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Infringement Warrants and Enforcement Orders Can Lead to a Term of Imprisonment. What Can You Do to Avoid it?
Traffic infringements are common. And seemingly no big deal. However, many people are surprised to receive an Infringement Warrant/Enforcement Order or, even worse, open the door to the sheriff wanting to clamp their car due to unpaid infringements, which they may know nothing about.
The problem is, without the proper course of action to deal with and infringement warrant or enforcemnt order, the result could mean term of immediate imprisonment.
It all begins with an infringement notice and without any action, can escalate from there.
Following are the steps that may lead from a simple infringement to a more serious matter.
1. Infringement Notice
The infringement notice will be the first notice you receive to advise you that you have been in breach of a matter, which can include speeding or red light camera fines issued by Victoria Police; local council or agencies may issue an infringement regarding unpaid ticket (parking or the like); you may receive a fine from Civic Compliance in relation to use of the tolls without a valid e-tag, for example; or you may have travelled on public transport without a valid ticket. At this early stage, your best option is to pay the fine by the due date to avoid additional charges, request an extension of time or nominate another driver (if applicable). If either of these two options are not undertaken or you never receive the infringement notice then the matter is taken to the next stage. It is only when no action is taken from this early stage because the infringement was never received, that revocation can be applied for.
If a person has knowledge of the infringement or has opted for payment plans or called the relevant agency to negotiate, their application for revocation will not be successful once it reaches the Magistrates Court.
2. Enforcement Orders
Once the infringement reaches the stage of an enforcement order, the amount payable will increase by a third. This increase covers any administrative charges incurred as a result of not having paid the infringement. At this point you may contact the Infringements Court to make application for a payment plan, which may or may not be granted.
3. Infringement Warrant
If you have been issued an infringement warrant, the amount of the fine will have escalated to 3 times the original amount, this is again to cover further administrative costs. If you do not pay the amount on the Infringement Warrant Notice, the Sheriff has the authority to find you and request a deposit towards your infringements. This is generally around 10% of the outstanding amount. You will have 7 days to pay the outstanding amount.
If this deposit is not paid, the Sheriff also has the authority to clamp vehicle involved in the infringements or seize your personal property. The Sheriff can then arrest and bail you (on the spot). The Sheriff has the authority to clamp your vehicle, sell the car or seize your personal property. Once you have been arrested and bailed, the matter will be sent to the Magistrates Court and the Sheriff will advise you of the court date at which you must appear.
You must be aware that if the Infringements Court does grant your application for a payment plan and you default, at any stage, on the agreed payments, the payment plan will be cancelled immediately and you must pay the entire amount that you owe at that point.
Now, this is the point at which many people get stuck. Once a default occurs, an Infringement Warrant Notice is issued and the matter is then referred to the Sheriff’s office. This is discussed in more detail further below.
Another option at this point is to complete a Revocation Application to nominate another driver, nominate another owner or indicate that you were the driver but there were special circumstances.
If you do apply for special circumstances, you will need to provide documentation that supports your claim with the application. Your best chance here is to instruct a lawyer to help you with this to ensure all relevant materials are provided and criteria is met correctly in the Revocation Application.
The Infringements Court will accept the application for consideration and may ask for more information.
The Court may grant revocation for the infringements or refuse the application. In this case, the matter may be remitted to the Magistrates Court for a hearing.
If the application is refused and within 42 days of the refusal letter you submit an objection the matter will be remitted to the Magistrates Court for hearing. This begins the process of an appeal against revocation refusal.The first stage in this appeal is to present to the Court reasons why fines were never paid.
NOTE: As per above, if you have contacted Civic Compliance or the particular agency to arrange a payment plans, you cannot be successful. The first stage will only be granted if you have never received the initial fines.
If you can satisfy the Court that the original fines were never received nor actioned, then your appeal will be allowed.
You may opt to plead guilty or not guilty to the infringement charges against you.A guilty plea will require you to account your personal circumstances to the Magistrate or Judicial Registrar and put into context what was happening in your life at the time the fines were incurred . A penalty will be imposed, which is likely to be a good behaviour bond or a fine. If your matter pertains to toll infringements, it is stated by law that a $40 fee be imposed for each toll offence. Thais cannot be waived at the Magistrate has no discretion regarding this.
If you choose to plead not guilty to the infringements charges, the case will be adjourned for a contested hearing.
4. Magistrates Court Hearing
The final stage, following Infringement Warrant, is the Magistrates Court hearing. Section 160 of the Infringements Act 2006 outlines the law on infringements, and the power the Court has with regards to an infringements matter. If, by this stage, you haven’t instructed a lawyer, this would be the time to do so. Without a lawyer, to present your case, the Magistrate has the power to impose an immediate term of imprisonment for a period that equates to the value of the infringements.
Our lawyers are experienced in handling these matters and have successfully represented many clients at Court. Our aim is to avoid a prison term and help our clients have their outstanding fines dismissed or reduced significantly prior to a payment plan being entered into.
You must note, once a payment plan has been agreed upon with the Magistrate, the Magistrate must make an imprisonment in lieu order. This order deems that if you default at any time on the payment plan, a warrant will be issued. You will be arrested by the Sheriff and you will serve time in custody, according to the amount of outstanding fines. There is no discretion, no leniency and nothing that the Magistrate can do beyond this point. There are also no options to appeal.
What you can do, is pre-empt a default.
If you anticipate that you will not ne able to afford a future payment, then a special mention is to be listed before the same Magistrate who placed you on the payment plan. You can then apply to that Magistrate to vary the order to permit a period of time get back on track with the payment plan.
For example, if you appeared at Sunshine Magistrates Court and were placed on a payment plan, then after a period of time making regular payment, you foresee that you will default as you are short on funds, then you must list a special mention for an application to vary, before that same Magistrate. Even if the Magistrate has moved to a different Court, the matter must still be listed at the same Court as it was originally heard.
You may avoid imprisonment by applying for variation, but ONLY if you pre-empt the default.
If you do not pre-empt the default and you fail to pay, once the Sheriff knocks on your door, it will be too late.
Of course, the earlier you speak to a lawyer, the better chance you have of revoking the infringements and avoiding a prison term.