The Law Handbook 2024

Chapter 3.1: Fines and infringements 123 they are satisfied that no other order is appropriate considering all of the circumstances. These conditions also apply to imprisonment in lieu orders. During section 165 hearings, the court has an obligation to proactively enquire into your circumstances and determine if you have special circumstances. This is regardless of whether you or your lawyers specifically tell the court that you have special circumstances (see Victorian Police Toll Enforcement v Taha ; Victoria v Brookes [2013] VSCA 37). If you are sentenced to an instalment order and you cannot keep up with the repayments, you can apply to the court for a variation of the instalment order. This can only occur if: • your circumstances have materially changed since the instalment order was made and you cannot keep up with the payments; or • your circumstances were not accurately presented to the court when the instalment order was made. If you do not comply with an instalment order, or a time to pay order, or a community work order, the court can issue a warrant to arrest you and bring you back before court. At this hearing, the court can confirm the original instalment order or time to pay order or can consider the matter afresh and impose any of the other orders discussed above, noting again that imprisonment must always be a last resort. If you are sentenced to imprisonment or an imprisonment in lieu order and none of your fines are discharged, you may be able to apply for a rehearing in limited circumstances. You can apply to the court for a rehearing on the basis that: • your special circumstances, mental illness or intellectual impairment were not taken into account by the court or were not presented to the court at the time of the section 165 hearing; or • evidence was not taken into account by, or presented to, the court that imprisonment is excessive, disproportionate or unduly harsh at the time of the section 165 hearing. An application for a rehearing can be lodged at any stage after the initial hearing, even if you have defaulted on a payment plan or have been taken into custody. The court only rehears the matter once, so it is essential that you obtain legal advice and ideally legal representation before a rehearing. It is advisable to request an adjournment if you In these hearings, if the court is satisfied that: • you have a mental or intellectual impairment, disorder, disease or illness; • you have special circumstances; • considering your situation, imprisonment would be excessive, disproportionate or unduly harsh; or • you are a victim of family violence that substantially contributed to you being unable to control the conduct that constituted an offence, then a court can: • discharge your fines in full; • discharge part of your fines and make an order giving you time to pay the outstanding amount, or make an instalment order with a warrant to arrest if the order is breached; • discharge part of the fines and order imprisonment for a maximum of 24 months, subject to time to pay or an instalment order (also called an imprisonment in lieu (i.e. instead of) order – if you default on the order, a warrant to imprison you can be issued); • make a fine default unpaid community work order; or • adjourn the matter for up to six months. If the court is not satisfied of one of the matters above, it can make any of the following orders: • a fine default unpaid community work order (one hour for each penalty unit of fines up to 500 hours); or • an order giving you time to pay your fines; or • an order that you pay your fines in instalments; or • an order adjourning the proceeding for six months; or • an imprisonment order of one day for each penalty unit, to a maximum of 24 months (including an imprisonment in lieu order, which is an instalment order where if you default, a warrant to imprison you can be issued). While imprisonment is theoretically possible, the FR Act specifically forbids the court from imposing a term of imprisonment if the reason you have not paid your fines is because you do not have capacity to pay, or you have some other reasonable excuse for non-payment. The FR Act also specifically prohibits a magistrate from making an order of imprisonment unless