3.1 The fine is a sentencing option which requires the offender to pay money to the State.1 Fines may be imposed by a court or by way of an infringement or penalty2 notice. Courts can impose fines for any summary offence for which a fine is specified as a penalty for that offence3 and for any indictable offence in addition to, or instead of, any other punishment,4 including a bond where sentence has been deferred.5 Fines are also imposed by the police and other agencies through infringement notices. Such notices are traditionally issued for offences of a more regulatory rather than criminal nature, such as parking offences.
3.2 Fines are by far the most utilised sentencing option in New South Wales.6 They are often the most appropriate means of dealing with minor offences, serving as a salutary reminder that the conduct in question will not be tolerated. Their function is, therefore, essentially deterrent. They are cheap to administer and, incidentally, raise revenue for the State.
3.3 In DP 33 the Commission considered several ways in which the fine system in New South Wales might be improved.7 Since publication of the Discussion Paper, the Fines Act 1996 (NSW) has been enacted.8 This Act consolidates the law relating to fines, in particular, introducing a new system of enforcement mechanisms aimed at reducing the incidence of fine default and ensuring prompt payment of fines.9 The Commission supports this move towards consolidation and generally endorses the provisions of the Act.
3.4 The Commission nevertheless retains some concerns about several aspects of the fine system in New South Wales. These relate to:
- inequities in court-imposed fines;
- fine enforcement and penalties for fine default; and
- regulation and expansion of infringement notices.
INEQUITIES IN COURT-IMPOSED FINES
3.5 A disadvantage of the court-imposed fine is its potentially discriminatory effect on offenders of different financial standing who are required to pay the same amount of money following conviction for offences of similar gravity. The fine system may operate unfairly in two ways. First, a fine for a certain amount of money may represent a much more severe punishment for one offender than for another. Secondly, imposition of a further penalty for fine default may be more likely for an offender who does not have the financial means to pay than for an offender who does. To an extent, these issues reflect endemic social problems which cannot be resolved by simple amendment to the way in which courts impose fines. Moreover, proposals which on their face appear to redress these problems may have consequences which reduce their practical effectiveness.10
3.6 Prior to the enactment of the Fines Act 1996 (NSW), two mechanisms existed to reduce the potential inequities in court-imposed fines. First, the sentencing court was required to take account of the offender’s financial means in assessing the amount of the fine to be imposed.11 Secondly, provision existed for the court to allow the offender time to pay.12 In practice, however, in both fixing an amount and allowing time to pay, it has been submitted that courts generally have not carried out a rigorous examination of an offender’s financial status.13 Even where reference has been expressly made to the details of an offender’s financial means by, for example, the offender’s legal representative, this has not always been reflected in the final amount imposed by the sentencing court.14
3.7 The Fines Act 1996 (NSW) restates the requirement that an offender’s financial means be considered when imposing a fine15 but abolishes the sentencing court’s discretion to allow time to pay.16 Instead, a fine which is imposed by a court is payable within 28 days from the date of its imposition. The court cannot extend the 28 day time limit.17 An offender who seeks further time to pay must apply to the registrar of the court which imposed the fine, who has a very general discretion to grant further time to pay or to direct payment of the fine by instalments where it appears expedient to do so.18 An offender may be required to provide information and supporting documents in relation to the application.19 There is no right of appeal from the registrar’s decision to grant or refuse an application.20
3.8 In the Commission’s view, it is unnecessarily arbitrary and bureaucratic to fix a general 28 day time limit for the payment of fines. It is also improper to remove the discretion to order time to pay from the sentencing court and vest it instead in the court registrar, with no opportunity to appeal from the registrar’s decision. Moreover, the procedure may have adverse practical repercussions. First, there is the inevitable delay involved in requiring offenders to initiate applications to the registrar rather than have the matter heard at the same time as the sentencing court imposes the fine. Secondly, the incidence of fine default will increase with the arbitrary nature of the time limit. The Commission therefore recommends that these provisions be removed from the Fines Act 1996 (NSW) and that sentencing courts retain the discretion to order time to pay.
3.9 The Commission has considered two ways in which inequities in court-imposed fines may be reduced, namely:
- the day fine; and
- the fine option order.
The day fine
3.10 Under the day-fine system, the sentencing court determines the amount of the fine to be imposed in an individual case on the basis of a specified number of day-fine units, the amount of each unit being calculated by reference to the offender’s daily income.21 Its object is to provide a more effective means of tailoring the fine to fit the individual offender’s income.
3.11 Submissions gave only limited support to the introduction of the day fine.22 While recognising that the current system may give rise to inequities, the majority of submissions considered that there were inherent difficulties in implementing a day-fine system in New South Wales. For example, problems would arise in trying to formulate a scheme to take account of those who are asset-rich but income-poor.23 It was also argued that the effect of the system may be to reduce consistency in sentencing in terms of the nature and gravity of the offence, with an additional problem that those with higher incomes may be more likely to be fined than those with lower or no incomes.24
3.12 A significant practical objection to the day-fine system was that it would require too much time and money to assess and verify each person’s income or financial standing.25 In response, self-reporting was suggested as a simple mode of assessment.26 The offender would be required to complete a standard form as evidence of income, with sanctions available for wilful misstatement of finances. A similar procedure is already used for declaring income in applications for legal aid.27 A self-reporting procedure may be a relatively efficient way of assessing income. However, it will not always be a true representation of an offender’s financial means and may result in white collar criminals being able to conceal their financial position from the courts.
3.13 It is a compelling objection to the court-imposed fine if it operates as a harsher penalty for offenders with fewer resources, with the potential for an increase in the incidence of fine default if offenders are obliged to pay fines which are beyond their financial means. One advantage of the day fine is that it requires the sentencing court to calculate the fine according to a formula which is directly based on the offender’s income. Other jurisdictions have expressed approval of the day-fine system, at least in theory, because of this advantage.28
3.14 Despite these potential benefits, the Commission has concluded that a day-fine system should not be introduced in New South Wales. The day fine places too great a restriction on the discretion of the sentencing court to impose the sentence which is most appropriate given all the circumstances of an individual case. It may also prove too complex and consequently unworkable in practice, as the experience of other jurisdictions suggests.29 Moreover, it may be too time-consuming for courts to make an accurate assessment of the offender’s financial means.
Fine option orders
3.15 A fine option order, such as exists in Queensland,30 permits the offender to apply to the court, at the time of the imposition of a fine or thereafter, for an order that the offender be allowed to work off the fine by way of community service. The number of hours of community service is determined by the court when imposing the fine option order.31 The application for a fine option order must be supported by a statutory declaration stating the offender’s income, assets, and liabilities. The court must consider whether the offender is unable to pay the fine or whether the offender or the offender’s family would suffer hardship from paying the fine.32 If the offender fails to comply with the fine option order, the court has a discretion to revoke the order and reinstate the original fine.33 The object of this scheme is to provide for an alternative means of payment of a fine for those offenders who have limited financial resources. The Probation and Parole Officers’ Association NSW submitted that the Commission should consider the adoption of the scheme in New South Wales.34
3.16 Currently in New South Wales an offender may apply to work off a fine by way of community service, but only after there has been default in payment,35 and provided community service is available in the offender’s local area. The Fines Act 1996 (NSW) will also permit fines to be worked off by way of community service in certain circumstances, but only after all other non-custodial sanctions have been exhausted.36 There is a general power under the Fines Act 1996 (NSW) to “write off” or cancel unpaid fines where a fine defaulter does not have sufficient means to pay and is not suitable for any of the non-custodial enforcement procedures.37 It is not clear at this stage how this power is to be exercised.38 Moreover, it does not appear to assist those fine defaulters who are able to satisfy their fines by community service work but who must first default in payment and undergo all other non-custodial enforcement procedures before community service is made available. Under the fine option order scheme, however, the offender may apply for community service at the time the fine is imposed. We see significant advantages in this procedure. It may reduce inequities by offering offenders with limited finances an alternative means of working off the fine by way of community service. It may avoid hardship in individual cases caused by intermediate sanctions, for example cancellation of a driver’s licence.39 It also has the advantage of being simpler and less time-consuming than the present procedure, which requires the offender to default before alternative options are invoked. Consequently, fine option orders may be more effective in diverting from prison those offenders who do not deliberately default in payment, but who are disorganised and have difficulty understanding the way the system works in order to make an application for time to pay after default. Another advantage of this system is that the application for a fine option order may be heard relatively quickly if the offender provides the court with a statutory declaration stating all significant assets and sources of financial income.40
3.17 A disadvantage of the fine option order system is that there may be a loss of revenue ordinarily generated from payment of fines, and increased costs in administering community service. This should be balanced, however, against the lower costs of imposing sanctions for fine default if fine option orders are successful in reducing the incidence of fine default. Moreover, application of a strict means test should ensure that only those offenders without the resources to pay are eligible for fine option orders.
3.18 The fine option order system has also been criticised for what is seen as administrative interference with the court’s sentence where a court clerk, rather than the court, is empowered to determine applications for fine option orders.41 For example, fine option orders might be integrated into the new procedures under the Fines Act 1996 (NSW) by providing for registrars to hear applications for fine option orders in a similar procedure to the determination of applications for further time to pay.42 This would permit administrative interference with the sentence originally imposed by the court. In the Commission’s view, this criticism can be overcome if it is the sentencing court itself which determines whether to allow the fine to be paid off by way of community service, rather than the registrar or a court clerk.
3.19 There would also be practical concerns about the introduction of a fine option order scheme, for example, the availability of sufficient community service placements, and the allocation of resources sufficient to meet the demands of supervising an increased number of community service orders. The suitability of an offender to perform community service work, and the availability of such work in the offender’s local area would need to be assessed by the sentencing court in determining whether to grant a fine option order.
3.20 The Commission recommends that fine option orders be introduced in New South Wales. They are an effective means of reducing potential inequities in the fine system. They may reduce the incidence of fine default and permit the fine system to operate more efficiently. They may also avoid hardship in individual cases. They are more effective and less severe than the complicated procedures under the Fines Act 1996 (NSW).
FINE ENFORCEMENT AND PENALTIES FOR FINE DEFAULT
3.21 Fine default has generated much public debate and continues to be a politically sensitive issue.43 A high incidence of fine default may have a negative impact on the use made of fines as a sentencing option, as well as on public perceptions of the fine as an effective sanction. Non-payment of fines also represents a significant loss of revenue for the State. In DP 33 the Commission considered the penalties which are presently available for non-payment of both court-imposed fines and infringement notices. We noted that although imprisonment remains the final sanction for non-payment of fines in New South Wales, there are now several intermediate penalties for fine defaulters before a term of imprisonment is imposed.44 We invited submissions on what sanctions should be used for non-payment of fines and, in particular, whether imprisonment should remain the sanction of last resort. Our recommendations take into account matters raised in submissions, in light of the new enforcement procedures under the Fines Act 1996 (NSW).
Fine enforcement under the Fines Act 1996 (NSW)
3.22 The main object of the Fines Act 1996 (NSW) is to introduce new enforcement procedures to reduce the incidence of non-payment of fines.45 The Act is a response to the high incidence of fine default in New South Wales and the steady increase in the number of fine defaulters imprisoned in the last five years despite the introduction of intermediate non-custodial measures for dealing with fine default.46 It aims to provide strict enforcement procedures to ensure that people who are fined can reasonably expect to be punished if they do not pay.47 Central to these new procedures is the establishment of the State Debt Recovery Registry (“SDRR”). The SDRR will be the primary body responsible for the enforcement of both court-imposed fines and infringement notices (called “penalty notices” in the Act). The Act provides for the following steps to be taken following default in payment of a fine:48
- Enforcement order
An enforcement order is made by the SDRR following non-payment of a fine or penalty notice within the time specified for payment.49 Notice of the enforcement order is served on the fine defaulter stating that enforcement action will be taken unless the fine is paid by the date specified in the notice. In addition to the amount owing under the fine or penalty notice, enforcement costs may be payable by the fine defaulter under the enforcement order.50
- Suspension and cancellation of driver’s licence or vehicle registration
If payment is not made by the date specified in the enforcement order, any driver’s licence held by the fine defaulter is suspended.51 This sanction applies to fines for traffic and non-traffic offences alike. If the fine is not paid within six months from the time of suspension, the licence is cancelled. If the fine defaulter does not hold a driver’s licence but is the registered owner of a vehicle, registration for that vehicle is cancelled.52
- Civil action
If the fine defaulter does not have a driver’s licence or vehicle registration, or if the fine remains unpaid six months after the licence or registration is suspended, civil action is taken against the fine defaulter. The SDRR may make a property seizure order, an order to garnishee debts, wages or salary owing to the fine defaulter, or may register a charge on land owned by the fine defaulter.
- Community service order
If civil action has not been, or is not likely to be, successful in obtaining payment of the fine, the SDRR may serve a community service order on the fine defaulter. The SDRR has a discretion to write off unpaid fines for fine defaulters who are not suitable to perform work under a community service order and who do not otherwise have the means to pay the fine.53
- Imprisonment
If the fine defaulter does not comply with the community service order, the order may be revoked and a warrant of commitment issued for the imprisonment of the fine defaulter. The fine defaulter may apply to serve the term of imprisonment by way of periodic detention.
Imprisonment as a final sanction for fine default
3.23 Both the existing system for fine enforcement and the new procedures under the Fines Act 1996 (NSW) anticipate that imprisonment will be used as the final sanction for fine default. This is a matter of controversy, at least where the default is not wilful.54 It is also an expensive means of dealing with fine default in terms of prison costs. In DP 33 the Commission concluded that it is necessary to retain imprisonment as the final sanction in order to provide a sanction against wilful default.55
3.24 Submissions generally supported the view that imprisonment is necessary as a final sanction for fine default,56 primarily for wilful default.57 One submission proposed that imprisonment should be expressly abolished as a final sanction for non-wilful default.58 Another suggested that imprisonment should be retained to give offenders the opportunity of choosing to satisfy their fines in this way, but that otherwise imprisonment is an inappropriate sanction for fine default.59
3.25 In the Commission’s view, it is inappropriate that people should be imprisoned simply because they are not able to pay their fines. However, imprisonment is a necessary sanction against those who wilfully refuse to pay their fines, and we therefore support its retention as the final sanction for fine default. Nonetheless, a wide range of alternative non-custodial penalties should also be available as a means of ensuring that imprisonment is used only as the final sanction. The Commission is also firmly of the view that persons who are fined should not have the option of making the bare election to satisfy or “cut out” their fines by serving a specified term in prison.
Alternative sanctions to imprisonment for fine default
3.26 A range of options other than imprisonment has been available in New South Wales for fine defaulters.60 Similarly, the Fines Act 1996 (NSW) sets out a series of intermediate actions which can be taken against a fine defaulter to enforce payment before a warrant for commitment is issued.61 Submissions supported the wider availability of alternative sanctions for fine default as a means of ensuring that imprisonment is used only as the final sanction for wilful default.62 We here consider three of these options:
- cancellation of driver’s licence or vehicle registration;
- placing a charge on the defaulter’s property; and
- use of home detention.
Cancellation of driver’s licence or vehicle registration
Recommendation 13
The Fines Act 1996 (NSW) should provide that cancellation of the defaulter’s driver’s licence or vehicle registration should be a sanction for fine default in all cases, subject to the defaulter being allowed to regain his or her licence or registration upon part-payment of the fine on condition that he or she continue to pay off the fine by instalments.
3.27 Where the person possesses a driver’s licence or registered vehicle, fine default in relation to traffic offences is currently dealt with by way of cancellation of the defaulter’s driver’s licence or vehicle registration.63 In DP 33 the Commission considered a proposal to extend this procedure to fine default for non-traffic offences. We expressed some doubt about the proposal’s effectiveness on the basis that it might simply lead to an increase in the number of people driving while unlicensed or driving unregistered vehicles.64 However, the Fines Act 1996 (NSW) has followed this proposal by making general provision for the suspension and cancellation of a fine defaulter’s driver’s licence and vehicle registration whether the fine relates to a traffic or a non-traffic offence.65
3.28 Submissions gave very limited support to expansion of the procedure for cancellation of licences and vehicle registration.66 Some expressed concern that the cancellation of a person’s licence or vehicle registration for fine default may simply result in greater hardship in individual cases than was intended in the original sentence, and may, in fact, be counterproductive in encouraging defaulters to pay their fines.67 This is particularly so for the person whose livelihood depends on being able to drive.
3.29 It is not clear to what extent the Fines Act 1996 (NSW) protects against undue hardship arising from its new procedures for suspension and cancellation of licence and vehicle registration. It makes general provision to allow a fine defaulter to apply to the SDRR for further time to pay at any stage after an enforcement order is made and before a community service order is issued. In granting an application, the SDRR may extend the time for payment of the whole fine, or may allow the fine to be paid by instalments. If the application is granted, any further enforcement action is suspended.68 It may be possible for a fine defaulter whose licence has been suspended to apply to pay off the fine by instalments in order to avoid cancellation of the licence. However, it does not appear that this will have the effect of lifting the suspension of the defaulter’s licence if an order for suspension has already been made.
3.30 The Commission retains some doubts as to whether the new procedures for suspension and cancellation of licences and vehicle registration under the Fines Act 1996 (NSW) will be successful in enforcing payment of fines. In our view, these procedures could simply promote the use of unregistered vehicles or result in a greater incidence of unlicensed drivers.69
3.31 In response to this concern, the Legal Aid Commission suggested that fine defaulters should be allowed to regain their licence or vehicle registration upon part-payment of their fines and on condition that further payments are made by instalments.70 At present, it seems that the fine must be paid in full before a licence or vehicle registration can be regained.71 This is inconsistent with the policy for payment of non-traffic offences, which allows for offenders to apply to pay by instalment.72 Allowing offenders to regain their licences or registration upon part-payment may avoid greater hardship for offenders whose livelihood depends on being able to drive, and may also reduce the incidence of unlicensed drivers or unregistered vehicles.
3.32 On balance, the Commission is of the view that cancellation of a fine defaulter’s driver’s licence or vehicle registration should be available as a mechanism of fine enforcement regardless of the offence for which the fine was imposed. However, there needs to be greater provision to protect against undue hardship in particular cases, and to mitigate the capricious effects of the law. Allowing offenders to pay by instalments is a sensible safeguard. It may also be more effective in encouraging defaulters to pay the fine rather than to drive while unlicensed. The Fines Act 1996 (NSW) does not appear to permit a fine defaulter to regain his or her licence and vehicle registration upon part-payment of the fine. The Commission therefore recommends that there should be express statutory provision to allow fine defaulters to regain their licences and registration upon part-payment of their fines, on the condition that they continue to pay off the fines by instalments.
Placing a charge on the defaulter’s property
3.33 In DP 33 the Commission proposed that a procedure for placing a charge over a fine defaulter’s property should be introduced as an additional non-custodial penalty for fine default.73
3.34 Submissions generally supported this proposal in so far as it was a preferable sanction to imprisonment.74 Some expressed reservations as to the practicability of such a procedure, suggesting, for example that it may only be efficient where the defaulter owns a significant asset such as a vehicle or real estate, where a refined system of registration exists for that particular type of property,75 and where the amount of the unpaid fine would justify the expense of registering the charge.76 It was also suggested that the overall value of the defaulter’s personal property should be taken into account before such a penalty is imposed.77
3.35 The Fines Act 1996 (NSW) has adopted this approach by providing for a charge to be placed over property owned by a fine defaulter.78 This procedure is restricted by the Act to charges over land in relation to non-payment of fines which exceed $1,000. The charge operates as a proprietary interest and is subject to ordinary legal principles relating to priorities of interests in land.
3.36 The Commission supports this provision as offering an additional alternative sanction to imprisonment for fine default. However, we recommend that the procedure be extended to cover forms of property other than land over which a charge could be placed, provided that there is a refined system of registration of interests in the form of property. For example, a charge could be imposed on a motor vehicle belonging to the fine defaulter and placed on the Register of Encumbered Vehicles (REVS). There may be many fine defaulters who do not own land but own a motor vehicle. Extension of this procedure to motor vehicles should ensure the wider availability of this sanction for fine default.
Use of home detention
3.37 The Home Detention Act 1996 (NSW) will make this non-custodial sanction more widely available in New South Wales.79 The Commission does not, however, consider home detention to be an appropriate sanction for fine default. The home detention scheme aims to provide close supervision of offenders in an attempt to divert them from the prison system and reduce the risk of recidivism. Fine defaulters, who are likely to be sentenced to very short terms of detention, will not generally benefit from the supervisory and rehabilitative aspects of home detention. In addition, application of the home detention scheme to fine defaulters may simply encourage a culture of non-compliance as fine defaulters take advantage of the scheme to avoid paying their fines.
Other issues in relation to penalties for fine default
3.38 Submissions raised the following additional issues in relation to penalties for fine default:
- provision for retrospective cutting out of fines while in custody; and
- issuing warrants for fine default in respect of traffic offences.
Retrospective cutting out of a fine while in custody
3.39 At present, where fine defaulters are placed in custody for other offences, there is no provision for them to gain credit for that time in custody in satisfaction of their fines unless a warrant of commitment has already been issued and they are aware of the existence of the warrant when in custody. Similarly, the Fines Act 1996 (NSW) makes no provision to allow fine defaulters to cut out their fines other than pursuant to the issue of a warrant for commitment by the SDRR.80 The Law Society of New South Wales submitted that fine defaulters should be given credit for time spent in custody for another offence even where a warrant has not yet been issued for fine default in order to cut out outstanding fines.81
3.40 In principle, the Commission does not support the practice of allowing fine defaulters to cut out their fines by electing to spend a specified period of time in prison.82 Nor can we see any rational basis for allowing them to cut out their fines retrospectively.
Issuing warrants for traffic offence fine default
3.41 The Legal Aid Commission of New South Wales raised a related issue regarding fine defaulters whose drivers’ licences or vehicle registration have been cancelled as a result of non-payment of a fine for a traffic offence. It drew attention to the situation that when these fine defaulters are placed in custody for other offences, it is not the practice to issue a warrant of commitment for non-payment of the traffic fine, although no legislative prohibition prevents it.83 As a consequence, these offenders are not able to cut out their fines while in prison. It was proposed that the law should be amended to ensure that a warrant can be obtained on the application of a person already in custody for non-payment of fines relating to traffic offences.84
3.42 It seems that the Fines Act 1996 (NSW) only permits a warrant to be issued by the SDRR upon revocation of a community service order for fine default.85 It would appear, therefore, that under the Act a fine defaulter would not be able to apply for a warrant in order to satisfy a fine while serving time in custody for another offence. Again, the Commission can see no reason why offenders should be able to cut out their fines for time served in custody for other offences. While we recognise that it may often be difficult for fine defaulters to pay their fines after being released from prison, we consider that in these circumstances it is preferable to allow them to pay by instalments or to work off their fines by way of community service.86
INFRINGEMENT OR PENALTY NOTICES
3.43 Infringement or penalty notices, or “on the spot fines”, allow offenders to discharge liability in relation to an offence by payment of a specified sum. They have typically been used for less serious offences of a regulatory rather than criminal nature, such as parking and speeding offences. Their use in Australia has expanded as a result of a number of factors.87 Recent initiatives in both Australia and overseas have supported the expansion of infringement notices to cover a wider range of offences, including offences which are traditionally seen to be of a more criminal than regulatory nature.88 These initiatives recognise the advantages of using infringement notices to divert minor offenders from the court system and from the trauma, stigma and expense usually associated with criminal prosecution.
3.44 In DP 33 we invited comment on the desirability of expanding the use of infringement notices in New South Wales, and of introducing legislation to regulate infringement offences with greater precision.89 Details of the model legislation drafted by Professor Richard Fox were presented for consideration. The salient features of this legislation include:90
- infringement notices should be available for offences triable summarily;
- offenders should be notified that they can elect to go to court to contest the accusation;
- the procedure for disposing of the matter in court should be by way of hand-up brief; and
- the police and other public authorities who administer the infringement notice scheme should be given a discretion to issue a caution rather than automatically issuing an infringement notice.
3.45 Submissions generally supported the introduction of a single Infringement Act and endorsed Fox’s model legislation.91 Those submissions which cautioned against the use of infringement notices made reference to the particularly detrimental effect that these can have on specific groups of people.92
3.46 Submissions gave consideration to the criteria which should govern the classification of offences as infringement offences and the procedures relating to them. It was submitted that legislation should allow for infringement notices to be available for summary offences,93 or for all offences for which imprisonment is not an available penalty as well as those offences, such as offensive behaviour and possession of a prohibited drug, where a fine is the usual penalty for a first offence.94 As regards the procedure for hearing the matter where the person elects to contest the infringement notice in court, it was considered unsuitable for the court to dispose of the matter by way of a hand-up brief, as proposed in Fox’s model legislation. It was submitted that reliance on written material for the prosecution and the defence to state their case would disadvantage offenders who are illiterate or who have difficulties with English.95
3.47 The Fines Act 1996 (NSW) regulates the infringement notice system to a limited extent. It provides for a uniform procedure for dealing with the enforcement of infringement notices (referred to in the Act as “penalty notices”).96 It contains a definition of “penalty notice” in terms of a notice issued under the statutory powers listed in Schedule 1 of the Act.97 These statutory powers do not expand the use of infringement notices to a wider range of offences than currently exists, although there is provision for future expansion through the addition of other powers by regulation. The Act does not appear to prohibit the issue of infringement notices under powers not listed in Schedule 1, but simply does not apply to such infringement notices.98
3.48 The Commission recommends that the power to issue infringement notices and the procedures for enforcing them should be regulated by uniform legislation. This could be achieved either by the introduction of a single Infringement Act, or by amending the Fines Act 1996 (NSW) to prohibit the issue of infringement notices other than in accordance with its provisions.
3.49 Whether to expand the use of infringement notices to cover a wider range of offences involves recognition of certain dangers which the Commission considers are inherent in their use. The dangers we see are the following:
- Diminution of the moral content of particular offences
Expansion of infringement notices to offences which are traditionally regarded as more substantively criminal rather than regulatory in nature may have the effect of diminishing or removing altogether the moral content of these offences, with the consequence that they are trivialised and considered as merely administrative contraventions.
- A departure from the traditional principles of criminal law
The system for infringement notices in New South Wales is an “opt-in” system, whereby a person is deemed to have committed the act for which the penalty is imposed in the event of non-payment of the penalty unless that person takes the affirmative step of electing to dispute the matter in court. The determination of guilt without requiring the prosecution to present evidence before a judicial authority, and on the basis of strict and vicarious liability, represents a departure from the traditional tenets of the criminal justice system. This may have practical consequences for the individual if a record is kept of his or her infringements, which record may be accessed later by the police when referring to antecedents in the sentencing of that person for other offences.99
- Failure to consider each individual case
Infringement notices are issued without regard to tailoring the sanction or the amount of the penalty to fit the individual offender’s circumstances.
- Pressure on the individual to pay even if they are innocent
People may be more likely to pay the penalties for an infringement notice even if they are not guilty of the offence because they want to avoid the trauma of taking the matter to court, or because they may have to pay a greater penalty and costs if they take the matter to court.
- Net-widening
The ease with which infringement notices may be issued carries with it a risk that they will be used when a police caution would ordinarily have been given, or when the officer issuing the notice is not certain that an offence has been committed but issues a notice anyway. As a result, there may in fact be an increase in the number of people who become involved in the court system in situations where they elect to dispute the matter in court, or where they do not pay their fines. More people may also be imprisoned for failure to pay the fine. This would defeat one of the main purposes of expanding infringement notices which is to divert people from the formal criminal justice system.
- Victimisation
There is a risk that specific groups in the community will be victimised by the police and agencies administering the infringement notice scheme. Such people may feel pressured not to elect to dispute the matter in court and as a consequence will be forced to pay the fine or risk imprisonment for default.
3.50 A majority of Commissioners are nevertheless of the view the infringement notice system should be expanded, in recognition of the benefits to individuals who wish to avoid the trauma of court proceedings, as well as the economic and administrative advantages of diverting minor offenders from the court system. However, there will need to be careful consideration of the offences to which infringement notices are to apply, in order that expansion is limited to offences which are of a more regulatory character. In dissent, two Commissioners100 consider that the infringement notice system should not be expanded, on the ground that it carries too great a risk of abuse by authorities and may simply become a vehicle of oppression for particular groups in society, such as young people and Aboriginal people.
3.51 If the infringement notice system is to be expanded, the Commissioners unanimously agree that proper safeguards are needed to minimise the risks of abuse of the system. Such safeguards should include, for example, a provision which stipulates that receipt of an infringement notice should not result in a conviction being recorded for that offence. There should be a discretion not to issue an infringement notice, and guidelines should be established which set out criteria against which this discretion is to be exercised. As well, the agencies responsible for the issue of infringement notices should be properly monitored to guard against abuse and to ensure that infringement notices are not imposed on people who would not ordinarily be punished.
Infringement notices and consolidated sentencing legislation
3.52 The place of legislation regulating the use of infringement notices in any consolidated sentencing legislation will need to be determined.101 If no amendments are made to the Fines Act 1996 (NSW), the Commission is of the view that it ought not to be incorporated in consolidating legislation, but the consolidation should contain a cross-reference to the Fines Act 1996 (NSW). The advantage of retaining the fines legislation in its present form is that the procedures for the enforcement of fines and infringement notices are the same. If there is to be a separate piece of legislation applicable only to infringement notices, that legislation should not be incorporated in consolidated legislation. The consolidated legislation should, however, contain statutory provisions relating to court-imposed fines.
FOOTNOTES
1. See the definition of “fine” in s 4 of the Fines Act 1996 (NSW).
2. The Fines Act 1996 (NSW) uses the expression “penalty notice”.
3. Where an indictable offence is dealt with summarily, a fine may be imposed if it is specified as a penalty under the provision empowering the summary court to deal with the matter: see the Criminal Procedure Act 1986 (NSW) Table I and Table II offences.
4. Crimes Act 1900 (NSW) s 440AA.
5. Crimes Act 1900 (NSW) s 440B.
6. For the period 1990-1994, over 50% of persons found guilty at trial in the Local Court and sentenced each year were fined. New South Wales Bureau of Crime Statistics and Research, New South Wales Criminal Courts Statistics 1994 at 16-17. In 1995, 51,447 persons (60% of those found guilty) were fined for principal offences in the Local Court: New South Wales Bureau of Crime Statistics and Research, New South Wales Criminal Courts Statistics 1995 at 16-17.
7. See DP 33 at paras 10.2-10.23.
8. The Fines Act 1996 (NSW) received Assent on 26 November 1996.
9. Fines Act 1996 (NSW) Explanatory Note.
10. See, for example, the day fine, discussed at paras 3.10-3.14.
11. Justices Act 1902 (NSW) s 80A; Crimes Act 1900 (NSW) s 440AB. See also Budget Nursery Pty Ltd v FCT (1989) 42 A Crim R 81 (NSW CCA).
12. Crimes Act 1900 (NSW) s 440AC; Justices Act 1902 (NSW) s 83(1A).
13. Law Society of NSW, Submission (19 July 1996) at 42-43; Legal Aid Commission of NSW, Consultation (7 August 1996).
14. Legal Aid Commission of NSW, Consultation (7 August 1996).
15. The Fines Act 1996 (NSW) repeals s 80A of the Justices Act 1902 (NSW) and s 440AB of the Crimes Act 1900 (NSW) and replaces them with a similar provision within the Fines Act 1996 (NSW) requiring consideration by the sentencing court of an offender’s means to pay: see Fines Act 1996 (NSW) s 6, Sch 2.5 [3] and 2.9 [8].
16. Fines Act 1996 (NSW) s 7(1), and Sch 2.5 [4] repealing Crimes Act 1900 (NSW) s 440AC, and Justices Act 1902 (NSW) s 83.
17. Fines Act 1996 (NSW) s 7(1) and (3). The court does have a discretion under s 7(3)(a) to order payment before 28 days, but must state special reasons for doing so.
18. Fines Act 1996 (NSW) s 10.
19. Fines Act 1996 (NSW) s 11(3).
20. Fines Act 1996 (NSW) s 11(5).
21. See DP 33 at paras 10.6-10.7. See Australian Law Reform Commission, Sentencing: Penalties (DP 30, 1987) at para 25; H Thornstedt, “The Day Fine System in Sweden” [1975] Criminal Law Review 307.
22. Only one submission expressed unqualified support for its introduction: see M Dodson, Submission (26 June 1996) at 4, and one considered it may be appropriate: see Law Society of NSW, Submission (19 July 1996) at 42-43.
23. M L Sides and Bar Association, Submission (24 June 1996) at 70.
24. NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 28-29.
25. W D T Ward, Submission (25 July 1996) at 19; M L Sides and Bar Association, Submission (24 June 1996) at 70.
26. Analogous to self-assessment in taxation returns: Law Society of NSW, Submission (19 July 1996) at 43.
27. Applicants for legal aid must fill in a standard form and, usually, produce some verification of income, such as a pay slip or receipt for social security payment: Legal Aid Commission of NSW, Consultation (7 August 1996). The practical implications of this suggestion would need to be considered, for example, assistance for people with literacy or language difficulties would be necessary. Confidentiality of disclosures would also need to be considered. While offenders’ privacy is better protected by reliance on written information, it may be breached by disclosure in open court: Law Society of NSW, Submission (19 July 1996) at 43.
28. See for example Australian Law Reform Commission, Sentencing of Federal Offenders (ALRC 15, 1980) at 235-236; Western Australia, Report of the Committee of Inquiry into the Rate of Imprisonment, (“the Dixon Report”) (Perth, 1981) at 169; and Great Britain, Advisory Council on the Penal System, Report on Non-Custodial and Semi-Custodial Penalties (HMSO, London, 1970) at paras 20-25, quoted in the Dixon Report at 166-169.
29. In the United Kingdom, the “unit-fine system” was introduced in 1991: see Criminal Justice Act 1991 (UK) s 18. Less than a year after its introduction, the unit fine was abolished: see Criminal Justice Act 1993 (UK) s 65. It was considered to be over-complicated, mechanistic, and to interfere with the sentencing court’s discretion to impose appropriate fines in individual cases: see House of Commons, Standing Committee B, col 240, June 17, 1993, cited in Current Law: Statutes Annotated (Sweet & Maxwell, London, 1993) c 6-119. See also “Editorial: The Good, the Bad, and the Unacceptable” (1993) 143 New Law Journal 425, and Lord Justice Taylor, “Howard’s Production Line Justice” The Times, 23 May 1996 at 20. The day-fine system was also rejected by the Australian Law Reform Commission primarily because it would be unworkable: see ALRC, Sentencing (ALRC 44, 1988) at para 114.
30. See Penalties and Sentences Act 1992 (Qld) Part 4 Div 2.
31. Penalties and Sentences Act 1992 (Qld) s 66(b).
32. Penalties and Sentences Act 1992 (Qld) s 58(a).
33. Penalties and Sentences Act 1992 (Qld) s 74(4)(b) and 78.
34. Probation and Parole Officers’ Association NSW, Submission (31 July 1996) at 8.
35. Justices Act 1902 (NSW) s 89C(1); Community Service Orders Act 1979 (NSW) s 26A.
36. Fines Act 1996 (NSW) s 58(d) and 78. See para 3.22.
37. Fines Act 1996 (NSW) s 101(2).
38. The State Debt Recovery Office is to exercise the power to write off fines in accordance with guidelines: see Fines Act 1996 (NSW) s 101(1) and 120. These guidelines have not yet been promulgated.
39. See paras 3.27-3.32.
40. It would, of course, be in the offender’s interests to come to court with such a declaration if it is likely that a fine will be imposed.
41. Australian Law Reform Commission, Sentencing (ALRC 44, 1988) at para 115.
42. See para 3.29.
43. See, for example, Parliament of New South Wales, Report of the Inquiry Into the Central Industrial Prison Dated August 1988 by His Honour A G Muir QC (Government Printer, 1988) 3 Volumes, which was an inquiry into the assault of Jamie Partlic while detained in custody as a fine defaulter. For more recent discussion see, for example, R Jochelson, Fine Default: Enforcing Fine Payment (NSW Bureau of Crime Statistics and Research, 1995) and media reports such as K Gosman, “Fine Defaulters Go Back to Bay” Sunday Telegraph (26 May 1996) at 29.
44. DP 33 at paras 10.9-10.10.
45. See Fines Bill 1996 Explanatory Note.
46. There was a total increase of 51.5 % in the number of fine defaulters received into custody from the first twelve months to the last twelve months of the period between 1990 and 1995, although the actual prison population of fine defaulters in this period decreased. It has been suggested that this decrease represents a reduction in the average time served by fine defaulters, due to the fine cut-out rate for time spent in prison increasing from $50 to $100 per day. It has also been suggested that the rise in the cut-out rate may have contributed to the increase in fine defaulter prison receptions, as offenders may be more willing to settle their fines by spending a short period in prison. See New South Wales Bureau of Crime Statistics and Research Key Trends in Crime and Justice, New South Wales 1995 at 49.
47. It was argued by R Jochelson in Fine Default: Enforcing Fine Payment (NSW Bureau of Crime Statistics and Research, Sydney, 1995) at 5, that the increase in the prison population of fine defaulters despite the wider availability of alternative penalties indicates that the problem of fine default lies more in an ineffective fine enforcement system rather than in an inability of fine defaulters to pay. Jochelson submitted that the problem of fine default under the existing enforcement procedures may stem from the fact that a large number of fine defaulters do not expect to be punished.
48. See Fines Act 1996 (NSW) s 58.
49. In relation to penalty notices, a penalty reminder notice is served on the fine defaulter before an enforcement order is made. The penalty reminder notice specifies a date for payment which must be at least 21 days after the notice has been served on the defaulter. If the penalty is not paid by the date specified in the reminder notice, an enforcement order may be made: see Fines Act 1996 (NSW) Part 3 Div 3 and 4.
50. Fines Act 1996 (NSW) s 16 and 44.
51. Fines Act 1996 (NSW) s 66.
52. Fines Act 1996 (NSW) s 67(1). There does not appear to be any provision to suspend vehicle registration before cancellation.
53. Fines Act 1996 (NSW) s 101(2). See para 3.16.
54. See, for example, Parliament of New South Wales, Report of the Inquiry into the Central Industrial Prison Dated August 1988 by His Honour A G Muir QC (Government Printer, 1988) 3 Volumes; ALRC, Sentencing (ALRC 44, 1988) at para 144. See also DP 33 at para 10.8.
55. DP 33 at para 10.12.
56. Confidential, Submission (22 May 1996) at 39; W D T Ward, Submission (25 July 1996) at 19; D Blakemore, Submission (26 June 1996) at 18; Department of Corrective Services, Submission (15 July 1996) at 31; M L Sides and Bar Association, Submission (24 June 1996) at 70.
57. W D T Ward, Submission (25 July 1996) at 19; Department of Corrective Services, Submission (15 July 1996) at 31; M L Sides and Bar Association, Submission (24 June 1996) at 70.
58. M Dodson, Submission (26 June 1996) at 4.
59. Law Society of NSW, Submission (19 July 1996) at 42.
60. These include periodic detention, community service, civil enforcement of the debt, and cancellation of drivers’ licences or vehicle registration for the non-payment of traffic and parking fines. See generally Justices Act 1902 (NSW) s 86A-95. See also A Freiberg and R Fox, Enforcement of Fines and Monetary Penalties: Working Paper (National Road Transport Commission, Melbourne, November 1994).
61. See para 3.22.
62. W D T Ward, Submission (25 July 1996) at 19; Law Society of NSW, Submission (19 July 1996) at 42; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 28; Department of Corrective Services, Submission (15 July 1996) at 31; M L Sides and Bar Association, Submission (24 June 1996) at 70.
63. Traffic Act 1909 (NSW) s 18C.
64. DP 33 at para 10.17.
65. Fines Act 1996 (NSW) s 66 and 67. See para 3.22.
66. Only one submission gave express support to the proposal: see Department of Corrective Services, Submission (15 July 1996) at 31. One submission noted that cancellation of a driver’s licence was an appropriate penalty in its own right for many offences involving motor vehicles (such as car theft, and “road rage”) beyond those for which it is presently available: see N J H Milson, Submission (3 July 1996) at 11.
67. Legal Aid Commission of NSW, Submission (18 July 1996) at 8; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 28.
68. Fines Act 1996 (NSW) s 100(5).
69. For the year ended June 1995, it was estimated that less than 4% of the driving population of NSW was unlicensed. A 1992 survey established that about 2% of vehicles operating in NSW were unregistered, although 45.6% of these had their registration renewed in one month or less after registration expiry, and 70% were renewed within 90 days: see Roads and Traffic Authority, Annual Report 1994/95 at 24-25. The Fines Act 1996 (NSW) provides some protection to third parties in anticipation of defaulters driving whilst unlicensed or driving unregistered vehicles. Section 70 states that a vehicle insurance policy is not terminated by the cancellation of the registration of a vehicle or the suspension or cancellation of a driver’s licence under Part 4 Div 3 of the Fines Act 1996 (NSW).
70. Legal Aid Commission of NSW, Submission (18 July 1996) at 8.
71. See Legal Aid Commission of NSW, Submission (18 July 1996) at 8; Roads and Traffic Officers Policy Manual at para 4.41.
72. Justices Act 1902 (NSW) s 83(1A).
73. DP 33 at para 10.18.
74. Legal Aid Commission of NSW, Submission (18 July 1996) at 18; J L Swanson, Submission (1 July 1996) at 2; N R Cowdery, Submission (17 June 1996) at 5 and 15. The use of civil enforcement instead of imprisonment wherever possible was supported, on the condition that any dependent children could be adequately provided for: see Probation and Parole Officers’ Association NSW, Submission (31 July 1996) at 8. The proposal was expressly rejected by W D T Ward, Submission (25 July 1996) at 19.
75. For example, the Land Titles Office and the Register of Encumbered Vehicles would be satisfactory, but registration systems for vessels and aircraft are more cumbersome and therefore less useful: N R Cowdery, Submission (17 June 1996) at 15.
76. N R Cowdery, Submission (17 June 1996) at 15.
77. Legal Aid Commission of NSW, Submission (18 July 1996) at 18.
78. Fines Act 1996 (NSW) s 74.
79. See paras 7.4-7.6.
80. Fines Act 1996 (NSW) s 87, 90, 93 and 94. As a limited exception to this, the Act permits a fine defaulter who is subject to a CSO to satisfy the order if he or she is imprisoned during all or any part of the period in which the order is in force: see Fines Act 1996 (NSW) s 83(1).
81. Law Society of NSW, Submission (19 July 1996) at 42.
82. See para 3.25.
83. Justices Act 1902 (NSW) s 87(4) provides that a warrant of commitment may not be issued in relation to a fine for a traffic offence without an application being made by the offender to an authorised justice.
84. Legal Aid Commission of NSW, Submission (18 July 1996) at 8-9.
85. Fines Act 1996 (NSW) s 86.
86. See para 3.16.
87. See R Fox, Criminal Justice on the Spot, Infringement Penalties in Victoria (Australian Institute of Criminology, Canberra, 1995) at para 1.1.5.
88. For example, the Penalty Notices Working Party of the Attorney General’s Department (NSW) is currently considering expanding the power to impose infringement notices to a wider range of offences, possibly under a single Infringement Act. Since 1986 police in South Australia have had a discretion to issue an expiation (infringement) notice instead of prosecuting possession of small amounts of cannabis: see Controlled Substances Act 1984 (SA) s 45a, and Fox (1995) at 38-39. The Expiation of Offences Act 1987 (SA) extended expiation notices to offences under a further 18 Acts. An offence notice scheme with on the spot fines for offences such as indecent exposure and offensive behaviour was proposed for the ACT: see Australian Capital Territory Legislative Assembly, Report No 1 of the Standing Committee on Legal Affairs: Crimes (Amendment) Bill 1993 (Canberra, 1993). The ALRC recommended an infringement notice scheme for minor offences: ALRC, Multiculturalism and the Law (ALRC 57, 1992) at Ch 9. Overseas, the Contraventions Act 1992 (Can) created a ticketing scheme for minor regulatory offences: see Law Reform Commission of Canada, Classification of Offences, Working Paper No 54 (LRC, Ottawa, 1986) and Fox (1995) at 255-259.
89. DP 33 at paras 10.19-10.23.
90. DP 33 at para 10.22; R Fox, Infringement Notices: Time for Reform? (Australian Institute of Criminology, Trends and Issues, No 50, November 1995) at 6.
91. Law Society of NSW, Submission (19 July 1996) at 42; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 29; M L Sides and Bar Association, Submission (24 June 1996) at 71.
92. M Dodson, Submission (26 June 1996) at 4; M L Sides and Bar Association, Submission (24 June 1996) at 72. Strategies for assisting offenders to have access to interpreter services was seen as important: see M L Sides and Bar Association, Submission (24 June 1996) at 72.
93. M L Sides and Bar Association, Submission (24 June 1996) at 71-72.
94. Law Society of NSW, Submission (19 July 1996) at 44. In relation to juvenile offenders, it was submitted that infringement notices should only be available for offences for which imprisonment is not an available penalty.
95. Law Society of NSW, Submission (19 July 1996) at 43; M L Sides and Bar Association, Submission (24 June 1996) at 72.
96. Fines Act 1996 (NSW) Part 3.
97. Fines Act 1996 (NSW) s 20(2).
98. Fines Act 1996 (NSW) s 20(3).
99. At present, the Roads and Traffic Authority keeps a record of traffic infringements in accordance with Reg 10B of the Motor Traffic Regulations 1935 (NSW). This record may be referred to if a person appears in court for a traffic offence such as culpable driving.
100. Justice John Dowd and Professor Michael Tilbury.
101. See para 14.6. For example, the consolidated Sentencing Act 1991 (Vic) contains provisions relating to court-imposed fines in Part 3 Div 4, as does the Sentencing Act 1995 (WA) in Part 8 and the Penalties and Sentences Act 1992 (Qld) Part 4.
