Division 4Civil
enforcement
71When enforcement action taken
under this Division
(1)
Enforcement action is to be taken against a fine
defaulter under this Division if the fine defaulter has not paid the fine as
required by the notice of the fine enforcement order served on the fine
defaulter and:
(a)
enforcement action is not available under
Division 3 to suspend or cancel the driver licence or vehicle registration of
the fine defaulter, or
(b)
the fine remains unpaid even though any available
enforcement action was taken under Division 3.
(2)
Enforcement action may be taken under this
Division by means of a property seizure order, a garnishee order or a charge
on land, or by all or any combination of those means.
Note—
If enforcement action under this Division has not
been or is unlikely to be successful in satisfying the fine, enforcement
action can be taken against the fine defaulter under Division 5 (Community
service orders).
s 71: Am 1997 No 121,
Sch 1 [9]; 1998 No 35, Sch 1 [24] [25]; 1998 No 99, Sch 1.4
[14].
72Order to seize property of
fine defaulter
(1)
The Commissioner may make an order for the
seizure of the property of a fine defaulter for the purpose of levying the
fine payable by the fine defaulter on that property. The order is called a
property
seizure order.
Note—
The Interpretation
Act 1987 defines property to include land as well as
personal property.
(2)
The Commissioner may make a property seizure
order only if satisfied that enforcement action is authorised against the fine
defaulter under this Division.
(3)
The order may be made in the absence of, and
without notice to, the fine defaulter.
(4)
The order is to be directed to the Sheriff, and
provided to the Sheriff by the Commissioner for
execution.
(5)
(6)
A property seizure order operates as a writ for
the levy of property issued by the Local Court under Part 8 of the Civil Procedure Act 2005 and, for that
purpose, the Commissioner is taken to be the judgment
creditor.
(7)
If the Sheriff is required to execute a property
seizure order and a writ of execution issued by a court or to execute more
than one property seizure order, the priority to be accorded to their
execution is as follows:
(a)
a property seizure order is to be executed before
a writ of execution (even if the writ was issued before the
order),
(b)
property seizure orders are to be executed in the
order in which they were received by the Sheriff (unless the Sheriff is
directed by the Commissioner to execute them in a different
order).
(8)
The Sheriff is to return a property seizure order
to the Commissioner if the order has not been executed within 12 months after
it was made. The Commissioner is to cancel an order so returned, but nothing
in this subsection prevents the issue of a further order in the
matter.
(9)
The Sheriff or other person executing a property
seizure order is to cease executing the order if the order is cancelled under
section 77.
s 72: Am 1998 No 35,
Sch 1 [26]; 2005 No 28, Sch 5.19 [1] [2]; 2007 No 94, Sch 2; 2013 No 82, Sch 1
[5].
73Order to garnishee debts,
wages or salary of fine defaulter
(1)
The Commissioner may make an order that all debts
due and accruing to a fine defaulter from any person specified in the order
are attached for the purposes of satisfying the fine payable by the fine
defaulter (including an order expressed to be for the continuous attachment of
the wage or salary of the fine defaulter). The order is called a garnishee
order.
(2)
The Commissioner may make a garnishee order only
if satisfied that enforcement action is authorised against the fine defaulter
under this Division.
(3)
The order may be made in the absence of, and
without notice to, the fine defaulter.
(4)
The order operates as a garnishee order made by
the Local Court under Part 8 of the Civil Procedure
Act 2005 and, for that purpose:
(a)
the Commissioner is taken to be the judgment
creditor, and
(b)
an instalment order under section 107 of that Act
includes an order under this Act by the Commissioner for the payment of a fine
by instalments, and
(c)
such other modifications as are prescribed by the
regulations have effect.
(5)
A garnishee order is sufficiently served on a
corporation if the order is transmitted electronically to the corporation and
received through an information system designated by or on behalf of the
corporation as the system to be used for the purpose of receiving the
order.
(6)
An order served electronically pursuant to
subsection (5):
(a)
if served after 5.00pm on any day, is taken
(subject to paragraph (b)) to have been served on the next day,
and
(b)
if served on a Saturday, Sunday or public
holiday, is taken to have been served on the next day that is not a Saturday,
Sunday or public holiday.
s 73: Am 2005 No 28,
Sch 5.19 [3] [4]; 2007 No 94, Sch 2; 2012 No 61, Sch 1 [14]; 2013 No 82, Sch 1
[5].
74Registration of fine
enforcement order as charge on land
(1)
The Commissioner may apply to the
Registrar-General for registration of a fine enforcement order in relation to
any land owned by the fine defaulter (including any land owned jointly with
another person).
(2)
An application may not be made under this section
unless the amount payable under the order (or the total amount payable under
the orders) to which the application relates exceeds $1,000 or such other
amount as is prescribed by the regulations.
(3)
An application under this section must define the
land to which it relates.
(4)
The Registrar-General must, on application under
this section and lodgment of a copy of the fine enforcement order, register
the order in relation to the land in such manner as the Registrar-General
thinks fit.
(5)
There is created by force of this section, on the
registration of the order, a charge on the land in relation to which the order
is registered to secure the payment to the Commissioner of the amount payable
under the order.
(6)
Such a charge ceases to have effect in relation
to the land:
(a)
on registration of the cancellation of the charge
under section 77, or
(b)
on the sale or other disposition of the property
with the consent of the Commissioner, or
(c)
on the sale of the land to a purchaser in good
faith for value who, at the time of the sale, has no notice of the
charge,
whichever first occurs.
(7)
Such a charge is subject to every charge or
encumbrance to which the land was subject immediately before the order was
registered and, in the case of land under the provisions of the Real Property Act 1900, is subject to
every prior mortgage, lease or other interest recorded in the Register kept
under that Act.
(8)
Such a charge is not affected by any change of
ownership of the land, except as provided by subsection
(6).
(9)
If:
(a)
such a charge is created on land of a particular
kind and the provisions of any law of the State provide for the registration
of title to, or charges over, land of that kind, and
(b)
the charge is so
registered,
a person who purchases or otherwise acquires the land
after the registration of the charge is, for the purposes of subsection (6),
taken to have notice of the charge.
(10)
If such a charge relates to land under the
provisions of the Real Property Act
1900, the charge has no effect until it is registered
under that Act.
s 74: Am 2013 No 82,
Sch 1 [5].
75Examination of fine
defaulter
(1)
The Commissioner may issue an order (an order for
examination) under this section for the purpose of enabling
enforcement action to be taken under this Division.
(2)
An order for examination may be directed:
(a)
if the fine defaulter is a natural
person—to the fine defaulter, or
(b)
if the fine defaulter is a corporation—to
an officer or former officer of the corporation.
(3)
An order for examination:
(a)
is to require the person to whom it is directed
to attend before the Commissioner or other specified authorised officer, or
before a specified officer of a court, at the place specified in the order,
and
(b)
is to require the person to so attend on a day
and at a time specified in the order and thereafter as required by the
Commissioner or officer to be orally examined as to the fine defaulter’s
property and other means of satisfying the fine and generally as to the fine
defaulter’s financial circumstances, and
(c)
may require the person to produce to the
Commissioner or officer, at any such examination, any document or other thing
in the person’s possession or control that tends to show the fine
defaulter’s true financial circumstances.
(4)
An order for examination is to be served
personally on the person to whom it is directed.
(5)
A person is not bound to produce any document or
other thing that is not specified or sufficiently described in the order for
examination or that the person would not be bound to produce on a subpoena for
production in the Supreme Court.
(6)
An order for examination may not be issued to a
person if that person has previously attended an examination within the
previous 3 months pursuant to an order for examination under this
section.
(7)
An examination under this section may be
adjourned:
(a)
by the Commissioner, in a case where a person is
required to attend before the Commissioner or other specified authorised
officer, or
(b)
by a specified officer of a court, in a case
where a person is required to attend before the specified
officer.
(8)
The Commissioner, authorised officer or specified
officer of the court (as the case requires) must notify the person concerned
of the time and place for the adjourned examination.
(9)
The Commissioner may, instead of issuing an order
for examination, request the fine defaulter by notice to supply the relevant
information for the purpose of enabling enforcement action to be taken under
this Division. An order for examination may be issued if the notice is not
complied with.
s 75: Am 1998 No 35,
Sch 1 [27]. Subst 2013 No 82, Sch 1 [25].
75AEnforcement of order for
examination
(1)
If a person who is issued with an order for
examination fails to attend in accordance with the order, the Commissioner may
issue a warrant for the apprehension of the person and for the person to be
brought before the Commissioner or other specified authorised officer, or
before a specified officer of a court, for examination in accordance with this
section.
(2)
Any such warrant of apprehension:
(a)
may not be issued unless the Commissioner is
satisfied that the order for examination was duly served on the person,
and
(b)
may not be issued until at least 14 days after
the person was notified (in the manner required for the service of a fine
enforcement order) that a warrant will issue if the person does not attend for
examination in accordance with this section, and
(c)
is to be directed to the Sheriff and may be
executed by the Sheriff or by the Sheriff’s officers or by any court
bailiffs authorised by the Sheriff, and
(d)
may be executed with the assistance of any police
officer.
(3)
The Commissioner may report the following matters
to the Supreme Court or the District Court for determination:
(a)
a failure to attend in accordance with an order
for examination,
(b)
a refusal, without reasonable excuse, to give
evidence on oath or affirmation after attending for
examination,
(c)
the giving of false information at an
examination,
(d)
a failure, without reasonable excuse, to produce
any document or thing required to be produced by an order for
examination.
(4)
The court to which the matter is referred may
deal with the matter as if it were a contempt of that
court.
s 75A: Ins 2013 No
82, Sch 1 [25].
76Power of entry to execute
property seizure order
(1)
The person executing a property seizure order
may, at any reasonable time of the day or night, enter any premises for the
purposes of executing the order.
(2)
Subsection (1) does not authorise any such person
to enter any part of premises used only for residential purposes without the
permission of the occupier of the premises or the authority of a search
warrant under this section.
(3)
Any such person may apply to an authorised
officer for the issue of a search warrant if the person believes on reasonable
grounds that there may be property liable to seizure under the property
seizure order in any premises.
(4)
An authorised officer to whom any such
application is made may, if satisfied that there are reasonable grounds for
doing so, issue a search warrant authorising any person who is executing the
property seizure order to enter the premises and seize property in the
premises in accordance with that or any other property seizure
order.
(5)
Division 4 of Part 5 of the Law
Enforcement (Powers and Responsibilities) Act 2002 applies
to a search warrant issued under this section.
(6)
Without affecting the generality of section 71 of
the Law Enforcement (Powers and Responsibilities) Act
2002, a police officer:
(a)
may accompany a person executing a search
warrant, and
(b)
may take all reasonable steps to assist the
person in the exercise of the person’s functions under this
section.
(7)
This section does not authorise a person to seize
property under any warrant of execution or order (other than a property
seizure order) while the person is in premises in pursuance only of the
authority conferred by this section.
(8)
In this section:
authorised officer has the same
meaning as it has in the Law Enforcement (Powers and
Responsibilities) Act 2002.
premises includes any structure,
building, aircraft, vehicle, vessel or place (whether built upon or
not).
s 76: Am 2002 No 103,
Sch 4.34 [1]–[4].
76ASheriff’s additional
costs of taking enforcement action under this Division
(1)
The costs and expenses reasonably incurred by the
Sheriff in taking enforcement action under this Division and approved by the
Commissioner are enforcement costs payable by the fine defaulter under the
fine enforcement order.
(2)
The amount of those costs and expenses is to be
determined in accordance with the scale applicable to the enforcement of
judgment debts under the Civil Procedure Act
2005, but is to be reduced by any amount prescribed under
section 16 (2) (c) or 44 (2) (c) as payable to the Consolidated
Fund.
(3)
For the purposes of this section, the
Commissioner has the functions of the registrar of the relevant court with
respect to the approval of those costs and expenses.
(4)
Enforcement costs recoverable under this section
are payable to the Sheriff and not to the Consolidated
Fund.
(5)
The power of the Local Court to review a decision
of a registrar of the court in respect of any such enforcement costs applies
to a decision of the Commissioner under this section.
Note—
Enforcement costs payable under a fine
enforcement order form part of the fine—see section 57
(4).
s 76A: Ins 1998 No
35, Sch 1 [28]. Am 2005 No 28, Sch 5.19 [5]; 2007 No 94, Sch 2; 2013 No 82,
Sch 1 [5].
77Cancellation of property
seizure, garnishee order or charge on land
(1)
A property seizure order, garnishee order or
charge on land under this Division is cancelled on the service of a community
service order on the fine defaulter under Division 5 for the enforcement of
the fine concerned.
(2)
A property seizure order, garnishee order or
charge on land under this Division is cancelled on the payment of the fine
concerned.
Note—
The writing off of the fine or the remission of
the fine also operates as payment for the purpose of cancelling enforcement
action—see sections 101 and 123.
(3)
The Commissioner may cancel a property seizure
order, garnishee order or charge on land at any time for any good
reason.
(4)
The cancellation of a charge on land does not
take effect until the Registrar-General registers the cancellation of the
charge.
s 77: Am 2013 No 82,
Sch 1 [5].
Division 5Community service
orders
78When orders may be
made
Enforcement action may be taken against a fine
defaulter under this Division if:
(a)
the fine defaulter has not paid the fine as
required by the notice of the fine enforcement order served on the fine
defaulter, and
(b)
enforcement action under Division 4 has not been
or is unlikely to be successful in satisfying the
fine.
79Making of community service
order against fine defaulter
(1)
The Commissioner may make a community service
order requiring a fine defaulter to perform community service work in order to
work off the amount of the fine that remains unpaid.
(2)
The Commissioner may make the order only if
satisfied that enforcement action is authorised against the fine defaulter
under this Division.
(3)
The Commissioner is not to make an order if
satisfied that the person is not capable of performing work under an order or
is otherwise not suitable to be engaged in such work.
(4)
The order may be made in the absence of, and
without notice to, the fine defaulter.
(5)
The order may be made before the execution of a
warrant under Division 4 and in anticipation that enforcement action may not
be successful under that Division in satisfying the fine. The order is not to
be served if that enforcement action is successful.
(6)
Subject to this Division:
(a)
Divisions 1 and 4 of Part 7 (other than sections
92 and 93) of the Crimes (Sentencing Procedure) Act
1999, and
(b)
Part 5 of the Crimes
(Administration of Sentences) Act 1999 and any regulations
made for the purposes of that Part,
apply to a community service order under this section in
the same way as they apply to a community service order under section 8 of the
Crimes (Sentencing Procedure) Act
1999.
(6A)
Subject to this Division, section 11 of the
Children (Community Service Orders) Act
1987 applies to a community service order under this Act
requiring a fine defaulter to perform community service work in relation to a
graffiti offence within the meaning of that Act in the same way as it applies
to a community service order under that Act.
Note—
Section 11 of the Children
(Community Service Orders) Act 1987 requires a community
service order to require the offender to perform graffiti clean
up.
(7)
In the application of the provisions referred to
in subsections (6) and (6A) to a community service order under this section, a
reference in those provisions to a court is taken to be a reference to the
Commissioner.
(8)
A community service order is to be in the
approved form.
s 79: Am 1999 No 94,
Sch 4.23 [1]; 2004 No 43, Sch 1 [34]–[36]; 2010 No 59, Sch 1.12 [4];
2012 No 57, Sch 1.2 [1] [2]; 2013 No 82, Sch 1 [5].
80Service and notice of
order
(1)
As soon as practicable after making a community
service order under this Division, the Commissioner must cause a copy of the
order and written notice of the order to be served on the fine
defaulter.
(2)
The notice must be in the approved form and must
include the following information:
(a)
the place at which, or person to whom, the fine
defaulter must present himself or herself, in person, for the purpose of
enabling the administration of the order to be commenced,
(b)
the period within which the fine defaulter must
present himself or herself.
(3)
Three copies of the notice must be served on the
fine defaulter.
(4)
The fine defaulter must sign 3 copies of the
notice in the presence of the person by whom it was served. Of the
copies:
(a)
one is to be kept by the fine defaulter,
and
(b)
one is to be served by the person who served the
notice on the fine defaulter on the Commissioner of Corrective Services or the
Director-General of the Department of Juvenile Justice, whichever is
appropriate, and is to be kept by the Commissioner or Director-General, as
appropriate, and
(c)
one is to be served by that person on, and kept
by, the Commissioner.
(5)
A community service order is not invalidated by a
failure to comply with this section or section 80A.
s 80: Subst 2004 No
43, Sch 1 [37]. Am 2010 No 59, Sch 1.12 [4]; 2013 No 82, Sch 1
[5].
80AProvisions relating to service
of orders and notice
(1)
The community service order and notice may be
served on the fine defaulter only in accordance with the directions of the
Commissioner.
(2)
The order and 3 copies of the notice are to be
served personally on the fine defaulter by the Sheriff or the Sheriff’s
officers or by a court bailiff authorised by the
Sheriff.
(3)
The person who serves a community service order
under this Division is required to explain the order to the fine defaulter on
whom it is served.
(4)
The explanation is to be given in a language
likely to be understood by the fine defaulter and is to include information as
to the following matters:
(a)
the requirements to be complied with by the fine
defaulter under the order,
(b)
the consequences that may follow if the fine
defaulter fails to comply with those requirements,
(c)
the fact that the order may be satisfied by
payment of such part of the fine as has not been satisfied by the performance
of community service work under the order.
s 80A: Ins 2004 No
43, Sch 1 [37]. Am 2013 No 82, Sch 1 [5].
81Number of hours of community
service work
(1)
The number of hours of community service work,
specified in a community service order made under this Division, to be served
by the fine defaulter is to be calculated at the rate of 1 hour for each $15
of the amount of the fine that remains unpaid.
(2)
The number of hours specified in any one order
must not exceed 300 hours (in the case of an adult) or 100 hours (in the case
of a child). The fine defaulter may be subject to more than one order under
this Division at any one time.
(3)
The number of hours specified in any one order is
additional to any number of hours of community service work required to be
performed by any other order under this Division or otherwise than under this
Division. Accordingly, the total number of hours that a person may be required
to perform at any one time under another Act does not apply to any hours
required to be worked by an order under this Division.
(3A)
In the case of a person who is a child at the
time a community service order is made under this Division, community service
work may be performed concurrently for the purposes of that order and for the
purposes of any other community service order made under this Division or
otherwise than under this Division.
(4)
The regulations may increase the amount of $15
mentioned in this section and section 83. If the regulations do so, the
reference to the amount of $15 in those sections is to be construed as a
reference to that increased amount.
(5)
In this section:
adult means a person who is of or
above the age of 18 years.
child means a person who is under
the age of 18 years.
s 81: Am 1997 No 121,
Sch 1 [10]–[12].
82Satisfaction of orders by
payment
If a fine defaulter who is subject to a community
service order under this Division duly pays the fine (or the unsatisfied
balance of the fine having regard to the number of hours of community service
work already performed) the order is taken to be satisfied.
Note—
The writing off of the fine or the remission of
the fine also operates as payment for the purpose of cancelling enforcement
action—see sections 101 and 123. The amount of the fine includes
enforcement costs—see section 57 (4).
83Satisfaction of fine by
community service
(1)
When a fine defaulter who is subject to a
community service order under this Division duly complies with the order, the
fine concerned is taken to be satisfied.
(2)
When a fine defaulter who is subject to a
community service order under this Division duly serves part of the number of
hours of community service work to be served under the order, the fine
concerned is taken to be satisfied by the amount calculated at the rate of $15
for each hour of community service work actually served.
84Suspension of orders during
imprisonment or detention
(1)
If a fine defaulter who is subject to a community
service order under this Division is imprisoned while the order is in force,
the order is suspended during that period of imprisonment. The period that the
order is to be in force is extended, and not reduced, by the period that the
order is suspended.
(2)
A fine defaulter is imprisoned for the purposes
of this section if the fine defaulter is:
(a)
in a correctional centre on remand or pursuant to
a sentence of imprisonment, or
(b)
in a detention centre (within the meaning of the
Children (Detention Centres) Act 1987)
on remand or pursuant to a detention order.
s 84: Am 1998 No 35,
Sch 1 [29] [30]; 1999 No 94, Sch 4.23 [2]; 2010 No 48, Sch 5.10
[2].
85Provisions relating to
orders
(1)
An appeal does not lie in respect of the making
of a community service order under this Division or the failure to make such
an order.
(2), (3)
Note—
Provisions of the Children
(Community Service Orders) Act 1987 apply to the order if
the fine defaulter is a person to whom that Act applies. In any other case,
provisions of Part 5 of the Crimes
(Administration of Sentences) Act 1999 apply to the
order.
s 85: Am 1999 No 31,
Sch 2.15 [1]; 2003 No 40, Sch 2.13 [2]; 2004 No 43, Sch 1
[38].
86Revocation of community
service order
(1)
The Commissioner may revoke a community service
order made under this Division if satisfied that the fine defaulter who is
subject to the order has failed, without reasonable excuse, to comply with the
order or the requirements imposed with respect to the order by or under the
Crimes (Administration of Sentences) Act
1999 or the Children
(Community Service Orders) Act 1987 as the case
requires.
(2)
The Commissioner is not to revoke an order under
subsection (1) unless the relevant assigned officer (within the meaning of
that Act) has reported the breach to the Commissioner. The Commissioner may
decide not to revoke an order following the report of a breach of the order to
the Commissioner.
(3)
The Commissioner may revoke a community service
order made under this Division if satisfied, following a report by the
assigned officer, that the fine defaulter is not capable of performing work
under the order or is otherwise not suitable to be engaged in such
work.
(4)
The Commissioner may, when revoking an order,
also revoke other community service orders that have been made against the
fine defaulter.
(5)
Notice of the revocation is to be served on the
fine defaulter. The notice may be served in the same way as notice of a fine
enforcement order may be served.
(6)
The fine defaulter may, within the time specified
in the notice, apply in writing to the Commissioner for a review of the
revocation. The Commissioner may, if satisfied that the order was not breached
or that the breach should be excused, reverse the decision to revoke the
community service order.
(7)
The revocation of a community service order does
not take effect:
(a)
until the expiry of the period during which an
application for review of the revocation may be made, or
(b)
if an application for review is duly
made—unless and until the application is
refused.
(8)
The revocation of an order (or the review of any
such revocation) may be made or held in the absence of, and without notice to,
the fine defaulter.
(9)
A decision of the Commissioner under this section
is (subject to this section) final and is not subject to
appeal.
s 86: Am 1999 No 94,
Sch 4.23 [3]; 2013 No 82, Sch 1 [5] [26] [27].
Division 6Imprisonment
87Imprisonment following breach
of community service order
(1)
After a community service order is revoked under
section 86 (1), the Commissioner may by warrant commit the fine defaulter to a
correctional centre to be kept there according to the terms of the warrant for
the period of imprisonment calculated in accordance with this Division, unless
the fine defaulter sooner pays the relevant outstanding
fine.
(2)
A single warrant may commit the fine defaulter
for 2 or more periods of imprisonment if 2 or more community service orders
made against the fine defaulter have been revoked.
(2A)
A warrant:
(a)
must be in the approved form,
and
(b)
is sufficient authority for any police officer to
convey the fine defaulter to the correctional centre identified in the
warrant, and
(c)
is sufficient authority for the governor of the
correctional centre to keep the fine defaulter in his or her custody for the
period of imprisonment calculated in accordance with this
Division.
(3)
This section is subject to the other provisions
of this Division.
s 87: Am 1999 No 94,
Sch 4.23 [4] [5]; 2004 No 43, Sch 1 [39] [40]; 2010 No 59, Sch 1.12 [5]; 2013
No 82, Sch 1 [5].
88The “relevant
outstanding fine”
(1)
For the purposes of this Division, the relevant
outstanding fine at any time is the amount of the fine under
the relevant fine enforcement order that remains unpaid at that
time.
Note—
The amount of the fine includes enforcement
costs—see section 57 (4).
(2)
In calculating the amount remaining unpaid,
account is to be taken of any satisfaction of the fine by service under a
community service order under Division 5 or by service of any part of the
period of imprisonment under this Division.
Note—
The writing off of the fine or the remission of
the fine also operates as payment for the purpose of cancelling enforcement
action—see sections 101 and 123.
89Intensive correction
order
(1)
A fine defaulter who is committed to a
correctional centre by warrant under this Division may apply to the
Commissioner of Corrective Services for an order that the fine
defaulter’s period of imprisonment be served under an intensive
correction order. An application may be made in anticipation of the issue of a
warrant.
(2)
The Commissioner of Corrective Services may, on
an application under this section, order that the fine defaulter serve the
period of imprisonment under a warrant under this Division as imprisonment
under an intensive correction order.
(3)
A fine defaulter is not eligible to serve a
period of imprisonment under an intensive correction order:
(a)
if the period of imprisonment is less than the
minimum period determined in the guidelines under section 120 as appropriate
to be served under an intensive correction order, or
(b)
if the fine defaulter is remanded to or
imprisoned in a correctional centre (including as a periodic detainee),
or
(c)
if the fine payable by the fine defaulter is for
an offence committed while serving a period of imprisonment under an intensive
correction order, or
(d)
if an earlier intensive correction order (whether
under this Act or the Crimes (Sentencing Procedure) Act
1999) has been revoked because the fine defaulter has
failed to serve a sentence of imprisonment in accordance with the requirements
of the order, or
(e)
in any other circumstances prescribed by the
regulations.
(4)
On making an order under this section, the
warrant committing the fine defaulter to a correctional centre is subject to
the terms of the order.
(5)
The decision whether or not to grant an
application under this section is at the discretion of the Commissioner of
Corrective Services, and no appeal lies against a decision not to grant an
application in a particular case.
(6)
The Commissioner of Corrective Services is to
serve notice on the Commissioner of Fines Administration of the making or
revocation of an order under this section.
(7)
The Commissioner of Fines Administration may
replace the original warrant in respect of which the order was made with a
fresh warrant in connection with the outstanding fine at the
time.
(8)
Subject to this section:
(a)
Division 1 of Part 5, section 67 and Divisions 3
and 4 (other than sections 72 and 73) of Part 5 of the Crimes
(Sentencing Procedure) Act 1999, and
(b)
Parts 3 and 7 of the Crimes
(Administration of Sentences) Act 1999, and regulations
made under those Parts,
apply to an intensive correction order under this
Division in the same way as they apply to an intensive correction order under
section 7 of the Crimes (Sentencing Procedure) Act
1999.
(9)
In the application of those provisions to an
intensive correction order under this section, a reference in those provisions
to a court is taken to be a reference to the Commissioner of Corrective
Services.
(10)
The functions of the State Parole Authority under
Part 7 of the Crimes (Administration of Sentences)
Act 1999 with respect to the revocation of intensive
correction orders are, in relation to an intensive correction order under this
Division, to be exercised by the Commissioner of Corrective
Services.
s 89: Am 1998 No 35,
Sch 1 [31]; 1999 No 94, Sch 4.23 [6]–[8]; 2003 No 40, Sch 2.13 [3]; 2004
No 43, Sch 1 [41]–[44]; 2004 No 94, Sch 2.4; 2010 No 59, Sch 1.12 [6].
Subst 2010 No 48, Sch 5.10 [3]. Am 2013 No 82, Sch 1 [28].
89AService and notice of
intensive correction order
(1)
As soon as practicable after making an intensive
correction order under this Division, the Commissioner of Corrective Services
must cause a copy of the order and written notice of the order to be served on
the fine defaulter and the Commissioner of Fines
Administration.
(2)
The notice must be in the approved form and must
include the following information:
(a)
the office of Corrective Services NSW to which
the fine defaulter must report,
(b)
the date on which, and the time at which, the
fine defaulter is first to report to that office of Corrective Services
NSW.
(3)
Two copies of the notice must be served on the
fine defaulter.
(4)
The fine defaulter must sign 2 copies of the
notice in the presence of the person by whom it was served. Of the
copies:
(a)
one is to be kept by the fine defaulter,
and
(b)
one is to be served by that person on, and kept
by, the Commissioner of Corrective Services.
(5)
An order under section 89 is not invalidated by a
failure to comply with this section or section 89B.
s 89A: Ins 2004 No
43, Sch 1 [45]. Am 2010 No 59, Sch 1.12 [4]. Subst 2010 No 48, Sch 5.10 [3].
Am 2010 No 119, Sch 1.13; 2013 No 82, Sch 1 [28].
89BProvisions relating to
service
(1)
The intensive correction order and notice may be
served on the fine defaulter only in accordance with the directions of the
Commissioner of Corrective Services.
(2)
The order and 2 copies of the notice are to be
served personally on the fine defaulter by the Sheriff or the Sheriff’s
officers or by a court bailiff authorised by the
Sheriff.
(3)
The person who serves an intensive correction
order under this Division is required to explain the order to the fine
defaulter on whom it is served.
(4)
The explanation is to be given in a language
likely to be understood by the fine defaulter and is to include information as
to the following matters:
(a)
the requirements to be complied with by the fine
defaulter under the order,
(b)
the consequences that may follow if the fine
defaulter fails to comply with those requirements,
(c)
the fact that the order may be satisfied by
payment of such part of the fine as has not been satisfied by the period of
imprisonment served under the order.
s 89B: Ins 2004 No
43, Sch 1 [45]. Subst 2010 No 48, Sch 5.10 [3].
90Calculation of period of
imprisonment under warrant
(1)
The period of imprisonment for the purposes of a
warrant under this Division is to be calculated on the basis of the amount of
the relevant outstanding fine, as follows:
(a)
the period is to be 1 day for each $120 (or part
of $120) of the relevant outstanding fine,
(b)
the period is not to be less than 1
day,
(c)
the period is not to exceed 3
months.
(2)
(3)
The regulations may increase the amount of $120
mentioned in this section and section 91. If the regulations do so, the
references to the amount of $120 in this section and section 91 are to be
construed as references to that increased amount.
s 90: Am 2003 No 82,
Sch 2.11 [1]; 2010 No 48, Sch 5.10 [4].
91Satisfaction of fine by
imprisonment
(1)
When a fine defaulter duly serves the total
period of imprisonment under a warrant under this Division, the fine concerned
is taken to be satisfied.
(2)
When a fine defaulter duly serves part of the
period of imprisonment under a warrant under this Division, the fine concerned
is then taken to be satisfied by the amount calculated at the rate of $120 for
each day actually served.
s 91: Am 2010 No 48,
Sch 5.10 [5].
92Special provision relating to
children
(1)
A fine defaulter cannot be committed to a
correctional centre or a detention centre by a warrant under this Division if
the person:
(a)
was under 18 years of age when the offence
concerned was committed, and
(b)
was under 21 years of age at the time the person
was charged with the offence or issued with a penalty notice (as the case
requires).
(2)
If a further fine enforcement order is made
against the fine defaulter and the person was 18 years of age or older at the
time the offence concerned was committed, the fine defaulter may be committed
to a correctional centre in respect of the earlier fine enforcement order
despite subsection (1) if the fine defaulter is committed to a correctional
centre in respect of that further fine enforcement
order.
s 92: Am 1999 No 94,
Sch 4.23 [9].
93Terms under warrants to be
served consecutively
(1)
If a fine defaulter is committed to 2 or more
terms of imprisonment by one or more warrants of commitment under this
Division, the terms are to be served consecutively, not
concurrently.
(2)
s 93: Am 2010 No 48,
Sch 5.10 [6].
94Terms under warrants to be
served concurrently with other non-fine default
imprisonment
(1)
A term of imprisonment (or consecutive terms) for
which a fine defaulter has been committed by a warrant under this Division may
be served concurrently with any imprisonment of the fine defaulter arising
otherwise than by any such warrant.
(2)
s 94: Am 2010 No 48,
Sch 5.10 [7].
95Execution of
warrant
(1)
If the fine defaulter who is committed to a
correctional centre by a warrant under this Division is already in a
correctional centre, the warrant may be executed by the officer in charge of
the correctional centre or a person authorised by that officer. The warrant is
executed by serving a copy of the warrant on the fine
defaulter.
(2)
Notice is not required to be given to a fine
defaulter of the proposed execution of a warrant under this
Division.
(3)
However, a police officer executing a warrant
under this Division may, in accordance with guidelines issued under section
120 or (subject to any such guidelines) issued by the Commissioner of Police,
delay the execution of the warrant to enable the fine defaulter to pay the
relevant outstanding fine or seek the cancellation of the
warrant.
(4)
A police officer is to cease executing a warrant
under this Division if the fine defaulter pays the relevant outstanding fine
(whether to the police officer or in any other manner authorised by this
Act).
(5)
The Commissioner of Fines Administration may
cancel a warrant issued under this Division if the Commissioner considers that
it is appropriate to do so.
s 95: Am 1999 No 94,
Sch 4.23 [10] [11]; 2013 No 82, Sch 1 [28] [29].
96Discharge from
custody
A fine defaulter is to be discharged from the
correctional centre to which the fine defaulter has been committed by a
warrant under this Division if the fine defaulter duly pays the relevant
outstanding fine, unless in the correctional centre in respect of another
matter.
Note—
The relevant outstanding fine is progressively
reduced by service of part of the period of imprisonment—see section
88.
s 96: Am 1999 No 94,
Sch 4.23 [12] [13].
97Regulations as to
warrants
The regulations may make provision for or with
respect to warrants under this Division, including:
(a)
the form of any such warrants,
or
(b)
the execution of any such
warrants.