Navigating the Infringements System Patr tric ick k Warn rner er Lawyer Homeless Law Melbourne Office PO Box 16013 Melbourne VIC Tel +61 3 8636 4400 Fax +61 3 8636 4455 justiceconnect.org.au/homelesslaw
Outline – what we’ll cover today 1. Overview of the infringements system and special circumstances 2. Practical steps – how to run an infringements matter from start to finish 3. Risks and resources
Why we do infringements work • Many fines are directly related to the experience of homelessness • Homelessness makes it: – More likely that you will get fines, because you’re carrying out your private life in a public place – Tougher to address fines through payment or navigating the complex legal system • Homeless Law assists about 110 clients every year • Core skills for graduates and lawyers – evidence, advice and often an appearance • Area of significant reform – Fines Reform Bill 2014 3
Overview of the Infringements System
Special circumstances – key concept Defined in s 3 of the Infringements Act 2006 (Vic): a) A mental or intellectual disability, disorder, disease or illness; or b) A serious addiction to drugs, alcohol or other volatile substance; or c) Homelessness (including living in crisis or transitional accommodation); AND For (a) and (b), this factor results in the person being unable le to under erstan tand d that the conduct constituted an offence, or una nable le to contr trol l the conduct constituting the offence. For (c), this factor resulted in the person being unab able le to cont ntrol ol the conduct constituting the offence.
Practical steps – running an infringements file Where to start – getting the information you need • • De-mystifying the information – working out what stage fines are at and what type of fines they are Advising the client on their options • • Keeping an eye out for risks 6
Example – John • Mentions a number of different issues • Briefly refers to some fines Not sure how many there are • • Has a payment plan for some, but he can’t afford it – he hasn’t worked since his breakdown and his only income is Newstart Some others that he hasn’t done anything about • • Doesn’t have any paperwork on him • Confirms diagnosis of bipolar disorder, some alcohol issues, currently lives in transitional housing. 7
First steps – getting the information you need • Infringements checklist • Roughly how many fines and about when did you get them? • Seven Day Notice, court date or contact with sheriff? • Special circumstances • Did you commit the offence(s)? • How does Homeless Law Public Space offences policy apply? I.e. if <50% of fines unrelated to homelessness, can’t assist. 8
First steps – get a list of infringements But first – upload client’s instructions on PIMS! Then… Template letter to civic compliance (precedent on • HLIP - http://www.hlp.org.au/caseworkers/fines) Avoid using client’s current address • • Online option (won’t pick up all offences though) http://online.fines.vic.gov.au/fines/ 9
What stage are they at?
De-coding – what types of matters are they? But first – upload the list of fines to PIMS! 1. Still an infringement or penalty reminder notice 2. Driving offence where the client wasn’t driving 3. Open court fine (C + D) 4. Warrant to imprison (D) 5. Excessive speeding (over 25km), DUI or driving under the influence of drugs 6. Standard enforcement order or warrant (A + B) – MOST RELEVANT 11
1. Still at infringement or penalty reminder stage • Internal review (Infringements Act s 22) • the decision was contrary to law or involved a mistake of identity • speci cial al circumst mstances ances apply to the person (Carefu eful: if an application for internal review (special circumstances) is rejected, the agency is obliged to refer the matter straight to court (s 25(3)) conduct for which Infringement Notice was served should be • excused on the ground of exce cepti tiona onal l circumsta mstances ces • Payment plan (or pay in full) • Nominating another driver (see Option 2) • Seek cancellation of Infringement Notice where person was not aware it had been served (Infringements Act s 37) • Electing to be dealt with in open court
2. Driving offences where the client wasn’t driving Transferring traffic infringements – nominating other drivers • When the client was not the driver of the vehicle If the driver does not transfer the fine within the specified time • period they will be held liable • Usually two periods of 28 days to act – i.e. by the time it gets to the Infringements Court it is too late • However, Infringements Registrar may revoke the enforcement order and cancel the fine outside time limits (see Option 6)
3. Open Court Fines (C+D) • It is not possible to apply for revocation of fines imposed as a sentencing disposition under the Sentencing Act in open court • Options for dealing with court imposed fines: • If fines were imposed ex parte and your client has a valid reason for non-appearance, apply for rehearing (Criminal Procedure Act s 88) – Homeless Law can’t run this though. • Apply in person to Registrar of Magistrates’ Court for conversion to unpaid community work (work allocated and supervised by Office of Corrections at $20.00 per hour) Apply in person to Registrar of Magistrates’ Court for payment • by instalment or extension of time to pay
4. Warrants to imprison (D) • Imprisonment in lieu orders • Where client has been sentenced by the Court (most commonly under s 160 of the Infringements Act, where they’re bought before Court in execution of an infringement warrant) • High risk and need urgent attention • Significant risk that client will be imprisoned without being brought back before a court • Victoria Police Toll Enforcement & Ors v Taha [2013] VSCA 37 and ss 160A – E of the Infringements Act
5. Excessive speeding and DUI • Cannot apply for revocation on the basis of special circumstances (Infringements Act s 63A and Road Safety Act ss 89A – 89D) • May be able to apply to have the fees waived and enter into a payment plan for the outstanding amount (Infringements Act ss 76 and 77) • Use same supporting material as for revocation application, but different form Can make a significant difference to the amount owing •
6. Enforcement orders and warrants (A+B)
Warrants and risk of enforcement A warrant will be issued 28 days after non-payment of an enforcement order • • If an infringement warrant has been issued (i.e. 28 days after the enforcement order) against a registered operator of a motor vehicle, a police member or sheriff may: – detain or immobilise (eg wheel clamp) the motor vehicle and, if necessary, remove or impound the motor vehicle – direct VicRoads not to renew the person’s driver licence or vehicle registration • Sheriff must give 7 days notice (in person) and then has a range of enforcement mechanisms available: – search property and seize personal property – seize or sell a motor vehicle (irrespective of whether warrant relates to motor vehicle offence), suspend driver’s licence or vehicle registration – attach earnings or debt orders or place a charge over real property and sell in some circumstances • If client has no assets to seize, they will be arrested (Community Work Permit in some cases or bailed to appear under s 160 of the Infringements Act, with risk of imprisonment)
Applications for revocation • Can apply to the Infringements Court Registrar for revocation of an enforcement order (Infringements Act s 65) • Infringements Registrar has power to revoke the enforcement order if the Registrar is satisfied that there are “sufficient grounds for revocation” (Infringements Act s 66(2)) – If not ot the driver er – Form A – Must satisfy Registrar that they were not driver. Evidence such as Statutory Declaration useful, or plane tickets, passport stamps proving that the individual was not in the country at the time (see Infringements Act s 66(4)) – On the basi sis s of speci cial circum umsta tances ces – Form rm B Can lodge application up unt ntil il warrant nt is exec ecut uted ed •
Special circumstances applications Defined in s 3 – a) A mental or intellectual disability, disorder, disease or illness; or b) A serious addiction to drugs, alcohol or other volatile substance; or c) Homelessness (including living in crisis or transitional accommodation); AND For (a) and (b), this factor results in the person being unable le to under erstan tand d that the conduct constituted an offence, or una nable le to contr trol l the conduct constituting the offence. For (c), this factor resulted in the person being unab able le to cont ntrol ol the conduct constituting the offence.
Lodging a special circumstances application • Get supporting documentation (see precedent letter): Letter from doctor, psychiatrist or psychologist (12 months) • • Letter from homelessness agency (12 months) • Check current status of these documentary requirements with Infringements Court • Advise client about potential impact on their licence • Lodge cover letter, Application Form and supporting report(s) • Warrant will not be executed while the application is being assessed
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