Financial Penalty or Fine Victorian State Legislation –
A Court may choose to order that an offender pays a fine.
Financial Penalty – The Legislation:
If a person is found guilty of an offence the court may, subject to any specific provision relating to the offence, fine the offender in addition to or instead of any other sentence to which the offender may be liable.
- The maximum fine that a court may impose under section 49 is—
- the appropriate maximum specified in the specific provision; or
- if no maximum is specified there, then that specified in subsection (2).
- If a person is found guilty of an offence and the court has power to fine the offender but the amount of the fine is not prescribed anywhere, then the maximum fine that may be imposed is that set out in section 109(2) or (3) (as the case requires) according to the level of the offence or of the term of imprisonment that may be imposed in respect of the offence.
The amount of the fine will depend on:
Some offences, e.g. possession of a small quantity of cannabis, are fine only offences in that the Court cannot sentence the offender to anything harsher than a fine.
Some offences have a statutory maximum, in that the Court only has the power to order a fine up to a certain amount. The statutory maximum is set out per penalty unit. The amount of a penalty unit changes over time.
If an offender is sentenced to a fine the offender may also choose to convert the fine to unpaid community work.
This sentencing disposition can be made with or without a conviction (see Conviction v Non Conviction).
Fine – Commonwealth Legislation
For federal offences, it is important to note that you cannot receive a fine without conviction. Section 4B of the Crimes Act 1914 (Cth) allows the Court to impose a fine on a convicted person in addition to OR instead of an imprisonment term. It should be highlighted also that certain federal offences under the Act are listed as punishable by imprisonment only.
Section 4B details the formula for calculating the maximum fine for a person convicted of an offence under the Act, and this is centred around the number of penalty units; in determining the fine, the maximum term of imprisonment is multiplied by five. As an example, an offence with a maximum prison sentence of 6 months would allow for a maximum fine of 30 penalty units.
Unless the contrary intention is stated, corporations can be charged five times the amount as a natural person convicted of the same offence pursuant to s 4B(3). For example, if a corporation is charged with an offence that carries a maximum prison term of 6 months they may be fined up to 150 penalty units.
Fines for Indictable Offences Heard Summarily
Section 4J outlines the maximum fine for an indictable federal offence that has been heard and determined summarily. In the circumstances where the maximum imprisonment term for the offence is 5 years or less, the Court has the power to impose a fine of 60 or less penalty units. The fine can be in addition to, or instead of a prison sentence.
In the circumstance that the maximum penalty for an offence is more than 5 but less than 10 years, the Court can impose a fine of 120 or less penalty units. Again, the fine can be instead of or in addition to the prison sentence.
Fines for Indictable Offences That Are Not Punishable by Imprisonment Heard Summarily
Section 4JA details the maximum fine that may be imposed when an indictable offence against a law of the Commonwealth is not punishable by imprisonment is determined summarily.
Section 4JA(2) outlines the maximum fine conditions where offences that cannot be punished by imprisonment are heard summarily:
- Where the maximum fine for an individual convicted of an indictable offence would have been 300 penalty units, the maximum for the summary conviction may not be more than 60 penalty units.
- Where the maximum fine for an individual convicted of an indictable offence would have been 600 penalty units, the maximum for the summary conviction may not be more than 120 penalty units.
- Where the maximum fine for a body corporate convicted of an indictable offence would have been 1500 penalty units, the maximum for the summary conviction may not be more than 300 penalty units.
- Where the maximum fine for a body corporate convicted of an indictable offence would have been 3000 penalty units, the maximum for the summary conviction may not be more than 600 penalty units.
When sentencing a federal offender, the Court must always have regard to their ‘means’, ‘financial circumstances’, and any other relevant factors they deem necessary to include.
In contrast, an offender within poor financial circumstances cannot automatically be excluded from receiving a fine as punishment. Where a Court deems appropriate, even a fine that is beyond the offender’s ability to pay may be handed out.
Part VIIC of the Crimes Act 1914 (Cth) focuses on the collection, use and disclosure of old conviction information; this is known as the “Spent Convictions Scheme”, which covers financial penalties. The purpose is to prevent discrimination from previous convictions, once the waiting period has ceased and the individual has not re-offended.
A “spent conviction” is a conviction of a Commonwealth, Territory, State or foreign offence that satisfies all of the following conditions:
- Is 10 years since the date of the conviction (or 5 years for juvenile offenders); and
- Person was not sentenced to imprisonment or not sentenced to imprisonment for more than 30 months; and
- Person has not re-offended during the 10 years (5 years for juvenile offenders) waiting period; and
- An exclusion does not apply.
The law affects Federal authorities through the below:
- A person with a conviction protected by Part VIIC does not have to disclose that conviction to any person, including a Commonwealth authority, unless an exclusion applies;
- Commonwealth authorities are prohibited from accessing, disclosing or taking into account spent convictions of Commonwealth offences.
It should be noted that Part VIIC and Crimes Regulations 1990 (Cth) cover statutory or regulatory exclusions that can prevent particular Commonwealth convictions from being spent under certain circumstances.
Please note this legislation is very different to the Spent Conviction Scheme in Victoria. Offenders charged with commonwealth offences should understand that the Victorian Spent Conviction Legislation will not apply to them.