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. . What
is a fine? Australian
laws allow governments, government
agencies and some non-government
agencies to issue fine or infringement
notices in respect of offences that
might otherwise be prosecuted through
the courts. The fine system is intended
to remove a large number of minor
offences from the criminal courts. Just
because they are removed from the
criminal courts does not mean they are
no longer criminal offences. If you
object to a fine you will be prosecuted
in a criminal court. Usually the fine
can be issued on-the-spot or sent to
the offender by post. Sometimes private
organisations (e.g. Australian Football
League) have a system of fines that are
imposed on employees or members. These
are part of a private contract and have
nothing to do with criminal
offences. Types
of fines A
Traffic Infringement Notice
("TIN") is usually seen as the
red "on-the-spot" fine handed to a
driver following a traffic offence,
(speeding and other traffic offence).
Certain TINs are issued to owners of
motor vehicles by post: e.g. red-light
camera fines, speed camera fines,
tollway fines. Parking Infringement
Notices ("PIN") are in the same
category, as are a host of other
infringement notices that are issued
under a wide variety of legislation
(Litter Act, Marine Act, Fisheries Act,
EPA Act, etc). Then there are
Penalty Notices which are issued
in respect of business related
offences, such as breach of liquor
licence conditions. Consequences
of paying a fine. There
are two types of infringement notices
in motor traffic cases. Each have
different consequences. If
you pay an infringement notice that
does not carry any licence loss period
(e.g. fail to wear seat belt) no
conviction will be recorded against
you. You may incurr demerit points, but
no record will be made on your criminal
or traffic history. If
you pay an infringement that carries
licence loss (e.g. exceeding speed
limit by more than 25kmh) a conviction
will be recorded on your traffic
history for that offence. The
conviction will remain on your record
for eternity. Technically, your traffic
history is a subset of your criminal
history because all traffic offences
are criminal offences.
If you
pay
the fine (payment instructions are on
the TIN) this will bring an end to the
matter. You are admitting guilt and
accepting the penalty. No further steps
can be taken. Many TINs carry loss of
demerit
points
or licence loss which must be incurred
following payment. You can not unpay
the fine if you later regret incurring
all those demerit points or losing your
licence. If your
spouse/mother/boyfriend pays your fines
even though you intended to challenge
the fine or nominate the driver, might
be difficult to undo what has been done
and you should get legal advice. If you
fail to pay the fine, you will be sent
reminders and you can pay the penalty
when you get the reminders although
extra charges will accrue. Courtesy
Letter & Enforcement
Orders If
a TIN or PIN remains unpaid after 28
days, a courtesy letter will issue. For
offences that do not result in licence
loss, you have two alternatives when
you get a courtesy letter. You can pay
the penalty, or object to the fine -
see the section on objecting below. If
you pay the amount on the courtesy
letter that finishes the
matter. If
you ignore the courtesy letter an
enforcement order will be made against
you by the Infringements
Court.
If that order remains unpaid a
warrant to enforce the order
will be issued by the Infringements
Court directing the sheriff to recover
the debt.
How
to object to an infringement
notice A
driver or owner who wants to dispute an
infringement offence in court can
object to a an infringement by lodging
a notice of objection or an election to
go to court. It is by objecting that
the driver takes issue with the matters
alleged in the notice, or requires the
prosecution to prove that the driver is
guilty of an offence. The consequence
of objecting is that the matter will go
to court: see the page about
defending
cases in court.
The time for objecting is set out in
the next paragraph. The best way to
object is to complete the reverse of
the fine or the courtesy letter
(whichever is applicable) by providing
your name, signature and any other
information requested. Make a copy of
the notice of objection, send either
the original or the copy to Civic
Compliance at the address shown on the
notice, and make a diary note of the
time, date and place where you posted
the objection or when you
hand-delivered it. After a couple of
months you will receive court papers.
You should then seek
legal advice.
There are two different types of
infringements which have different
rules for lodging an
objection. A.
Drink driving and excessive speed
infringements the time for
objecting is within 28 days of the date
of the Traffic Infringement Notice
(TIN). Late objections are usually not possible. This paragraph applies only to
drink driving infringements and to
speeding fines that impose licence loss
or 4 or more demerit points. A notice
of objection can be found on the
reverse of the TIN. To properly
complete the objection form you need to
print your name, sign your name and
cross out the words "do
not intend". It is not necessary
to have a conference before lodging an
objection unless you wish to discuss
matters before making this election. It
is best to have some evidence that you
posted the objection within time so
make a dairy note and keep copies of
the objection notice. An objection
notice for is usually found on the
reverse of the TIN. It is not essential
to use their form. You can simply write
a letter provided it complies with
s.89A Road Safety Act. See the
paragraphs on drink driving and
speeding fines below for more detail on
those types of licence loss
infringement notices. B.
For TINs and PINs other than drink
driving and Excessive Speeding
fines, (i.e. all fines that carry
0, 1, 2, or 3 demerit points, but not
including drink driving infringements)
the legislation now allows you to elect
to take the matter to court as soon as
you receive the infringement, or you
can wait until you get the reminder
notice. An form for lodging an election
to go to court is printed on the
reverse of the infringement notice and
the reverse of the reminder letter. It
is usually better to wait for the
reminder letter and then elect to take
the matter to court. The deadline
for taking the matter to court is 28
days after the date of the reminder
letter. Extension
of Time for objecting For
licence loss offences, 28 days after
the date of the infringement notice
your licence will be suspended or
cancelled. It is then too late to
object to the fine or save your
licence. If you write a letter
regarding the circumstances of the
offence, this does not extend time for
objecting to the infringement notice.
So you can either write feeble letters
or lodge an objection within time. Do
not attempt to do both. Normally you
can not get an extension of time within
which to object to this type of fine,
so you need to make your decision
within the 28 days allowed by the
legislation. However, if your licence
has been suspended or cancelled by an
infringement notice that was sent to
you in the mail, and you did not become
aware of the notice until after the 28
day period had elapsed, then you are
entitled to apply for an extension of
time within which to object to the
fine. The application needs to be made
to a Magistrate so you should seek
legal advice if you wish to get an
extension of time for objecting to a
licence loss infringement
notice. For
infringement notices which do not
result in licence loss, you can lodge
an objection anytime prior to an
enforcement order being made against
you by the Infringements Court. You do
not need to ask for an extension of
time to object. You simply send in your
objection. If the objection is refused
because an enforcement order has
already been made, then you will need
to make application to the court to set
aside the enforcement order (see
below), and then have the case referred
to court. Consequences
of electing to go to
court. For
infringement notice that do not carry
licence loss, you can elect to have the
infringement offence heard in a court.
What usually happens after sending in
your election is you receive a letter
telling that the infringement notice
has been withdrawn. Once the
infringement notice has been withdrawn,
no demerit points will be recorded and
the fine is not payable. A few months
later court papers will arrive, usually
by mail. Once you have court papers it
is a good time to seek legal
advice. Consequences
of objecting to a licence loss
infringement notice. For
an infringement notice that imposes
licence loss, objecting to the notice
will cancel the infringement
notice. A cancelled TIN can not
suspend or cancel a person's drivers
licence. The penalty can not be
enforced and no demerit points can be
incurred. The agency who gave you the
TIN is then left with only one option
if they want to prosecute you for the
offence. They have to serve you with a
charge and summons to go to court. At
court, the TIN is irrelevant to the
prosecution case and is generally
irrelevant to your defence because it
has been cancelled. After lodging an
objection you can continue driving
until a court finds you guilty. After
you lodge an objection, the police will
write to you and confirm receipt.
Usually you will receive a charge and
summons in the mail about two months
after lodging an objection. They are
allowed to take up to a year to
prosecute you. Once you get the court
papers you should seek legal advice
about defending the
charge. Should
I object to the infringement
notice? If
your licence is at risk and that is a
problem for you, then yes you
should take the infringement to
court. Some people don't want to take their
infringement to court unless they know
they have a good chance of
winning. Unfortunately, in 99% of
cases it is impossible for anyone to
determine whether you have a good
chance of winning until you have a
charge and summons and a brief of
evidence. You get that only after you
take your infringement to court.
After you have referred your case to
court you can ask your lawyer whether
it is worth pursuing. If you are
thinking of emailing me a long story to
ask whether you should take it to
court, don't bother. The answer is
"Yes". If you take the matter to court and are found
guilty or plead guilty, it is rare (but not impossible) for the court
to impose a period of licence loss that is greater than the mandatory
minimum period that was on the infringement notice. The most likely
downside is having to pay court costs of $40.00, as well as taking
a day off work and incuring your own legal fees (if any). Revoking
an Enforcement Order There
is another way you can have a matter
referred to a court for determination.
If you failed to pay the fine, and
ignored the courtesy letter that
followed it, you may find that the
Infringements
Court
makes an enforcement order against you
in respect of a financial penalty. It
is possible to have this order set
aside by contacting the
Infringements
Court and making an application to the
registrar to revoke the order. You will
have to state your reasons in a
statutory declaration. If the order is
revoked, the alleged offence is
referred to the Magistrates Court for
determination. You will then have a normal
court hearing where the police or other
enforcement authority will be required
to prove the offence (unless by some
miracle they choose to withdraw the
charge) and you will have an
opportunity to defend the allegations,
and you also have a chance to seek a
reduced sentence if you are guilty. No
charge and summons is issued or served.
In this case no notice of objection has
been sent canceling the TIN. Rather,
the TIN is treated as if it is the
charge and summons.
It is arguable that this process could
be used in respect of the financial
penalty componant of a licence loss
infringement, but it can not be used to
reverse a licence suspension or
cancellation imposed by a TIN. See
Infringements
Court. Defective
Infringement Notices It
is possible for an infringement notice
to have a serious defect that renders
it invalid. Legislation sets out what
information an infringement notice must
contain, although infringement notices
also contain a lot of additional
information that is not required by the
legislation and therefore is not
essential. If
essential sections of the infringement
notice are left blank or are
meaningless, such as the date of the
offence, the date of the notice, the
alleged speed or BAC, a signature, etc,
then the fine may be defective
to the point that it is invalid. (See
DPP
v. Korybutiak
as
an example of a case run on this type
of point). If your infringement notice
is defective and you want to avoid
licence loss, you should seek legal
advice to ensure you take the correct
steps to protect you from licence loss.
Calling the police or civic compliance
within 12 months of the date of offence
to boast or complain that they made a
mistake on the fine, or objecting to
the fine, will result in a corrected
infringement notice being sent to you
in the mail - or a charge and summons
being served - which will resolve the
issue. If
you have a defective fine that is not
going to award you either demerit
points or licence loss then it would
probably be easier just to pay it.
Fighting a fine just to avoid the
financial penalty will always cost you
more than the amount due on the fine.
The only advantage to you in
complaining about a defect in any
infringment notice is that you may gain
a bit more time while they write a new
fine and send it to you. Usually that
is no real gain at all. Not
every mistake in the infringement
notice will render it invalid, but if
some essential ingredient in the notice
is either missing or incorrect then the
notice may be invalid and you may be
advised not to object to an invalid
notice. An invalid infringement notice
should be ignored if you want to rely
on the defect. The
infringement notice will not be invalid
just because it has your car's colour
wrong, has a spelling mistake or typo,
or because you disagree with any
allegation or information stated in
it. The top section of the fine
has information which identifies the
driver (name, address, licence number,
date of birth, car rego, colour etc).
This enables VicRoads to identify which
licence or rego to suspend or to record
demerit points. An error here is very
unlikely to prevent them correctly
identifying the driver and recording
demerit points against him or
her. If
you want to know if your infringement
notice is valid, send a copy to me
attached to a cheque, money order or
credit card authorisation for $65.00
and I will telephone or email you
within a day or two with my opinion. If
it is not worth $65.00 to you then you
will understand why it is not worth my
while to receive emails or phone calls
on this point. Can
I ask the police to withdraw a
fine? The officer who issued the fine has
no authority to withdraw it, so do not
waste your time writing to him or her.
The Victoria Police have a Traffic
Camera Office section inside Civic
Compliance Victoria. Part of the
Traffic Camera Office is the Penalty
Review Board (PRB). This section deals
with people's complaints about
infringement notices. It is possible to
write to the PRB and plead
exceptional circumstances if you
qualify, else seek
a review of a fine and beg for a
waiver provided it does not carry
mandatory licence loss. The PRB has authority to withdraw
the fine. In practice the PRB does not
usually withdraw fines. Their primary
purpose appears to be to check fines to
see if they are valid and they will
verify that an offence has occurred. If
a fine has any errors, they will
correct the errors (i.e. wrong date,
wrong penalty etc) and reissue the fine
to you. If you then take the matter to
court, your letter will become evidence
against you and will invariably be
detrimental to your case if you want to
take the matter to court. If you think
you will take the matter to court if
the PRB rejects your request, then it
would be very foolish to write to the
PRB at all. Your letter will always
disadvantage you at court. Just lodge
an objection to the fine and save your
story for your lawyer or the
Magistrate. So you have a choice - take
it to court or write to the PRB. Do not
attempt to do both. If you are sure you
will never take the matter to court,
then there is nothing to lose by
writing to the PRB. Good Luck! The
address of the Penalty Review Board is:
Civic Compliance, Level 1, 377 William
Street, Melbourne 3000. The Penalty Review Board has power
to withdraw
fines and issue warnings for full
licence holders who have had no
offences in the past 3 years and have
been fined for doing less than 10kmh
over the speed limit. Apparantly if you
are a good driver you can get a bit of
leniency. If you think you qualify,
send them a "without prejudice" letter
asking for a warning instead of a fine
and hope for the best. Owner-Onus
offences (traffic camera
offences) If
you are the registered owner of a
vehicle and receive a traffic camera
infringement notice, CityLink fine or
parking fine and you were not the
driver of your vehicle at the time of
the offence, you can nominate the
person who was responsible for the
vehicle at the time of the offence. If
the owner makes a "user statement",
then the owner can not be found guilty
of the traffic offence. A user
statement is a statement in writing
which nominates the person who was
responsible for the vehicle at the time
of the offence ("known user
statement"), or states why the owner is
unable to nominate the person
responsible ("unknown user statement"),
or states that the vehicle has been
sold ("sold user statement"), or states
that the vehicle or the number plates
where stolen at the time of the offence
("illegal user statement"). If the user
statement is accepted by the police,
the enforcement agency will then
withdraw the fine, and issue a fresh
infringement notice to the nominated
person. If an owner wishes to make a
user statement, then it needs to be
made prior to any enforcement order
being made in respect of the fine
(usually about 10 weeks from the date
of the offence) or within 28 days for
licence loss offences. If you are
making a user statement, then you must
not pay the fine or enclose any payment
for it. Sometimes it is possible to
nominate the driver even if more than
28 days have passed from the date of
the infringement notice, and even if
the fine has been paid. Prior to July
2007, the owner could nominate the
driver and there was no provision for a
person nominated to reject the
nomination. For offences committed
since 1 July 2007 the nominated person
can send in their own user statement in
reply, or reject the statement that
nominated them. These
nomination statements can be a bit
tricky, especially since we are
currently operating under two sets of
laws. If your licence is at risk from
suspension or demerit points, and you
can not afford to get the process
wrong, then you might wish to get legal
help. There are a number of ways of
dealing with driver nominations, and
some options are smarter than others,
so get advice if you need to keep your
licence. If you are the owner of a
vehicle that has incurred a speeding
fine for driving at more than 25kmh
over the limit, you should seek legal
advice at the earliest
opportunity. There
is no obligation on the owner to make a
user statement, unless the owner is a
company. The penalty for a company
failing to complete a user statement is
over $600. Appeal
against licence
suspension If
your licence is about to be suspended
for non-payment of parking and/or
traffic fines or for demerit points,
you have the right to lodge an appeal
against the decision to suspend your
licence and a court will usually permit
you to drive pending the hearing of the
appeal. The appeal is heard in the
Magistrates Court. VicRoads will defend
the appeal. In demerit
point
matters
the grounds of appeal are restricted to
questions relating to whether or not
the demerit points have been recorded
against you correctly and lawfully.
There is generally no opportunity to
re-litigate the offences giving rise to
the demerit points, only a chance to
challenge the manner in which they were
calculated or applied to
you. Drink
driving infringement
notices A
TIN can be issued to first time drink
drivers with readings up to 0.15%. For
most drink
driving offences
if you pay the TIN, you will
automatically lose your licence for the
mandatory
licence cancellation
period
stated on the TIN beginning 28 days
after the date of the notice, unless
notice of objection is sent to Civic
Compliance within the 28 day period. If
you were not aware that the
infringement notice existed before the
28 days expired, it is possible to get
an extension of time to lodge your
objection. If
sending an objection, fill out the form
on the reverse of the fine, post the
objection to the address stated on the
notice for that purpose, keep a
photocopy of the fine and make a
detailed diary note of when and where
you posted it. This causes the TIN to
be cancelled and of no further use.
Eventually the police should send you a
"Charge and Summons" requiring you to
attend court. When you receive your
summons to attend court, a lawyer will
be able to help you to keep your
licence (whether by pleading guilty and
seeking a lighter sentence, or by
defending the charges). It is possible
to avoid the fines and recover legal
costs in the case of a successful
defence. For
first time offenders, if your reading
is under 0.07% you need not suffer
licence loss - the TIN should have 10
demerit points marked on it, and no
licence cancellation. Paying the fine
will result in you losing 10 demerit
points but keeping your licence. If you
want to save the 10 demerit points, or
you need to save your licence from
cancellation, you will need to object
to the notice and take the matter to
court. If
any driver with a reading under 0.07%
receives a TIN with any licence
cancellation or suspension period
stated on it, DO NOT PAY the fine. You
need legal advice and you might be able
to keep your licence. If you receive a
TIN and your reading is over 0.07%,
your options are: Second
offenders do not get TINs. They get
charged on summons to attend
court. Speeding
infringement notices If
you get a speeding fine, your options
are: If
a speeding infringement notice states
you are facing licence loss, the only
way of keeping your licence will be to
object to the infringement notice, wait
to be taken to court and
plead
not guilty.
It would also be wise to get
legal
advice
and representation. If you wish to save
your licence from mandatory suspension,
you need to lodge notice of objection
within 28 days of receiving the notice.
If you were not aware that the
infringement notice existed before the
28 days expired, it is possible to get
an extension of time to lodge your
objection. Unless your licence is at
risk, you may find it uneconomical to
take the matter to court. Click the
Speeding
link
for more
information. Licence
Suspension or
Cancellation? A
licence that is cancelled ceases
to exist. To be relicenced the driver
will need to attend a VicRoads office,
pay $150.00 (or whatever the fee has
been increased to by the time you read
this), and get their photo taken. All
licence cancellations are accompanied
by a period of at least three months
during which the driver is disqualified
from obtaining a licence. Once your
disqualification period has ended, and
you have obtained permission to drive
from a Magistrate if that is required,
you are free to apply for a new
licence. The new licence will have the
same status (e.g. probationary) as your
last licence had, except that for drink
drivers it will come with a 3 year zero
condition and possibly an interlock
condition. You are not required to pass
any test. Licence cancellation is
imposed for the following offences:
drink driving, dangerous driving,
driving at a dangerous speed, and some
drug driving offences. For all other
offences most Magistrates prefer to
impose licence suspension instead of
cancellation. Driver's who had their
licence cancelled are required to send
their licence to VicRoads. A
licence that is suspended ceases
to have effect for a limited time. Once
the suspension period expires the
licence is once again current (provided
the licence has not expired in the
meantime). There is nothing the driver
needs to do before being allowed to
drive except wait for the suspension
period to end. Most licence suspensions
result from speeding offences and
demerit points accrual, but all motor
vehicle offences can have licence
suspension periods imposed if they are
not subject to mandatory licence
cancellation. Drivers who have had
their licence suspended are required to
send their licence to
VicRoads. The
maximum penalty for driving whilst
suspended or whilst disqualified is,
for a first offence, up to $3000 fine
or 4 months imprisonment. For a second
offence the penalty is at least one
month imprisonment but not more than 2
years imprisonment. Terms of
imprisonment can be suspended. There is
often a further period of licence loss
ordered. Read
more
about driving whilst suspended or
disqualified. Delaying
the consequences Some
people choose to object to fines in
order to delay the consequences of a
fine, whether it be licence loss or
demerit points. When a fine is objected
to it can take several months for court
proceedings to commence, and then many
more months for the court case to
conclude. Then an appeal process can
take many more months to complete. Most
drivers are entitled to keep their
licence until the court processes are
completed. Although these tactics may
postpone the commencement of licence
loss, they usually do not reduce the
total period of licence loss that must
eventually be served, unless the
defendant is succesful in
court. Interstate
and overseas drivers
licences The
rules applying to interstate and
overseas licence holders are different
and the above information may not be
applicable. For example, non-Victorian
licences generally can not be suspended
by Victorian laws but other procedures
may apply to them, such as suspending
their entitlement to drive in Victoria
using an interstate or overseas
licence. The subject is too complicated
to give a simple definitive answer to
such problems here. If you are
concerned about your licence status and
eligibility to drive in Victoria or
your home state, then you may wish to
seek legal advice about your particular
circumstances. Related
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Copyright S. P. Hardy |