Fine but not fair: fines and disadvantage, Justice issues paper 3 ( 2008 ) Cite this report
Reviewing fine amounts
The use of penalty notices in NSW has developed in an ad hoc manner, with different issuing authorities responsible for setting the penalty amounts. As a result there is a lack of proportionality between penalty notice amounts for offences with similar levels of objective seriousness.69 The NSW Sentencing Council recently identified the need for a review of the 17 000 offences for which a penalty notice may be issued and for the establishment of guidelines for the addition or removal of offences from a penalty notice system. They noted that particular attention needed to be paid to the rational proportionality between offences and between the penalty amounts and the objective seriousness of the offences. Such a review may address the number and impact of penalty notices for offences that appear to disproportionately affect disadvantaged people.
Alternatives when issuing a fine
A possible alternative to issuing a fine to a person who has committed an offence is to issue a warning or a caution. This alternative has been raised by the Australian Law Reform Commission (ALRC).70 Under recent changes to the fine enforcement system in Victoria, there is now provision for an issuing officer to serve a written 'official warning' instead of an infringement notice.71 In NSW there are already cautioning schemes for certain offences, such as the Cannabis Cautioning Scheme (CCS). Under this scheme, police have the discretion to caution people in possession of small amounts of cannabis for personal use. A caution involves the officer supplying the offender with information on alcohol and other drug treatment services, and on the social and health effects of drug use.
Another alternative to current practices that has been suggested would be to issue fines that are proportionate to a person's income. The Council of Social Services NSW (NCOSS) suggests that people should be able to show their Centrelink concession cards to the issuing officer in order to receive a lesser fine.72 The Victorian Public Interest Law Clearing House (VPILCH) suggests the 'day fine' system may be a possible alternative. An offence is given a number of penalty points, reflecting its gravity. Each point is then given a value that is a portion of the person's income. This model may provide a way of ensuring that fines are proportionate to both the gravity of the offence and the person's ability to pay. While this system has been implemented in other parts of the world,73 its potential for effective implementation in an Australian context has not been fully examined.
Alternative processing systems
People who receive a penalty notice in NSW have 28 days to pay the fine in full or to elect to go to court. Until very recently, there was no pay by instalment arrangements available until the fine became an Enforcement Order and had accrued a $50 fee. Now, people can pay their fines in instalments of at least $20, as long as the whole amount is paid by the due date on the reminder notice.
In Victoria, a person has a number of options on receiving the first notice of an infringement. These include electing to go to court, asking the serving agency to waive the penalty, electing to pay the whole amount, applying to the agency to pay the fine in instalments or asking for an extension of time in which to pay.74 The ALRC suggested that on receiving a penalty notice people should have the opportunity to provide the issuing agency (e.g. the police, RailCorp) with information that may warrant the withdrawal of the notice.75
Electing to go to court
In our research, people experiencing social or economic disadvantage reported that going to court was a frightening prospect, even when there was the possibility that they will receive a lesser and more appropriate penalty from the magistrate. A possible solution is the implementation of courts, court sessions or court processes which specifically cater to the needs of disadvantaged people. For example the Victorian Magistrates Court has an Enforcement Review Program (ERP) to assist people who have incurred multiple fines and have 'special circumstances' such as homelessness, mental illness, acquired brain injury or a physical or intellectual disability. This program enables the Infringement Court (formerly known as the PERIN court) to impose outcomes that reflect the circumstances of the case. A person or someone on behalf of the person (such as a guardian, case worker, social worker, or a lawyer) can make a written application to ERP who, if appropriate, refers the matter for listing on a set day (the 'special circumstances list') in the local magistrate's court. The magistrate can take into consideration the 'special circumstances' of the person and tailor a sentence accordingly, even dismissing the fine.76 Such an approach addresses the circumstances or behaviour which led to the fines, potentially reducing the likelihood that further fines will be incurred. Under the new Infringements Act 2006 (Vic) the Infringement Court can also divert vulnerable people out of the court system through a formal review procedure that allows people to apply to the issuing agency on the basis of the person's special circumstances, for a review of the decision to issue the infringement notice.77
Another initiative that addresses the issue of fines and disadvantage is the California Homeless Court. The first began in San Diego in 1999 and similar courts are now operating in Los Angeles, Alemeda and Ventura counties. These courts operate in locations homeless people find easier and less frightening to access such as homeless shelters and services. The courts deal with criminal warrants for 'quality-of-life' infractions such as unauthorised removal of a shopping cart, disorderly conduct, public drunkenness, and sleeping on a sidewalk or on the beach'. According to the initiative's website: