Sentencing: The judge's decision about punishment

Fines

What's the difference between a fine and “reparation”?

Sentencing Act 2002, ss 14, 32-38

A fine is a punishment for breaking the law and it is paid to the court.

Reparation is paid to a victim of a crime as compensation for things like damage to property or emotional harm. You can be sentenced to pay both a fine and reparation. If you can't afford both, the judge must order reparation only, and may order lesser reparations or payments in instalments.

The amount of reparation ordered is usually based on information about the amount of the damage, the costs to the victim, and your ability to pay.

Can I be fined even if I can't afford to pay?

Sentencing Act 2002, ss 14, 15, 40-44, 55-57; Summary Proceedings Act 1957, ss 81, 82

When setting a fine, the judge has to take into account what you can afford to pay. The judge can require you to make a “declaration as to financial capacity”, giving information about your income, assets, liabilities and outgoings. You can be made to stay at the court for up to two hours so you can make this declaration.

If the judge decides you can't afford to pay, they may sentence you to a community-based sentence – usually community work. Community work sentences range from 40 to 400 hours.

The judge can also allow you to pay your fine in instalments.

How much time will I be given to pay the fine?

Summary Proceedings Act 1957, ss 82, 83; Sentencing Act 2002, s 42A

The judge can order you to pay a fine straightaway if they decide you can afford to do this after you've completed a “declaration of financial capacity” saying how much you earn (your income), what money and property you have (your assets), and what you need to spend.

A Collections Officer will usually talk to you about paying the fine before you leave. If you don't pay the fine at the court before you leave, you'll be sent a Notice of Fine in the post, which will give you four weeks to pay.

The notice will also include an identifying number that you should quote when dealing with the court about the fine.

Note: Although the court must send you a Notice of Fine, it's your responsibility to find out whether you've been ordered to pay a fine and what your rights and obligations are. In other words, if the courts don't send you the notice for some reason, you still have to pay the fine by the due date.

What are my options once I get the Notice of Fine from the courts?

Summary Proceedings Act 1957, ss 80-82, 86

You usually have four weeks (28 days) from the date of the Notice of Fine to:

  • pay the fine, or
  • ask for more time to pay, or to pay the fine in instalments, or both (you apply to the District Court registrar, or to a Collections Manager in some courts), or
  • challenge the fine (see “Challenging a fine” below).

An enforcement fee of $102.22 will be added to your fine if you don't pay it by the due date.

If you ask for more time to pay the fine, or to pay in instalments, you may have to make a declaration of financial capacity setting out your income, assets and expenditure. You may also need to make an initial payment.

You don't have an automatic right to pay the fine in instalments. The courts will decide whether to let you, and the amount of each instalment.

You can be given up to five years' extra time to pay the fine.

For information about unpaid fines and what the courts can do to enforce them, see the chapter “Driving and traffic law”, under “Court processes: How driving offences are dealt with”.

Challenging a fine

Overview

There are two ways of challenging a fine, as explained below:

  • You can appeal your fine within a set time limit, the same way as any sentence can be appealed.
  • If you think the court process wasn't fair, you can apply to the judge to use their discretion to order a rehearing on the ground that there's been a “miscarriage of justice”.

Appealing the fine

Criminal Procedure Act 2011, ss 229-232, 244, 247, 248, 250

You can appeal a fine to the High Court by appealing against the decision to find you guilty (appealing your conviction), or appealing against the decision to fine you (appealing your sentence), or both. You can also appeal the amount of the fine.

Usually you have to file your appeal within 20 working days after the judge's decision to fine you.

Getting a “rehearing” of a fine decision

Criminal Procedure Act 2011, s 177

If the judge fined you after convicting you at a hearing you attended, they have a discretion to order a rehearing, either of the whole case or just of the fine.

When they're deciding whether to order a rehearing, the main question for the judge is whether there's been a “miscarriage of justice” – in other words, whether there was something unfair about the process.

This could be, for example, if some of the evidence the judge relied on wasn't legally admissible in court, or if the judge made a mistake in interpreting the relevant law, or if the judge or the prosecution lawyer behaved improperly at the trial.

Criminal Procedure Act 2011, ss 125, 126

If the judge fined you after convicting you in your absence, and you didn't know the court hearing was happening, you have the right to a rehearing. If you did know about the hearing but couldn't be there for a good reason or if you have a defence, you can apply for a rehearing.

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