The Law Handbook 2024

122 SECTION 3: Fines, infringements and criminal law All the normal sentencing options for an open court hearing are available. You may be sentenced to an undertaking to be of good behaviour for a specified period after which the matter is dismissed, or you may receive a court fine, or your matter may be dismissed. An adjourned undertaking can have certain conditions; for example, the person must attend drug and alcohol counselling, or see a particular doctor and provide proof of this to the court. It is possible for your driver licence to be suspended for a certain period of time. The prosecuting agency may also seek, and be awarded, costs. Therefore, it is possible that the outcome will be more expensive than if you had paid the fines to begin with. It is helpful if the special circumstances applicant is represented by a lawyer at the hearing, as a lawyer can convey the information about special circumstances to the judicial registrar or to the magistrate efficiently and concisely. Note that Victoria Legal Aid provides a duty lawyer service for open court infringements matters where a person is at real risk of being imprisoned. You can also contact your local community legal centre to see if they can represent you (see Chapter 2.4: Legal services that can help). Note that in cases involving toll road offences (i.e. driving on Linkt or EastLink without paying), the court may impose an administrative costs order of $40 for each toll offence for all matters where you are found guilty regardless of whether a conviction is recorded, unless it is satisfied that you are experiencing acute financial hardship or you have special circumstances. This is a judgment debt and is generally not enforced by the tolling companies. However, it is recommended that you seek legal advice about the prospects of this judgment debt being enforced against you (see Chapter 2.4: Legal services that can help). If you plead or are found guilty, you will have a finding of guilt on your criminal record. (For more information on criminal records, see Chapter 3.9: Understanding criminal records.) Note that although the court might dismiss the charge, if the offence attracts demerit points, these will still be applied if you plead or are found guilty. For more information about appearing in court, see Chapter 1.3: Sentencing in the Magistrates’ Court and Chapter 2.3: Representing yourself in court. Court penalties Sentencing options in the Magistrates’ Court range from imprisonment to unconditional dismissal; for a more detailed discussion of these options, see Chapter 1.3: Sentencing in the Magistrates’ Court. The Magistrates’ Court also has the power to impose a fine that is smaller or larger than the infringement penalty set out in the legislation that created the offence. If there are several offences involved, the magistrate may impose a single penalty covering all the offences. The court can also grant an order allowing you to pay the fine in instalments or giving you extra time to pay. Alternatively, the court may convert the fines to community work. As mentioned in ‘Going to court’, above, having a fine heard before a magistrate in open court can be risky. This is mainly because in open court proceedings, a magistrate may not consider your special circumstances or other forms of hardship before sentencing you. As a result, there is a risk that higher penalties are imposed, or a conviction is recorded against you, or you have to pay court costs. It is important that you seek legal advice before attending any court hearing in relation to infringements (see Chapter 2.4: Legal services that can help). Enforcement warrant hearings (‘section 165 hearings’) If you are arrested under an enforcement warrant for infringement offences and you are not eligible for a community work permit ( CWP ) (see ‘Arrest and community work permits’, above); or you do not consent to a CWP; or you breach a condition of a CWP, you will be brought before the Magistrates’ Court for a hearing. These hearings are often referred to as ‘PEW hearings’ (penalty enforcement warrant hearings), or ‘section 165 hearings’ – this is a reference to section 165 of the FR Act, which sets out the magistrate’s powers in these hearings. During these hearings, there are a range of sentencing options available to a magistrate. The most severe sentencing option is a prison term of one day for each penalty unit that you owe up to a maximum term of 24 months’ imprisonment. However, for the reasons explained below, this outcome is incredibly rare.