Victorian Numbered Acts Victorian Numbered ActsFor section 161A of the Infringements Act 2006 substitute —
(1) A person who is in custody and against whom any infringement warrant is issued may request in writing that the sheriff apply to the Court for an order for the person to serve a term of imprisonment in default of payment of the outstanding fine under the infringement warrant.
(2) The sheriff may apply to the Court for—
(a) a time served order in respect of the person if a non-fine related sentence has been imposed on the person and the person is serving that sentence at the time the sheriff applies to the Court under this subsection; or
(b) an order under section 161C in respect of the person if the person is in custody because of a fine related sentence or a non-fine related sentence at the time the sheriff applies to the Court under this subsection; or
(c) an order referred to in both paragraphs (a) and (b).
(3) An application must not be made in respect of an outstanding fine under an infringement warrant if the time of the alleged commission of the infringement offence is on or after the date that the person to whom the fine relates was taken into custody.
(1) The Court may order that the person who is the subject of an application under section 161A(2) serve a term of imprisonment for a period of one day in respect of each penalty unit, or part of a penalty unit, of the amount of the penalty units which is the equivalent amount of the outstanding fine under any infringement warrant in default of payment of the outstanding fine.
(2) If the Court makes a time served order, the Court must take as time served the period before the sheriff applied under section 161A(2) during which the person was in custody.
(3) The Court may make a time served order whether or not the person—
(a) is brought before the Court; or
(b) has been released from custody after the sheriff applied to the Court under section 161A(2).
(4) If the Court makes a time served order for a part of the amount of the outstanding fine under any infringement warrant, it may make an order under section 161C in respect of any remaining amount.
(1) This section applies—
(a) in respect of a person who is the subject of an application by the sheriff under section 161A(2) and who—
(i) is only in custody because of a fine related sentence; or
(ii) has completed the fine related sentence that the person was serving, on the sheriff applying to the Court; or
(b) if the Court has made a time served order in respect of a person—
(i) who is in custody because of a non-fine related sentence and the term imposed under the time served order exceeds the term of the non-fine related sentence; or
(ii) who has completed a non-fine related sentence and the term imposed under the time served order exceeds the term of that non-fine related sentence.
(2) If the Court is satisfied of a matter specified in subsection (3) in respect of the person, the Court may make an order—
(a) discharging in full any outstanding fine under any infringement warrant; or
(b) discharging in part any outstanding fine under any infringement warrant; or
(c) discharging in part any outstanding fine under an infringement warrant and order that the person be imprisoned for a term fixed in accordance with section 161E(1); or
(d) that is a fine default unpaid community work order under Division 5 of Part 3B of the Sentencing Act 1991 ; or
(e) adjourning the further hearing of the matter for a period of up to 6 months.
(3) For the purposes of subsection (2), the specified matters are—
(a) that the person has a mental or intellectual impairment, disorder, disease or illness; or
(b) without limiting paragraph (a), that special circumstances apply to the person; or
(c) that having regard to the person's situation, imprisonment would be excessive, disproportionate or unduly harsh.
(4) If the Court is not satisfied of a matter specified in subsection (3), the Court may make one or more of the following—
(a) an order that is a fine default unpaid community work order under Division 5 of Part 3B of the Sentencing Act 1991 ;
(b) a time to pay order;
(c) an instalment order;
(d) an order adjourning the hearing or further hearing of the matter for up to 6 months on any terms that it thinks fit;
(e) an order that the person be imprisoned for a term fixed in accordance with section 161E(1).
(5) The Court must not make an order under subsection (2)(c) or (4)(e) if the person satisfies the Court that the person—
(a) did not have the capacity to pay the outstanding fine under any infringement warrant; or
(b) had another reasonable excuse for the non-payment.
(6) The Court must not make an order under subsection (2)(c) or (4)(e) unless it is satisfied that no other order under the relevant subsection is appropriate in all the circumstances of the case.
(1) If the Court makes an order under section 161C(2)(b) discharging in part any outstanding fine under an infringement warrant, the Court, in respect of any outstanding fine under an infringement warrant, may make—
(a) a time to pay order; or
(b) an instalment order.
(2) If the Court makes an order under section 161C(2)(c) or (4)(e) for imprisonment in default of payment of any outstanding fine under any infringement warrant—
(a) a warrant to imprison may be issued under section 68 of the Magistrates' Court Act 1989 ; and
(b) the Court may make an instalment order in respect of the payment of any outstanding fine under any infringement warrant.
Note
A warrant to imprison issued in accordance with subsection (2)(a) may be executed on the contravention of an instalment order made under subsection (2)(b).
(3) If the Court makes an order under section 161C(2)(b) or subsection (1) and the person contravenes the order by failing to pay the undischarged amount of the outstanding fine under any infringement warrant in accordance with the order, the Court may issue a warrant to arrest the person under section 61 of the Magistrates' Court Act 1989 .
(4) If a person is brought before the Court on the execution of a warrant to arrest issued in accordance with subsection (3), the Court may—
(a) confirm any order originally made under section 161C(2)(b) or subsection (1); or
(b) cancel any order originally made under section 161C(2)(b) or subsection (1) and deal with the person as if the person had just been brought before the Court under section 161C(2).
(5) The Court, in determining how to deal with a person under subsection (4), must take into account the extent to which the person has complied with an order made under section 161C(2)(b) or subsection (1).
(1) The term for which a person in default of payment of an amount of the outstanding fine under the infringement warrant may be imprisoned under this Division is one day for each penalty unit or part of a penalty unit then remaining unpaid, with a maximum of 24 months.
(2) A term of imprisonment imposed under a time served order must be served concurrently with the non-fine related sentence imposed on the person before that order is made.
(3) A term of imprisonment imposed under section 161C(2)(c) or (4)(e) on a person must be served cumulatively on a fine related sentence or a non-fine related sentence that the person is serving.
(1) If a person is the subject of an application of the sheriff under section 161A(2) and is released from custody before the application is heard, the person must give the sheriff contact details for the person following release to enable the sheriff to notify the person of—
(a) the relevant details of the application, including when and where it will be heard by the Court; and
(b) if the person fails to appear before the Court, the outcome of the application.
(2) For the purposes of subsection (1), any of the following may be given to the sheriff as contact details—
(a) an email address;
(b) a postal address;
(c) a telephone number.
(1) A person may apply to the Court to vary an instalment order made under section 161D(2)(b).
(2) On an application under subsection (1), the Court may vary the instalment order if satisfied—
(a) that the circumstances of the person have materially altered since the order was made and as a result the person is unable to comply with the order; or
(b) that the circumstances of the person were wrongly stated or were not accurately presented to the Court.
(1) If the Court makes an order under section 161C(4)(e), the person may apply for a rehearing of the matter.
(2) An application under subsection (1) is to be in accordance with the rules of court (if any).
(3) A rehearing may only be sought on the basis that—
(a) at the time of the hearing—
(i) the person had a mental or intellectual impairment, disorder, disease or illness; or
(ii) without limiting subparagraph (i), that special circumstances applied to the person—
and this was not taken into account or was not before the Court at the time of the hearing under section 161C; or
(b) at the time of the hearing under section 161C evidence was not taken into account or before the Court so as to make the decision to imprison the person excessive, disproportionate and unduly harsh.
(4) If a person fails to appear at the time fixed for the rehearing of the matter and the rehearing is struck out, the person may reapply under subsection (1) if the person obtains leave of the Court to reapply.
(5) A warrant to imprison issued in accordance with section 161D(2)(a) that has not been executed in relation to a matter must be—
(a) recalled and cancelled by a registrar of the Court—
(i) on the filing of an application under this section for a rehearing of a matter; or
(ii) on the filing of an application under this section to obtain the leave of the Court; and
(b) reissued on the striking out or refusal of a rehearing or leave by the Court.
(6) The Court must —
(a) stay an instalment order made under section 161D(2)(b)—
(i) on the filing of an application under this section for a rehearing of a matter; or
(ii) on the filing of an application under this section to obtain the leave of the Court; and
(b) lift the stay on the striking out or refusal of a rehearing by the Court.
(1) On rehearing a matter under section 161H, if the Court is satisfied, on the balance of probabilities, that a ground referred to in section 161H(3) has been established the Court may—
(a) cancel the order made under section 161C(4)(e); and
(b) exercise any power available to the Court under section 161C in respect of the person.
(2) If the Court is not satisfied that a ground referred to in section 161H(3) has been established, the Court—
(a) must confirm the order to imprison the person under section 161C(4)(e); and
(b) may—
(i) issue a warrant to imprison the person under section 161D(2)(a) if the person is not in custody; and
(ii) lift a stay on an instalment order (if any) made in respect of the person under section 161D(2)(b).
(3) Subject to section 161H(4), the Court may only rehear a matter once.
(1) A person serving an order of imprisonment under section 161C(4)(e) who makes an application under section 161H may apply to the Court to be granted bail in accordance with the Bail Act 1977 .
(2) On an application for bail under subsection (1), the Court may grant the person bail pending rehearing of the matter.
If a person who is in custody makes an application under section 161H and is granted bail, the order made under section 161C(4)(e) to imprison the person is stayed until the rehearing is determined.".
Division 4—Amendments consequential on commencement of Fines Reform Act 2014