CLCs spare homeless mum from prison

Loddon Campaspe CLC and the Public Interest Law Clearing House (PILCH) recently assisted Shelley*, a homeless mum, to apply for a rehearing of her infringements matters. We requested that her imprisonment warrants be cancelled and orders be set aside in favour of those which considered her special circumstances.

Shelley had incurred many infringements over a period of five years during which she had experienced family violence, homelessness, drug and alcohol addiction and mental illness. When she failed to pay fines pursuant to enforcement orders, warrants were issued for her arrest and she was brought before a Magistrate.

At the hearing,  Shelley had no legal representation and the Magistrate failed to enquire about her circumstances. The Magistrate ordered Shelley to pay all the fines pursuant to a payment plan. He also made an order for imprisonment in the event that she defaulted on the payment plan (commonly referred to as an ‘Imprisonment in Lieu Order’). This meant that Shelley would 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 was no mechanism for appeal.

Loddon Campaspe CLC was briefed by PILCH to apply to the Magistrates’ Court for a rehearing of Shelley’s matter following the Court of Appeal decision in 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) and State of Victoria v. Brookes and Magistrates’ Court of Victoria (Brookes) (cases very similar in circumstance to our client’s) which held that:

  • Section 160 has to be read in a unified fashion. Before making an order under 160 (1), the Court is required to consider the availability of ‘less draconian’ orders under subsections (2) and (3)
  • The court has a duty to inquire into the circumstances of the offender. The Court should respond to ‘flags’ which indicate to the Court what sort of inquiries need to be made
  • The failure of the Magistrate to enquire about the circumstances of Mr Taha and Ms Brookes and the making of an order in accordance with section 160 (1) amounted to a ‘jurisdictional error’

In the application for rehearing of the matter, Loddon Campaspe CLC submitted that the effect of the Magistrate’s jurisdictional error (in failing to consider Shelley’s circumstances in accordance with section 160 of the Infringements Act) meant that the decision had ‘no legal foundation and is properly to be regarded, in law, as no decision at all’ (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597at [53]).

The Magistrate was satisfied that he had the power to cancel the warrants and rehear the matter in consideration of Shelley’s circumstances. Ultimately, the Magistrate reduced the fines by two-thirds, payable in accordance with a payment plan. No imprisonment in lieu order was made.

Loddon Campaspe CLC will prepare a summary of the submissions made that may assist others seeking to make similar applications. It will be uploaded to our website in due course.


Image:  Thomas Hawk

Please note: the above image is provided for illustrative purposes only and does not represent any person related to the matter referred to in this post.

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