Section 120 of the Sentencing Act 2017 (SA) outlines the considerations a court must take into account before making an order for a defendant to pay a pecuniary sum. The definition of a pecuniary sum includes fines, compensation, costs and the victims of crime levy [see s 5 for definition of pecuniary sum]. For all court orders requiring the payment of a pecuniary sum (except the victims of crime levy which cannot be reduced or waived) the court must first be satisfied that the means of the defendant are such that they are able to comply with the order and it would not unduly prejudice the welfare of dependants [see Sentencing Act 2017 (SA) ss 120(1)(a) and 120(1)(b); Fry v Bassett (1986) 44 SASR 90]. The Court may order the payment of a lesser amount where the means of the defendant are inadequate or the payment would cause prejudice to any dependants [see Sentencing Act 2017 (SA) s 120(1); and Guilty Pleas chapter].
The Court must not order the payment of a fine if satisfied that the defendant is impecunious and such an order would unduly prejudice the welfare of his or her dependants [see Sentencing Act 2017 (SA) s 120(1); and commentary above]. When a court fines a defendant, the defendant is given twenty-eight days from and including the day on which the order was made, in which to pay the fine in full, or to make arrangements through the Fines Enforcement and Recovery Unit for payment by instalments [see Fines Enforcement and Debt Recovery Act 2017 (SA) s 11].
| FINES ENFORCEMENT AND RECOVERY UNIT |
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It is important for the duty solicitor to advise the defendant to contact the Fines Enforcement and Recovery Unit to make payment of a court fine, or to enter into a payment arrangement, as soon as possible after their court appearance. Remind the defendant that significant monetary penalties are imposed for late payments. The Fines Enforcement and Recovery Unit has the ability to make automatic direct debits from bank accounts, accept payment by credit card or EFTPOS, and can arrange for the deduction of instalment payments from Centrelink benefits. Since 2014, the Fines Enforcement and Recovery Unit has operated separately from the courts and is no longer co-located in the Magistrates Court. |
Interstate unpaid court fines
The Service and Execution of Process Act 1992 (Cth) governs procedure in relation to the registration and enforcement of interstate fines as if they were fines incurred in the registering state, and abolishes remands in custody and penalties of imprisonment.
The 2011 amendments introduced a mechanism for the registration of unpaid interstate fines in another state when the person is believed to be a resident of that state [see Service and Execution of Process Act 1992 (Cth) ss 112 and 113; s 110 for definitions]. Registration of an interstate unpaid fine allows that fine to be enforced in the registering state ‘as if the fine had been imposed on the offender by a court of the registering State ’ and the fine can no longer be enforced in the originating state [see s 114; s 115 for payment received by originating state; s 116; s 118 for cancellation of registration; s 119 for effect of cancellation of registration]. Any challenges to the imposition of a registered fine must be made in accordance with the laws of the originating state and the offender must notify the registering state of this process [see s 120 for challenge to the imposition of a fine].
Of particular note:
A registered fine cannot be enforced by the imposition of a sentence of imprisonment on the offender despite the enforcement laws of the registering State [see Service and Execution of Process Act 1992 (Cth) s 114(4)].
A court should give priority to compensation over fines. A court may make an order requiring the defendant pay compensation for injury, loss or damage resulting from an offence or any other offence taken into account when determining sentence [see Sentencing Act 2017 (SA) s 124(1)]. An order for compensation may be made on application by the prosecution or on the court’s own initiative and can be made instead of, or in addition to, any other penalty [see s 124(2)]. The court must not order compensation if satisfied the defendant is impecunious and such an order would unduly prejudice the welfare of his or her dependants [see s 120 and commentary above].
Where property damage is caused as a result of an offence the court may make an order that the victim of the offence be compensated for their loss. Any damage to any property during the time the owner was dispossessed from it is treated as having resulted from the offence [see s 124(5)].If a court does not make an order for compensation where the circumstances suggest that such an order would be appropriate, it must give reasons for not doing so [see s 124(3)].
In addition to the provisions in the Sentencing Act 2017 (SA), other Acts empower a sentencing court to make compensation orders in particular circumstances [see for example Summary Offences Act 1953 (SA) s 6(3) for just compensation to a police officer against whom an offence of assault or hinder police was committed; Summary Offences Act 1953 (SA) s 45 for loss caused through illegal use of vehicles (not motor vehicles), horses and beasts; Summary Offences Act 1953 (SA) s 46 for loss caused through illegal use of a boat; Summary Offences Act 1953 (SA) s 47(2 ) for loss of pigeons].
Where pecuniary sums (including compensation, fines and other court costs) have been ordered by the court but are not paid or otherwise dealt with by the defendant, the Fines Enforcement and Recovery Unit has the ability to enforce the debt through various means - see Fines Enforcement and Debt Recovery Act 2017 (SA) Part 7, Division 1.
| NEGOTIATE WITH PROSECUTION |
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| It is sometimes possible to negotiate that a charge be dropped, for example if the charge is damage property and the defendant is pleading not guilty on the basis that the damage done was accidental, provided that compensation is paid. The duty solicitor should bear this in mind before pleading somebody guilty to such a charge, as it may be better to advise them to remand/adjourn the matter to attempt to negotiate such an outcome. |
All persons who are convicted of an offence must pay a victims of crime levy [see Victims of Crime Act 2001 (SA) s 32(2)(a)]; see also Victims of Crime (Fund and Levy) Regulations 2018 (SA)]. For completeness, all persons who receive an expiation notice also pay a victims of crime levy which is included on the expiation notice. The offence remains unexpiated and there is no immunity from prosecution until the levy is paid [see Victims of Crime Act 2001 (SA) ss 32(2)(b); 32(3) and 32(6)(a); Victims of Crime Act (SA) s 32(6)(b)]. A court cannot reduce or exonerate the defendant from liability to pay the levy [see s 32(7)(b)].
The Court may order the payment of fees in accordance with the regulations [see Criminal Procedure Act 1921(SA) s 191; Magistrates Court Act 1991 (SA) s 50]. The Magistrates Court has a structure of fees payable to the court in relation to criminal proceedings which is usually imposed on the defendant upon finalisation of the matter [see Magistrates Court (Fees) Notice 2021 (SA)- Criminal Division]. The Court may remit a fee in whole or in part when good reason exists to do so [see Criminal Procedure Act 1921 (SA) s 191(2); Magistrates Court Act 1991 (SA) s 50(2)].
If a court fee is not paid, it becomes a pecuniary debt which is recoverable by the Fines Enforcement and Recovery Unit.
A court may award costs for or against a party to proceedings [Criminal Procedure Act 1921 (SA) s 189(1)]. A cost order is a pecuniary sum, but not a sentence. The Court may consider a costs order where proceedings are delayed due to the neglect or incompetence of a legal practitioner or a prosecutor [ss 189(3) and 189(4)].
In accordance with the Joint Criminal Rules 2022 (SA), a successful party to an action is entitled to costs [r 159.1 - exercise of costs discretion]. Where a matter is admitted by way of a plea of guilty, the prosecution is the successful party, and where a matter is subsequently withdrawn or dismissed, the defendant is the successful party [r 159.1(3) ordinarily costs will be ordered in favour of a successful party against an unsuccessful party; r 159.3 Lower Courts costs scale and Schedule 1 for Lower Courts Criminal Scale of Costs]. However, this does not mean that costs always follow the event.
Where persons are convicted of certain criminal offences, courts have the power to make forfeiture orders. These are orders for the forfeiture of goods used in connection with the offence or which the defendant may use to profit by the offence. A forfeiture order can also be made forfeiting the property of a prescribed drug offender. The following outlines some of these powers and the related legislation:
Summary Offences Act 1953 (SA)
Controlled Substances Act 1984 (SA)
Criminal Assets Confiscation Act 2005 (SA)
| INSTRUCTIONS |
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| If an application is made in accordance with section 168 of the Road Traffic Act 1961(SA) (and it does not happen often), the duty solicitor should ask for the matter to be held whilst they take instructions from the defendant as to the effects of a loss of licence. |
Where an offence for which the defendant was found guilty involves the misappropriation of property, the Court may order that property be restored to the person entitled to possession of the property [see Sentencing Act 2017 (SA) section 123(1); section 126 for enforcement of restitution orders].
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