity when it is capsule form or less than the traffickable quantity in any other form, or
- Equal to or less than the small quantity for other prohibited drugs,
In addition to these offences, legislation has been passed in recent years empowering police officers to issue CINs for the following alleged offences:
- Driving with a low-range prescribed concentration of alcohol (or ' low-range drink driving'), and
- Driving with the presence of an illicit substance (or ' drug driving').
What are the fines for these offences?
At the time of writing, the fines for the above offences are as follows:
| Alleged offence | Fine |
| Larceny | $300 |
| Goods in custody | $350 |
| Offensive conduct | $500 |
| Offensive language | $500 |
| Obstructing traffic | $200 |
| Unauthorised entry of vehicle or boat | $250 |
| Continuation of intoxicated and disorderly behaviour | $1,100 |
| Drug possession | $400 |
| Low-range drink driving | $587 |
| Drug driving | $587 |
What about alleged COVID-19 breaches?
With the advent of COVID-19, penalty notices have also been applicable to a range of public health-related offences such as:
| Alleged offence | Fine |
| Failing to comply with a public health order | $1,000 for individual
$5,000 for business |
| Failing to comply with a direction to wear a face covering | $500 for adult
$80 for 16 or 17 years $40 for 13, 14 or 15 |
| Failing to comply with the obligation to answer questions, provide name and contact details or provide true and accurate information to a contact tracer | $5,000 |
| Failing to comply with a direction to self-isolate if diagnosed with COVID-19 | $5,000 |
| Failing to comply with a direction to self-isolate if in close contact of a person diagnosed with COVID-19 | $5,000 |
| Providing, displaying or producing information or evidence of vaccination that is not true and accurate | $5,000 |
| Intentionally coughing on or spitting at a public health official | $5,000 |
Will I have a criminal record if I pay the criminal infringement notice?
No. The payment of a CIN does not mean you are guilty of the alleged offence, and a criminal conviction will not be recorded against your name.
This means that you can answer 'no' to the questions: 'do you have any criminal convictions?', 'do you have a criminal record?' and 'have you pleaded guilty or been found guilty of a criminal offence?'.
However, police are able to undertake a criminal infringement notice history check which will show any CINs you have paid.
Can I seek the review of a criminal infringement notice?
Yes. You may request a review of a CIN through Revenue NSW.
However, reviews for police-issued CINs are forwarded on to the NSW Police Service for determination.
Can I appeal a criminal infringement notice to court?
Yes. Whether or not you have sought a review, you can request that a CIN be determined by a court.
But note that if you have requested a review, you will need to wait until it has been determined before you can 'elect' to take the matter to court.
It is also important to bear in mind that if a CIN is taken to court, the case will then be treated in the same way as if formal charges had been laid by police – meaning that if a guilty plea is then entered or the offence is otherwise proved, the regular penalties for the offence will apply including a potential criminal conviction, heftier fines or even the possibility of a prison sentence in some cases.
The prospect of facing these consequences increases the likelihood of CINs being paid rather than contested – whether or not the recipient had actually committed the alleged offence.
It should also be said that if an election to court is made, the prosecution will need to prove the alleged offence beyond a reasonable doubt – a person is entitled to an acquittal and no further penalties if the prosecution is unable to do this.
And even if the offence is proved, the Magistrate retains discretion to deal with the matter without recording a conviction, by granting a section 10(1)(a) dismissal or conditional release order without a conviction.
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.
