Exposing the Injustice of Imprisonment for Fine Default

Lansdell Gaye , ‘Infringement Systems in Australia. A precarious blurring of civil and criminal sanctions’ (2012) 39(1) Alternative Law Journal 40–45.

Victoria , Parliamentary Debates. Legislative Assembly, 16 November 2005, 2187 ( Hulls Rob ).

O'Malley Pat , ‘Simulated Justice: Risk, Money and telemetric Policing’ (2010) British Journal of Criminology 795–807, 804.

Bagaric Mirko , ‘Instant Justice? The Desirability of Expanding the Range of Criminal Offences Dealt with On the Spot’ (1998) 24 Monash University Law Review 231.

See Lansdell , above n 1, 41.

With respect to the UK see: Grover Chris , Crime and Inequality (Willan, 2008), 195. For New Zealand evidence of escalation of infringements is discussed in NZ Ministry of Justice, Issues for Fines and Infringement Fees, 2008

Lansdell , above n 1, 42.

Department of Justice (Vic), Attorney-General's Annual Report on the Infringements System 2010–11 (12 April 2012) https://assets.justice.vic.gov.au/justice/resources/adc7af32-c17a-449b-b8c6-d4162c468fd2/2010_11_ag_report_infringements_sys.pdf.

Roberts Rebecca Garside Richard , ‘Punishment before Justice? Understanding Penalty Notices for Disorder’ (Centre for Crime and Justice Studies, 2005) 1.

Auditor-General Victorian , Withdrawal of Infringement Notices (2009) 15.

Hulls , above n 2, 2186

Popovic Jelena , ‘Meaningless Versus Meaningful Sentences: Sentencing the Unsentenceable’ (2006) 15 Journal of Judicial Administration 190.

Currently one penalty unit is $140.84 in the 2012–2013 financial year.

In this article the research participants have been anonymised and they are indicated by a number in parentheses, eg (1), (2).

The Infringements Working Group comprises a number of legal sector lawyers and financial counsellors who have come together to monitor the Victorian infringements legislation, supported by lawyers from Victoria Legal Aid.

Saunders Bernadette , ‘An Examination of the Impact of Unpaid Infringement Notices on Disadvantaged Groups and the Criminal Justice System - Towards a Best Practice Model’ (Monash University, 2013).

These essential facts are derived from the judgment of Emerton J Taha v Broadmeadows Magistrates Court; Brookes v Magistrates' Court of Victoria [2011] VSC 642 [16–21].

Confirmed in the case of Fernando v Port Phillip CC [2011] VSC 592, [38].

Taha v Broadmeadows Magistrates Court; Brookes v Magistrates' Court of Victoria [2011] VSC 642 [23], ( Emerton J ).

Vic Police Toll Enforcement v Taha; State of Victoria v Brookes [2013] VSCA 37 [154] (Tate, JA).

Magistrates' Court of Victoria, Annual Report 2010–2011, http://www.magistratescourt.vic.gov.au/sites/default/files/Default/MCV%20Annual%20Report%202010-11.pdf.

Ibid 118.

Re AAM; Ex parte A-G Qld [2010] GCA 305 [9] ( McMurdo P ).

McGillivray Jane Waterman Barry , ‘Knowledge and Attitudes of Lawyers Regarding Offenders with intellectual Disability’ (2003) 10(1) Psychiatry, Psychology & Law 244; Vanny Kathryn A Levy Michael H Hayes Susan , ‘People with an Intellectual Disability in the Australian Criminal Justice System’ (2008) 15(2) Psychiatry, Psychology and the Law 61.

Confirmed by report of the Mental Health Legal Centre, ‘Experiences of the Criminal Justice System - The Perspectives of People Living with Mental Illness'’, Victoria Law Foundation, 2010 http://communitylaw.org.au/mentalhealth.

Saunders , above n 16, 78–79. In a paper released in 2010, the NSW Law Reform Commission recommended law enforcement officers be forced to consider issuing a caution instead of a penalty notice (NSW LRC, Penalty Notices - Consultation Paper 10 (2010) 149.

Gray Abigail Forell Suzie Clarke Sophie , ‘Cognitive Impairment, Legal Need and Access to Justice’, Justice Issues (Paper10) (Law and Justice Foundation of NSW, 2009). In fact from the perspective of a Victorian Legal Aid Duty Lawyer (Tom Munro) who represented Mr Taha in the Court of Appeal hearing in Taha, the average time a duty lawyer has to take instructions from any one client was approximately ‘10 minutes in the context of seeing 25–35 clients a day’ (Vic Police Toll Enforcement v Taha; State of Victoria v Brookes [2013] VSCA 37 [174] ( Tate JA )).

Taha v Broadmeadows Magistrates Court; Brookes v Magistrates' Court of Victoria [2011] VSC 642 [68].

Ibid [66].

Specifically the rights to liberty (s 21), a fair hearing (s 24(1)) and equal protection before the law (s 8(3)).

Vic Police Toll Enforcement v Taha; State of Victoria v Brookes [2013] VSCA 37[184].

This is with the exception of the sum that Mr Taha had already paid. (Anecdotal evidence received from Victoria Legal Aid.)

Vic Police Toll Enforcement v Taha; State of Victoria v Brookes [2013] VSCA 37 [200]–[201].

Ibid [196].

Victoria, Parliamentary Debates, Legislative Assembly, 17 April 2013, 1259–61 ( Clark Robert Attorney-General).

Vic Police Toll Enforcement v Taha; State of Victoria v Brookes [2013] VSCA 37 [220] ( Tate JA ).

Ibid Tate JA [226] with whom Osborn JA agreed.

Both by Emerton J , in Taha v Broadmeadows Magistrates Court; Brookes v Magistrates' Court of Victoria [2011] VSC 642 [67] and by Tate JA Vic Police Toll Enforcement v Taha; State of Victoria v Brookes [2013] VSCA 37[165–168].

Vic Police Toll Enforcement v Taha; State of Victoria v Brookes [2013] VSCA 37 [28].

Vic Police Toll Enforcement v Taha; State of Victoria v Brookes [2013] VSCA 37 [184].

As referred to in the judgment of Tate JA Vic Police Toll Enforcement v Taha; State of Victoria v Brookes [2013] VSCA 37[174]

ALRC, Principled Regulation: Federal Civil and Administrative Penalties in Australia, Report No 95 (2002).

ALRC, Securing Compliance: Civil and Administrative Penalties in Federal Jurisdiction, 19 May 2002 http://www.alrc.gov.au/sites/default/files/pdfs/publications/DP65.pdf

As set out in s 5(4) Sentencing Act 1991 (Vic).

Saunders , above n 16, 38.

This concern over imprisonment being used for fine default was addressed nearly 30 years ago in the precursor to the Alternative Law Journal: Warner Kate , Imprisonment for fine default: Reform at Last?’ (1984) Legal Service Bulletin 178. See also O'Malley Pat , The Currency of Justice, Fines and Damages in Consumer Societies (Routledge-Cavendish, 2009).