The time served scheme: An overview
If you are serving a prison sentence, you can apply for your fines that are registered with Fines Victoria or court fines that are registered with Fines Victoria to be converted to run concurrently with your existing sentence (see ‘Other factors that can affect a sentence’ in Sentences).
Fines will be resolved through the Time Served Scheme at the rate of one penalty unit per day in prison. The amount waived cannot exceed the equivalent of 24 months in custody. Fees and charges added to fines can also be waived through the Time Served Scheme. Applications to the Time Served Scheme must be made in writing. Note that as there is a small risk of further time in prison, you should seek legal advice before applying to this scheme.
The time served scheme: Who can apply?
If you are in prison and have been sentenced, you must make an application while you are in prison.
If you have been released from prison because:
- your charges against you were withdrawn; or
- you were only sentenced to time served (i.e. time served on remand); or
- you were not sentenced to a term of imprisonment; or
- you were found not guilty,
then you have six months from the date you were released from custody to apply to the Time Served Scheme. You can apply online: https://online.fines.vic.gov.au/Support/prison-program.
Court fines from the Supreme Court cannot be dealt with through the Time Served Scheme.
The time served scheme and the Director of Fines Victoria
Once you have applied to the Time Served Scheme, the Director of Fines Victoria must determine whether they can administratively waive your fines or whether they must apply to a court.
When must the Director of Fines Victoria apply to a court?
The Director of Fines Victoria must apply to the relevant court seeking an order that fines be waived if the person:
- is only in custody because of a fine related sentence; or
- has a fine debt is larger than their time in prison (including time spent on remand) (this is based on a calculation of one penalty unit per day in prison); this is referred to as an ‘excess’.
When calculating the fine debt to determine if there is an excess, the fine debt does not include any additional fees that have been added (e.g. administrative fees added by Fines Victoria).
The Director of Fines Victoria must apply to the relevant court (e.g. they must apply to the Magistrates’ Court if the fines were imposed by the Magistrates’ Court, and to the County Court if the fines were imposed by the County Court).
When can the Director of Fines Victoria waive fines?
If the Director of Fines Victoria is not required to apply to a court, then they must administratively waive the fines.
The time served scheme: What can a court order?
A court can make a ‘time served order’ that waives a person’s fines debt at a rate equivalent to how much time they have spent in custody for a non-fine related sentence. The time served order can include time spent on remand and time spent in prison after the person was sentenced. A time served order must be served concurrently with any non-fine related sentence. Any remaining fine debt will be dealt with by the court under a s 171C order.
A court can make a range of orders in relation to an excess or where the person is only serving a fine-related sentence; these orders include:
- fully or partially discharging an infringement or court fine;
- a time to pay order;
- an order for the person to pay in instalments;
- a community work order;
- an order adjourning the hearing or further hearing for up to six months;
- an order for imprisonment.
The Fines Reform Act 2014 (Vic) (‘FR Act’) includes protections that prevent the court from making an order for further imprisonment where:
- the person has a mental or intellectual impairment, disorder, disease or illness;
- the person has special circumstances;
- having regard to the person’s situation, imprisonment would be excessive, disproportionate or unduly harsh.
The FR Act also prevents a court from making an order for further imprisonment if the court is satisfied that:
- the person did not have capacity to pay the fine; or
- the person had another reasonable excuse for not paying the fine.
A court also cannot make an order for imprisonment unless it is satisfied that no other order or relevant subsection is appropriate in all the circumstances of the case. The orders that are available depend on the person’s circumstances