Civil Justice
3 May 2013
Special circumstances and s. 160 of the Infringements Act 2006
In Victorian Toll & Anor v Taha & Anor; State of Victoria v Brookes & Anor [2013] VSCA 37, the
Court of Appeal upheld a Supreme Court ruling that a magistrate is under a duty to inquire into the
circumstances of an infringement offender, including whether they have a disability or other special
circumstances, before making an imprisonment order against them for a failure to pay fines under
the Infringements Act 2006 (Vic) (the Act).
The facts
Mr Taha is a young man with an intellectual disability who owed over $11,000 in unpaid fines for
minor offences. A magistrate ordered him to pay the fines in monthly instalments of $80, or face
automatic imprisonment. Neither the magistrate nor the duty lawyer representing him knew of Mr
Taha’s intellectual disability at the time. Mr Taha paid off $1,280 and then defaulted on his order.
Consequently, he was sentenced to 84 days imprisonment.
Ms Brookes was diagnosed with post traumatic stress disorder arising from assaults by her former
partner. She incurred numerous driving related fines totalling over $15,000. The magistrate was told
of Ms Brookes’ circumstances, however required written material in support of any application
under s. 160(2) of the Act. Rather than have the matter adjourned, so that this material could be
obtained, Ms Brookes instructed the duty lawyer to seek an instalment order instead. The
magistrate ordered that she pay $45 a month, with imprisonment of 134 days in default of payment.
Ms Brookes defaulted on the instalment order.
Unified construction of s.160
Section 160(1) of the Act confers on the court the power to order that an infringement offender be
imprisoned. However, ss. 160(2) and (3) provide for the making of alternative and less punitive
orders for certain infringement offenders, if satisfied that:
 the infringement offender has a ‘mental or intellectual impairment, disorder, disease or illness’
 ‘special circumstances’ apply to the infringement offender or
 imprisonment would be ‘excessive, disproportionate and unduly harsh’.
The Court of Appeal found that in both of these cases, the magistrates were obliged to consider the
eligibility of Mr Taha and Ms Brookes to a discharge of the whole or part of their fines, by reason of
their intellectual disability and mental illness respectively, under the ‘special circumstances’
provision in s. 160(2). By failing to do this, the magistrates misconstrued their functions under s.
160 of the Act and made orders that were beyond their powers, thereby committing a jurisdictional
error. In particular, they failed to understand that s. 160 should be read as a ‘unified whole’ so that
the powers it gives, to imprison for non-payment of fines or to discharge fines are to be understood
as a set of options, each of which needs to be considered before any order is made.

On 16 April 2013, the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Bill 2013 (Vic)
was introduced into the Legislative Assembly. Part 6 of the Bill seeks to address issues raised by the Court of Appeal by
creating a new right to apply for a rehearing of orders made under s. 160 of the Infringements Act 2006 (Vic). The court,
on rehearing, will consider whether special circumstances may exist (such as an undisclosed mental illness) or whether
new or previously undisclosed information may render the imprisonment order excessive, disproportionate or harsh.
These amendments are due to commence by default on 1 September 2014, unless proclaimed earlier.
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Civil Justice
Special circumstances and s. 160 of the Infringements Act 2006
Duty to inquire
At any s.160 hearing, there is an obligation on the court to consider the application of ss. 160(2)
and (3) irrespective of whether the possibility of their application has been raised by the
infringement offender. A unified construction of s. 160 therefore places a duty on the court to inquire
about the personal circumstances of the infringement offender, before making an order under s.
160.
The exact steps that must be taken to discharge this duty will depend on the matter before the
court. At first instance, Justice Emerton noted that certain ‘flags’ in Mr Taha’s case should have
prompted the court to ask questions. Mr Taha was young and had incurred a large number of fines
over a long period of time for repeated offences of a similar kind. He had been placed on an
instalment plan, so it was likely that his ability to meet payments had been considered and the
magistrate informed that Mr Taha was on a pension. Had the magistrate asked what type of
pension he received, Mr Taha’s disability would have been uncovered. Further, the court’s records
showed that Mr Taha was the subject of a Justice Plan, which would have revealed the existence of
an intellectual disability, had further investigations been undertaken through the Infringements
Registrar or the court itself.
On appeal, Justice Nettle considered the extent of the duty to inquire and noted that each case will
turn on its own facts and circumstances. He stated that where an infringement offender is
represented by a QC, there may be no need to make further inquiries. In contrast, where an
infringement offender appears unrepresented, or the extent of the representation is limited (for
example, to duty lawyer services), the court’s duty to inquire will generally be greater. Justice Tate
found that, in a s. 160 hearing, the court is always under a duty to inquire, yet what is required to
discharge that duty will depend on the particular facts of each case. Justice Osborn generally
agreed with the reasoning of Justice Tate on the nature of the duty to inquire.
The Charter
The Court of Appeal found that a unified construction of s. 160 was supported by the Charter and
common law rights to a fair hearing, equal protection of the law and liberty. Before placing an
infringement offender on an imprisonment or imprisonment in lieu order, the existence of special
circumstances, intellectual disability or mental illness, or circumstances making imprisonment
excessive, disproportionate or unduly harsh needs to be considered by the court.
Effect of the decision
Below are some matters to keep in mind when appearing in a s. 160 hearing on behalf of an
infringement offender. Whilst there is an obligation on the court to consider whether special or
exceptional circumstances exist before exercising its powers under s. 160, lawyers should also be
alert to any ‘flags’ that could raise the possibility of an application under ss. 160(2) or (3). Consider:
 the nature of the fines, the number of fines and the circumstances under which they have
been incurred. If the client is on a benefit, find out what type of payment is received and, if on
a disability pension, the nature of their disability. Find out if they have been previously placed
on a Justice Plan or mental health assessment or treatment order under the Sentencing Act
1991 (Vic).
 the client’s capacity to give instructions before proceeding with the hearing if your inquiries
establish the existence of a mental illness.
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Civil Justice
Special circumstances and s. 160 of the Infringements Act 2006
 if an adjournment is needed. Once the existence of a mental illness or intellectual disability is
raised, a court may require written material to support any application under ss. 160 (2) or (3)
of the Act. An adjournment may be necessary in circumstances where your client has
instructed you to proceed with the matter. If the court does adjourn the hearing to make some
further inquiries of its own, or to allow time for you to provide further written material in support
of the application, it is important to take the time to explain to your client that the court has the
power to independently investigate the implications of the illness or disability before it can
exercise its discretion under s. 160 of the Act.
If you see a client whose circumstances were not adequately considered when they were placed on
an imprisonment or imprisonment in lieu order, Magistrates’ Courts will now recall warrants and
hold a re-hearing, so clients should not usually have to seek judicial review. Proposed legislative
reform will introduce a formal re-hearing process, but this is not expected to take effect for some
time.
Disclaimer. The material in this publication is intended as a general guide only. The information contained should not be
relied upon as legal advice, and should be checked carefully before being relied upon in any context. Victoria Legal Aid
expressly disclaims any liability howsoever caused to any person in respect of any legal advice given or any action taken
in reliance on the contents of the publication.
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