Fines

[6-100] Generally

Part 2, Division 4 (ss 15 to 17 inclusive) Crimes (Sentencing Procedure) Act 1999 sets out the statutory scheme for fines. The Fines Act 1996 also applies and establishes a Commissioner of Fines Administration (previously the State Debt Recovery Office).

A fine is a monetary penalty and is noted in Acts as a number of penalty units.

The value of one penalty unit is prescribed in s 17 Crimes (Sentencing Procedure) Act and, currently, one penalty unit is equal to $110.

[6-110] Availability

Any offence

A fine can be imposed if it is specified as a penalty for the offence.

Indictable offences

A judge sentencing a person convicted on indictment may, in addition to or instead of any other punishment, impose a fine up to 1,000 penalty units: s 15(2) Crimes (Sentencing Procedure) Act 1999. Section 15 does not apply where another provision empowers the imposition of a fine for the offence: s 15(1). Fines may be imposed in addition to or instead of any other penalty that may be imposed for the offence: s 15(3). Therefore, fines may be imposed under s 15 in addition to, or instead of, any of the following dispositions:

  • imprisonment

  • intensive correction order (ICO)

  • community correction order (CCO).

A fine cannot be imposed in addition to a conditional release order (CRO) in respect of the same offence: s 9(3) Crimes (Sentencing Procedure) Act.

Certain indictable offences may be heard summarily under the Criminal Procedure Act 1986. The maximum fine that a magistrate hearing such matters may impose is set out in s 267(3) Criminal Procedure Act (maximum penalties for Table 1 Offences), being 100 penalty units or the maximum fine provided by law for the offence, whichever is the smaller fine. Section 268 Criminal Procedure Act sets out the maximum penalties for Table 2 offences.

The maximum amount of a fine is generally the amount prescribed for the offence. Where a person is convicted of an offence at common law or indictment, the penalty is at large. The fine imposed should not be excessive: Smith v The Queen (1991) 25 NSWLR 1 per Kirby P at 13–18, and Mahoney JA at 24.

Discretion

Section 21(3) Crimes (Sentencing Procedure) Act provides:

If by any provision of an Act or statutory rule an offender is made liable to a fine of a specified amount, a court may nevertheless impose a fine of a lesser amount.

Thus, unless the amount of the fine is mandatory, any fine may be less than that specified for the offence in the legislation.

Consideration of an accused’s means to pay

There are restrictions imposed on the court in exercising the discretion to impose a fine. Section 6 Fines Act 1996 provides that:

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:

(a) 

such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b) 

such other matters as, in the opinion of the court, are relevant to that fixing of the amount.

Section 6 is materially similar to s 16C(1) Crimes Act 1914 (Cth) and the approach taken at common law: see Flego v Lanham (1983) 32 SASR 361 at 365–367. The expression “is required to” in s 6 indicates that the court must have regard to the issue, that is, it is a mandatory consideration: Retsos v R [2006] NSWCCA 85 at [14]. The judge erred in Retsos v R because there was no credible evidence which established that the applicant had the capacity to pay fines totalling $80,000. It has been held in the context of applying s 16C(1) to Commonwealth offences that although the means of an offender to pay is a mandatory consideration it is not a decisive factor: Jahandideh v R [2014] NSWCCA 178 at [16]–[17].

Other considerations that are relevant in determining the amount of a fine include the seriousness of the offence, its prevalence and deterrence: Jahandideh v R at [16]–[17]; Darter v Diden (2006) 94 SASR 505 at [20]; Smith v The Queen (1991) 25 NSWLR 1 at 17–18. In some cases, consideration of the financial circumstances of an offender may increase, rather than decrease, a fine in order for it to be a deterrent: Jahandideh v R at [17].

Time to pay

Section 5 Fines Act provides a period of 28 days to pay the fine and a person may apply to the court registrar for additional time to pay. However, a court with special reasons may direct payment before 28 days: s 7(3) of the Act.

Accumulation of fines

Where there is more than one offence, there is no statutory limit on the aggregate of fines which may be imposed.

Corporations

Where a penalty for an offence committed by a body corporate is a term of custody only, the Supreme Court, the Court of Criminal Appeal, the Land and Environment Court, the Industrial Relations Commission or the District Court, may instead impose a fine up to 2,000 penalty units, and any other court may impose a fine up to 100 penalty units: s 16 Crimes (Sentencing Procedure) Act.

Other general considerations

When imposing more than one fine or a fine with another sentence, the court should consider the totality of the conduct and the total sentence imposed: Sgroi v The Queen (1989) 40 A Crim R 197. See also Applications of the totality principle at [8-210].

It is not inappropriate to order the payment of a fine simply because it will be paid by another person in circumstances where that “would create obligations and concern” to the offender: R v Repacholi (1990) 52 A Crim R 49 at 63.

A fine may be appropriate in addition to a term of imprisonment where the offender has benefited financially from the crime: R v Rahme (1989) 43 A Crim R 81.

Although there is a jurisdictional limit for the Local Court in terms of the maximum fine that may be imposed, where such a penalty is being considered, the court should “impose a penalty reflecting the objective seriousness of the offence … taking care not to exceed the maximum jurisdictional limit”: Roads and Maritime Services v L & M Scott Haulage Pty Ltd [2013] NSWCCA 107 at [20]; R v Doan (2000) 50 NSWLR 115 at [35].

[6-120] Summary of procedure

The following is a summary of the procedure for the payment of fines imposed by courts under s 5(1) Fines Act 1996.

(a) 

Payment details

A fine imposed by a court is payable within 28 days after it is imposed.

(b) 

Notification of fine

The person on whom the fine is imposed is to be notified of the fine, the arrangements for payment and the action that may be taken under this Act to enforce the fine.

(c) 

Time to pay

A court registrar may allow further time to pay the fine on the application of the person.

(d) 

Enforcement order

If payment of the fine is not made by the due date, a court fine enforcement order may be made against the person. If the person does not pay the amount (including enforcement costs) within 28 days, enforcement action authorised by the Act may be taken (see Part 4 Fines Act).

(e) 

Withdrawal of enforcement order

A court fine enforcement order may be withdrawn if an error has been made.

[6-130] Fine(s) imposed with other orders

Where more than one order is imposed for a single offence, a separate order must be given for each as per the form of order for each disposition. The fine is separate: R v McGovern [1975] 1 NSWLR 642.

Often a maximum penalty provision for an offence stipulates that a fine or a period of imprisonment, “or both”, can be imposed. The use of the word “both” entitles the court to make more than one order.

Section 9(3) Crimes (Sentencing Procedure) Act 1999 explicitly provides that a fine and a conditional release order (CRO) cannot be imposed in relation to the offender in respect of the same offence. A CRO with a conviction may be made as an alternative to imposing a fine: s 9(3)(b).

[6-140] Default provisions

The fine enforcement procedure under the Fines Act 1996 is set out in Pt 4. A summary of the procedure appears in s 58(1):

(a)

Service of fine enforcement order

Notice of the fine enforcement order is served on the fine defaulter and the fine defaulter is notified that if payment is not made enforcement action will be taken (see Div 2).

(b)

Driver licence or vehicle registration suspension or cancellation

If the fine is not paid within the period specified, the Roads and Maritime Services suspends any driver licence, and may cancel any vehicle registration, of the fine defaulter. If the driver licence of the fine defaulter is suspended and the fine remains unpaid for 6 months, the Roads and Maritime Services cancels that driver licence (see Div 3).

(c)

Civil enforcement

If the fine defaulter does not have a driver licence or a registered vehicle or the fine remains unpaid after 6 months, civil action is taken to enforce the fine, namely, a property seizure order, a garnishee order or the registration of a charge on land owned by the fine defaulter (see Div 4).

(d)

Order requiring community service

If civil enforcement action is not successful, an order requiring community service is served on the fine defaulter (see Div 5).

(e)

Imprisonment if failure to comply with order requiring community service

If the fine defaulter does not comply with the order requiring community service, a warrant of commitment is issued to a police officer for the imprisonment of the fine defaulter (except in the case of children). [The Commissioner of Corrective Services may determine that the fine defaulter’s period of imprisonment be served under an intensive correction order (see s 89)].

(f)

Fines payable by corporations

The procedures for fine enforcement (other than orders requiring community service and imprisonment) apply to fines payable by corporations (see Div 7).

(g)

Fine mitigation

A fine defaulter may seek further time to pay and the Commissioner of Fines Administration may write off unpaid fines or make a work and development order in respect of the fine defaulter for the purposes of satisfying all or part of the fine. Applications for review may be made to the Hardship Review Board (see Div 8).

For the purposes of para (e) above, s 90 Fines Act provides the formula for calculating the period of imprisonment to be served based on the relevant outstanding fine. At the time of writing, the relevant amount is calculated at $120 per day, but must not be for less than one day or more than 3 months: s 90(1). The fine is satisfied when the defaulter duly serves the total period of imprisonment under the warrant: s 91; or else pays the relevant outstanding fine: s 96. Note also that there are special restrictions relating to children and those under 21 years of age: s 92.

The Fines Further Amendment Act 2008 amended the Fines Act in response to, inter alia, NSW Sentencing Council, The Effectiveness of Fines as a Sentencing Option, Interim Report, 2006, which recommended the creation of a trial “work and development order” scheme to divert vulnerable people from a fine enforcement process: see Pt 4, Div 8 (effective 10 July 2009).

The system known as Centrepay, whereby persons in receipt of Centrelink payments may elect to have a fine enforcement order paid through direct debits from their Centrelink payments, is given legislative status: s 100(3A). However, Centrepay is only available once the fine has progressed to the enforcement stage. The Fines Act is amended to allow the Commissioner of Fines Administration (previously the State Debt Recovery Office) to issue a fine enforcement order where a determination is made to make an order under s 100 or a work and development order: ss 14(1A), 42(1AA). In either case, the Commissioner must postpone the enforcement costs payable and waive those costs if such orders are complied with: cl 6(2) Fines Regulation 2015.

The registrar of a court that has imposed a fine, or to which a fine is payable, may now refer a matter to the Commissioner where a person is eligible for the Centrepay scheme, or where the person is seeking a work and development order, even if the person has not defaulted on the fine: s 13 Fines Act. The Commissioner’s power to write off unpaid fines was extended by the amending Act so that part, or the whole, of an unpaid fine may be written off: see ss 101(1A), 101(1B), 101(3), 101(4) Fines Act.

It is an offence for a person to drive if his or her licence has been suspended or cancelled as a result of a fine default under s 66 Fines Act: s 54(5) Road Transport Act 2013.

[6-150] Financial payment in lieu of fines

A court cannot require some other financial payment to be made in lieu of a fine, such as a donation to a charity: Griffiths v Hutchison (unrep, 1/2/91, NSWSC) per McInerney J.

See further compensation orders in Victims and victim impact statements at [12-860].

[6-160] Fines for Commonwealth offences

Availability

Fines are noted in the Acts as numbers of penalty units. The value of one penalty unit is prescribed in s 4AA Crimes Act 1914 (Cth) (currently $180). A fine can be imposed if a fine is specified as a penalty for the offence or pursuant to s 4B(2) Crimes Act 1914:

Where a natural person is convicted of an offence against a law of the Commonwealth punishable by imprisonment only, the court may, if the contrary intention does not appear and the court thinks it appropriate in all the circumstances of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty not exceeding the number of penalty units calculated using the formula:

Term of Imprisonment x 5

where:

Term of Imprisonment is the maximum term of imprisonment, expressed in months, by which the offence is punishable.

For example, where the maximum term of imprisonment for an offence is 6 months then the maximum pecuniary penalty available would be 30 penalty units. The fine is calculated as follows: 30 x 180 = $5,400. As to corporations, see s 4B(3).

Section 4AA(3) Crimes Act provides that on 1 July 2018 and every third 1 July thereafter (an indexation day) the penalty unit amount is to be replaced by an amount worked out using the prescribed formula (the indexation factor for the indexation day multiplied by the dollar amount immediately before the indexation day).

Relevant definitions for the indexation formula are contained in s 4AA(4). When the penalty unit amount is increased in accordance with s 4AA(3), the increased amount applies only to offences committed on or after the indexation day: s 4AA(8).

Amount

The maximum amount of a fine that can be imposed is the maximum fine specified for the particular offence, or the amount specified in s 4B. Penalties attracting a maximum term of life imprisonment may also attract a pecuniary penalty of up to 2000 penalty units: s 4B(2A).

Constraints

Matters to be taken into account

Whether the offender is given a custodial sentence or some other disposition such as a fine, there are matters which must be taken into account under s 16A Crimes Act 1914.

Consideration of defendant’s means to pay

The court must take into consideration the defendant’s means to pay: s 16C Crimes Act 1914. That requirement does not dictate that the defendant’s financial circumstances will determine the fine imposed: Jahandideh v R [2014] NSWCCA 178 at [15]. See Fines at [16-030].

Enforcement and recovery

Section 15A Crimes Act 1914 picks up State law in relation to the enforcement and recovery of fines imposed on Commonwealth offenders. For the NSW laws, see above.

As condition of recognizance

A recognizance can be imposed in relation to a release pursuant to s 20(1)(a) or (b) Crimes Act 1914.

[6-170] Children’s Court

Where the Children’s Court finds a person guilty of an offence it may impose a fine, being the lesser of the maximum fine prescribed by law for the offence or 10 penalty units: s 33(1)(c) Children (Criminal Proceedings) Act 1987. As to the type of offence, see s 32. Orders made under s 33(1) are dependent on guilt, not conviction, and in determining the appropriate disposition the court must take into account any plea of guilty.

Good behaviour bond: A fine may be imposed with a good behaviour bond: s 33(1)(d).

Disqualification: The power to order disqualification from driving is not limited by s 33: s 33(5)(a).

Forfeiture: The power to order forfeiture is not limited by s 33: s 33(5)(b). Similar ancillary orders relating to drugs and implements may be made.