Case Note – Magistrates have a duty to inquire before sentencing people to prison for unpaid fines
Victoria Police Toll Enforcement and Victoria Police Infringement and Department of Transport v Taha and Broadmeadows Magistrates' Court and Victorian Equal Opportunity and Human Rights Commission (Taha)
State of Victoria v Brookes and Magistrates' Court of Victoria (Brookes) Nettle, Tate and Osborn JJA
[2013] VSCA 37 4 March 2013
Summary
The Justice Connect Homeless Law regularly assists clients facing imprisonment
for unpaid fines.
Clients who are arrested under an infringement warrant and brought before the Magistrates’ Court
are sentenced under section 160 of the Infringements Act 2006 (Vic) (Infringements Act). A
common sentence is an order for imprisonment in default of payment of outstanding fines,
combined with an instalment order. Often called ‘imprisonment in lieu orders’, these orders mean
that if the client defaults on their repayment plan, a warrant to imprison will be issued. The client
will not be brought back before the court before prison and, because sentencing under section 160
of the Infringements Act is not a ‘criminal proceeding’, there is no mechanism for appeal.
Both Zakaria Taha and Tarni Brookes had been sentenced to imprisonment in default of payment
under section 160 of the Infringements Act. In the absence of a right of appeal, Victoria Legal Aid
applied for judicial review of the Magistrates’ sentencing decisions. The Supreme Court quashed
the Magistrates’ Court orders, finding that the Magistrates had made a jurisdictional error by failing
to (i) make inquiries about Mr Taha and Ms Brookes’s circumstances and (ii) consider the less
punitive sentencing options under section 160 of the Infringements Act.
Victoria Police Toll Enforcement, Victoria Police Infringement, Department of Transport and the
State of Victoria appealed the decision of the Supreme Court. On 4 March 2013, the Court of
Appeal dismissed the appeal.
The unanimous judgment of Taha & Brookes provides that Magistrates sentencing clients under
section 160 of the Infringements Act have a duty to make reasonable inquiries about the client’s
circumstances, for example, mental illness, homelessness or substance dependence, and to consider
alternative sentences (such as discharge or reduction of the outstanding amount) before making
imprisonment orders.
Justice Connect Homeless Law is optimistic that this duty will mean that fewer disadvantaged clients are jailed for
unpaid fines. The decision also has the potential to relieve the burden on legal services that have
been providing free legal assistance to clients with warrants to imprison.
Background
Mr Taha and Ms Brookes had each incurred numerous infringement notices. Mr Taha had been issued with
30 infringement notices for minor offences, including riding a bike without a helmet and public transport
offences. The total infringements and fees were $11,250.20. Ms Brookes had incurred about 70
infringements primarily for driving offences, including travelling on a toll road without being registered for
the toll road. The total infringements and fees were $15,164.50. Ms Brookes indicated that many of the
offences had been committed by her violent ex-partner.
Mr Taha had an intellectual disability and Ms Brookes was a victim of domestic violence, which had a
damaging impact on her mental health, including causing Post Traumatic Stress Disorder.
Their outstanding fines meant that they both were caught in the highly automated process of enforcement
established under the Infringements Act.
At the end of this process, if an infringement remains unpaid and a warrant is issued, the person can be
arrested and brought before the court for sentencing under section 160 of the Infringements Act.
Subsection 160(1) provides that the Court can imprison an offender for a period of one day per penalty unit
outstanding (currently, one day per $140.84 owing). This is often exercised in conjunction with subsection
160(4), which permits the Court to order the offender pay the total amount of outstanding fine(s) under an
instalment plan. The two powers work in tandem so that if an offender defaults on their instalment plan, they
will be imprisoned. This is the order that both Mr Taha and Ms Brookes received from the Court.
However, subsections 160(2) and (3) give the Court jurisdiction to do a number of things as an alternative to
ordering imprisonment. If the Court is satisfied that:
- the offender has a mental or intellectual impairment, disorder, disease or illness; or
- ‘special circumstances’ apply to the offender (which include mental illness, homelessness and/or
substance dependence that result in the offender being unable to control their conduct or
understand their conduct constitutes an offence); or
- imprisonment of the offender would be excessive, disproportionate and unduly harsh,then the Court has discretion to:
- discharge the outstanding fines in full;
- discharge up to two thirds of the outstanding fines;
- discharge up to two thirds of the outstanding fines, order a repayment plan and imprisonment in
default of payment;
- adjourn the further hearing of the matter for a period of up to 6 months; or
- order that the offender undertake unpaid community work.
In Mr Taha's and Ms Brookes's cases, the Court did not exercise their powers in subsections (2) or (3)
because evidence about these matters was not before it. Mr Taha did not inform his Victoria Legal Aid
(VLA) duty lawyer that he suffered from an intellectual disability. Ms Brookes informed her lawyer through
the door of a prison cell. The lawyer relayed her circumstances to the Court, however, the Magistrate
required written evidence establishing her circumstances. Because Ms Brookes was anxious to return home
to her three children, she instructed her lawyer to finalise the case without the written evidence. Orders for
repayment and imprisonment in default of payment (under subsections (1) and (4)) were consequently made
for both Ms Brookes and Mr Taha.
VLA applied for judicial review of the Magistrates’ Court orders. VLA succeeded – the Supreme Court
quashed the imprisonment orders because the Court failed to make inquiries about Mr Taha and Ms
Brookes’s circumstances and failed to consider alternatives to imprisonment.
The cases were then brought to the Court of Appeal. At issue was the precise interpretation of section 160 of
the Infringements Act, and how the Court should administer their powers in accordance with it.
Findings
Nettle, Tate and Osborn JJA dismissed the appeals in three separate judgments. The common findings in all
judgments are as follows:
- Section 160 has to be read in a unified fashion. They are a set of options. Therefore, before
making an imprisonment order under subsection (1), the Court is required to consider the
availability of ‘less draconian’ orders under subsections (2) and (3).
- In order to satisfy itself as to which option should be ordered, the Court has a duty to inquire into
the circumstances of the infringement offender.
- How the Court exercises its duty to inquire depends on all the circumstances. There will be 'flags'
which indicate to the Court what inquiries need to be made (in the case of Mr Taha, these ‘flags’
were identified as including: Mr Taha had accumulated a large number of fines over a long period
for repeated offences of the same kind; the amount owing was significant; and the court placed
Mr Taha on an instalment plan, so it must have inquired about his ability to meet payments and
minimal questioning would have identified that his source of income was a Disability Support
Pension). If the offender is represented by a lawyer, it does not necessarily follow that the Court
does not need to inquire.
- If the Court's inquiry reveals that further evidence of the offender's circumstances is needed, the
Court should take steps to make sure that it is received. The Court could receive that evidence
orally or adjourn the hearing to allow written evidence to be obtained. Ms Brookes's case should
have been adjourned.
Each finding is explained below.
Section 160 as a set of options
Subsections 160 (1), (2) and (3) had to be understood as a set of options because the interpretive obligation
in section 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) and the
principle of legality required it. Imprisonment in subsection (1) is a discretionary power, but there are no
factors that guide the Court as to when the discretion should be exercised. Therefore, the circumstances that
enliven the powers to order lesser sentences in subsections (2) and (3) should guide the Court as to whether
imprisonment in subsection (1) should be ordered. There is not, as the appellants put it, an onus on the
offender to lead evidence to 'bring themselves in' to subsections (2) and (3) before the Court can make orders
under those subsections.
The Court preferred this interpretation because it gave effect to the rights set down in the Charter to liberty
(section 21), a fair hearing (section 24(1)) and equality before the law (section 8(3)).
The duty to inquire
Given the informal nature of a section 160 hearing, and the finding that it is to be understood as a set of
options, the Court has a duty to make inquiries of the offender to satisfy itself as to which option should be
ordered. In a section 160 hearing, the presiding Magistrate is given little documentation to enable the Court
to understand the nature of the case. There is no prosecutor, no disclosure regime and no power to appeal or
rehear the final order made. For the Court of Appeal, this suggested that the Magistrate could not rely on the
features of an adversarial hearing to enable all matters to be put before it. Rather, it is incumbent upon the
Magistrate to make inquiries to ascertain all relevant information.
The Court of Appeal expressed two different opinions as to how the duty to inquire operates. For Nettle JA,
the duty does not need to be exercised in all cases – for example, if the offender is represented by Senior
Counsel, the Magistrate could safely proceed assuming that all matters would be put before the Court. If
they were unrepresented or had limited representation, the inquiry duty would be engaged.
For Tate JA (Osborn JA agreeing), the extent of the duty to inquire depends upon all circumstances.
However, and unlike Nettle JA's opinion, it must be exercised in all cases. This is because the offender's
circumstances may impact upon their capacity to give instructions to their lawyer. This is precisely what
happened in both cases – Mr Taha's disability meant that he did not instruct his lawyer about his
circumstances, and Ms Brookes's anxiety to return to her children meant that she instructed her lawyer in a
way that was prejudicial to her case.
The need for evidence and the duty to inquire
Consistent with the duty to inquire, the Court must ensure that the offender has an opportunity to provide
evidence that could establish that they have circumstances relevant to subsections (2) or (3). This could be
done through oral evidence, or if required, after an adjournment to allow written evidence to be obtained.
In Ms Brookes's case, Nettle and Osborn JJA held that the Magistrate was entitled to require written
evidence. However, the Magistrate should have adjourned her matter to enable written evidence to be
obtained. Tate JA agreed that an adjournment was necessary, but disagreed that the Magistrate was entitled
to require written evidence, finding that there is no legislative basis to impose this requirement.
Ms Brookes’s instructions to her lawyer to proceed without written evidence
Ms Brookes's lawyer relayed her circumstances relevant to subsections (2) and (3) to the Court (including
that she was a victim of domestic violence and suffered ongoing mental health problems). The Magistrate
requested written evidence. Ms Brookes instructed her lawyer to proceed without it.
Regarding the question of whether or not the Magistrate could rely solely on the instructions Ms Brookes
gave her lawyer, the Court of Appeal noted that Ms Brookes was suffering ongoing depression and anxiety.
At the time she saw her lawyer, she had been arrested, taken from her children and strip searched. These
circumstances meant that her capacity to give instructions was compromised. Whatever her instructions
were, the Magistrate should have investigated these issues and adopted a procedure that recognised that her
mental illness might have affected her capacity to give instructions. If this was done, it would have become
evident that an adjournment was required (as discussed above).
Implications for practitioners
The Court of Appeal's judgment is a very welcome development. The findings are consistent with the
safeguards within the Infringements Act that are designed to protect vulnerable people being caught up in the
infringements system. They also align with the policy intention of using imprisonment for outstanding fines
only as a last resort. Following the ruling, practitioners representing clients in section 160 hearings should
expect that their client's case will be adequately explored by the Court, as it is now obliged to inquire
whether the circumstances in subsections (2) or (3) are relevant or not.
Accordingly, practitioners should:
- expect a more inquisitorial hearing from the Court;
- ensure that they have properly considered how subsections (2) and (3) apply to their client;
- prepare submissions for the Court in relation to subsections (2) and (3);
- if documentary evidence is not available:
- consider the possibility of leading oral evidence from their client or from over the bar
table; and
- discuss with the Court whether written evidence will be needed to assist with their
inquiry; and
- if the Court requires documentary evidence, request an adjournment for their client to assist the
Court to conduct their inquiries.
Leigh Howard is a lawyer at Clayton Utz and a Justice Connect Homeless Law Team Leader.