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Failure to pay Traffic Infringement Notices {not motorcycle related}

Discussion in 'The Pub' at netrider.net.au started by Justus, Jul 9, 2011.

  1. 238213-shanaka-fernandois.



    Lentil as Anything founder: Shanaka Fernando is fighting 52 road fines.

    Australia's Local Hero 2007.



    A GOOD Samaritan restaurant owner faces jail after he was exposed as a serial road menace.

    Shanaka Fernando, who created the Lentil As Anything restaurants placed around Melbourne, racked up 52 infringements,
    many of which he has blamed on refugees and employees. And while he admits "being stupid" for his poor driving record,
    he says he was too busy "helping heroin addicts" and the needy to pay his fines.

    Mr Fernando faced Melbourne Magistrates' Court over 52 unpaid fines. They included speeding, running red lights, using a
    mobile phone while driving, driving an unregistered vehicle and 15 parking infringements.

    It was ruled he must pay $14,428.50 or be jailed.

    Mr Fernando's restaurants have become a hit as they do not charge for meals, rather allowing patrons to choose the price
    they want to pay. While the restaurants receive considerable donations, Mr Fernando says money is tight. He claims he
    does not pay himself a wage and lives "off no money". But Magistrate Jelena Popovic said Mr Fernando had demonstrated
    no desire to obey the rule of law.

    Mr Fernando applied to have the charges dismissed, citing financial hardship.

    But Ms Popovic said: "His lifestyle choice is that he has chosen not to participate in the day-to-day economy. He chose not
    to pay the fines. He took no action whatsoever to convert the fines to community work or to make any form of payment.
    He is clearly of the view that there should be no consequence to his repeat offending."

    She also questioned Mr Fernando's "credo". "What is of concern is that Mr Fernando's moral credo does not extend to
    upholding the laws of the state of Victoria," she said.

    But Mr Fernando told the Herald Sun the magistrate may have "shown him no compassion" because of his profile.

    "Having these awards and a profile in the community makes me a target for judges and people who are wanting to have
    kudos for their position of authority," he said. "The situation is a combination of me lending my car to people and me not
    being as careful as I should. I experience life in the community like a frontline soldier, so I don't find myself giving enough
    time and attention to things like parking fines, and I don't have the money to pay them.

    "If I have to (go to jail) then I will ... but there is an irony here, that I have a judge telling me that I have a debt to the
    community, but if I collected a wage like a normal restaurant then I would have clearly earned a million dollars," he said.



    Justus.
     
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  2. warrants.

    Anthony Fernando: Summary of Enforcement Warrants.




    Justus.
     
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  3. IN THE MAGISTRATES' COURT OF VICTORIA
    AT MELBOURNE


    CRIMINAL DIVISION

    In the matter of
    ANTHONY FERNANDO



    MAGISTRATE: Jelena Popovic, Deputy Chief
    WHERE HELD: Melbourne
    DATE OF HEARING: 31 March 2011
    DATE OF DECISION: 15 April 2011
    CASE MAY BE CITED AS: In the matter of Fernando


    Catchwords: Penalty Enforcement Warrants –
    s. 160 of Infringements Act 2006s. 35 of Interpretation of Legislation Act 1984.


    APPEARANCES:
    For the Respondent

    Counsel Solicitors
    Ms Da Motta
    Victoria Legal Aid



    HER HONOUR:

    OUTLINE OF THE MATTER BEFORE THE COURT


    1. Mr Fernando appeared before the Court following the execution of 52 Infringement Warrants. There were two files
    before me: File B10347109 involved 51 Infringement Warrants totalling $13,773.30. The term of Imprisonment in Lieu
    of the outstanding fine at the current rate of one day per each $119.45 of the outstanding debt amounts to a default
    imprisonment of 116 days. File B10349875 involved one fine of $655.20 in default 6 days imprisonment. Ms Da Motta
    appeared on his behalf. There were no other appearances.

    2. The fines were issued between 15 April 2006 and 30 June 2010.

    3. The fines consisted of:
    • Two were issued for driving an unregistered vehicle
    • Fifteen parking infringements
    • Four speeding infringements
    • One infringement for ‘breaching licence condition’
    • Two infringements for using a mobile phone while driving
    • Twelve infringements were issued for driving on a toll road while being unregistered
    • Eight were issued for driving through red lights
    • Eight were issued for failing to wear a bicycle helmet

    4. Ms Da Motta submitted that I should exercise my discretion pursuant to s. 160(3) of the Infringements Act 2006 and
    discharge the outstanding fines in full.

    5. Section 160(3) provides:

    “If the Court is satisfied that, having regard to the infringement offender's
    situation, imprisonment would be excessive, disproportionate and unduly harsh
    the Court may—

    (a) order the infringement offender to be imprisoned for a period that is up to
    two thirds less than one day in respect of each penalty unit, or part of a penalty
    unit, of the penalty units to which the amount of the outstanding fines is an
    equivalent amount; or

    (b) discharge the outstanding fines in full; or
    (c) discharge up to two thirds of the outstanding fines; or

    (ca) discharge up to two thirds of the outstanding fines and order that the
    infringement offender be imprisoned for a period that is up to two thirds less
    than one day in respect of each penalty unit, or part of a penalty unit, of the
    penalty units to which the undischarged amount of the outstanding fines is
    an equivalent amount; or

    (d) adjourn the further hearing of the matter for a period of up to 6 months; or

    (e) make a community based order under Division 4 of Part 3 of the Sentencing
    Act 1991.”



    SUBMISSIONS AND MATTERS PERTINENT TO MR FERNANDO


    6. Ms Da Motta submitted that unlike section 160(2), I was not required to have established before me special circum-
    stances such as cognitive impairment, substance dependency, mental illness or homelessness. In order to exercise my
    discretion to discharge the fines, I need to be satisfied with regard to Mr Fernando’s situation, “imprisonment would be
    excessive, disproportionate and unduly harsh”. Ms Da Motta relied on Mr Fernando’s altruism and lack of formal income
    to support her submission.

    7. Mr. Fernando is the founder of an organisation which, among other things, is responsible for ‘Lentil as Anything’
    Restaurants.

    8. The philosophy of the restaurants is:

    “Lentil as Anything is a unique not for profit community organisation. At our core
    are the pay as you feel restaurants where customers give what they feel the food
    is worth and have the opportunity to donate towards the philosophy.

    We would love to welcome you as part of our community. We extend our hospitality
    offering you vegetarian cuisine cooked with love and gratitude. Our unique financial
    model functions independent of any government funding and we rely on your generosity
    in order to pay our rent, utilities, wages and stock.

    Make an agreement with your conscience on what is reasonable, how much you
    enjoyed your food, our philosophy and our community. Be part of a unique
    financial model that is centred on the values of trust, generosity and respect that
    gives people the opportunity to eat out and be social regardless of their financial
    situation.”


    9. It was put that Mr Fernando lives by this philosophy; namely, that he does not have any form of income and does not
    draw from the business. The business pays for his rent and utilities but he is not remunerated by any other means.

    10. The organisation has three ‘Lentil as Anything’ restaurants and operates a school canteen.

    11. Mr Fernando was called to give evidence and made an affirmation.

    12. He attested that the organisation employed 90 people from disadvantaged grounds and refugees and that any money
    raised went directly to assist them. The organisation is involved in a partnership with the Department of Justice to assist
    refugees with driving courses. Generally, however, the business runs at a loss and just covers costs.

    13. In relation to financial matters, Mr Fernando attested that his rent, utilities and internet were covered by the organis-
    ation, but nothing else. He gave evidence that his bank account was ‘frozen’ two months ago and that he no longer operates
    a bank account.

    14. Mr Fernando gave contradictory evidence that from time to time he received a stipend; but then retracted that state-
    ment and said that he has never received a stipend.

    15. In relation to the financial status of the organisation, Mr Fernando attested that it is a ‘not for profit organisation’
    and the income is utilised merely to keep it afloat and to pay suppliers. The business records a debt and no income tax
    (or GST) is payable. The organisation also receives ‘in kind’ support from social workers, doctors, lawyers and local
    businesses who assist to keep the organisation afloat and assist with the crisis accommodation the organisation endeavours
    to provide.

    16. When I asked Mr Fernando directly about his ability to live without an income, he responded that he declines to draw
    an income from the organisation in order that he may make any money made by the business available to other people.
    Mr Fernando was not able to dispute that he could have drawn funds from the organisation to pay fines.

    17. In relation to the offences, Mr Fernando attested that he does take these matters very seriously. However, he
    confirmed that he did not attend to any of these matters at any time since the infringements were issued. He attested
    that no longer drives and that his only transportation is his bicycle. When I asked him to explain why he rode his bicycle
    without a helmet, he attested that when bicycles were donated to his organisation, he gave his helmet to other people
    who rode the donated bicycles to ensure their safety. I did not accept that Mr Fernando assisted with the collection of
    donated bicycles on eight occasions and provided his helmet to others on each of those occasions.

    18. Prior to Mr Fernando giving evidence, Ms Da Motta submitted that some of the driving offences were attributable
    to disadvantaged or refugee employees, and that due to their impecuniosity, he did not ask them to pay the fines. Mr
    Fernando did not give any evidence in relation to this point. Mr Fernando did not particularise which of the fines were
    allegedly attributable to the driving of other persons.

    19. It was not submitted on behalf of Mr Fernando or attested to by him that he had made any effort whatsoever to
    address the outstanding debt by making any financial contribution or by converting the debts into community work by
    way of Community Based Orders. It was suggested that Mr Fernando has devoted his work to ‘community work’ thus it
    was unnecessary for him to formally engage in Community Based Orders.

    20. Two character references were tendered at the hearing:

    • Rae Talbot, Yarrilinks Manager and Founder, Project manager, Linking
    Landscapes, Wimmera Catchment Management Plan, Yarriambiack Shire, dated 29 March 2011.

    Bill Sykes, MP Member for Benalla, dated 21 March 2011.

    21. Two letters of thanks were tendered:

    • Rosie Sheather, on behalf of the organising committee, Victorian Landcare Network Forum, November 2007.

    Joanna Gash, Member for Gilmore, Gilmore Youth leadership Forum, October 2008.

    22. Additionally, a scanned undated newspaper article in relation to the presentation to Mr Fernando of the Local Hero
    Award in the 2007 Australian of the Year Awards and letters of congratulations of Lindsay Tanner, Federal Member for
    Melbourne
    dated December 2006 and Andrew Robb MP dated November 2006 were also tendered.

    23. It is obvious that Mr Fernando is held in high regard by many members of the community, including prominent
    Australians, for the significant contribution he has made and high principles to which he aspires. What is of concern is
    that Mr Fernando’s moral credo does not extend to upholding the laws of the State of Victoria.

    24. Ms Da Motta did not make any submissions, and Mr Fernando did not give evidence of any hardship which would be
    caused to him or his family if he was to be incarcerated.

    25. No specific submissions were made in relation to incarceration being “excessive, disproportionate or unduly harsh".
    My interpolation of Ms Da Motta’s submissions was firstly: that Mr Fernando did not have capacity to pay fines due to
    his lifestyle choice; and, secondly, that his enormous contribution to the community, and that these factors combined
    ought to absolve him from paying his outstanding debt.


    ANALYSIS OF LEGISLATION


    26. Section 3(3) of the Infringements Act specifies that a magistrate’s discretion to discharge the debt is not limited to
    those persons who come under the definition of “special circumstances”. This provision was an amendment to the
    Infringements Act “to clarify that the definition of “special circumstances” does not fetter the discretion of the Magistrates’
    Court.” This is further explained by Minister Madden in the Second Reading Speech on 1st June 2006.

    27. Section 35 of the Interpretation of Legislation Act 1984 provides:

    “In the interpretation of a provision of an Act or subordinate instrument—

    (a) a construction that would promote the purpose or object underlying the Act
    or subordinate instrument (whether or not that purpose or object is expressly
    stated in the Act or subordinate instrument) shall be preferred to a construction
    that would not promote that purpose or object;”


    28. Clearly, a purposive construction of an Act is to be applied. I have endeavoured to source information in order to
    ascertain the purpose of the Infringements Act. Section 1 of the Infringements Act outlines the Act's purposes and
    does not set out a ‘framework’, but this is ascertained through the use of extrinsic Parliamentary materials and the
    Attorney-General’s Guidelines.

    29. In his Second Reading Speech on 16 November 2005, the Attorney-General stated that the purposes of the Act
    were to improve the community's rights and options in the process and to better protect the vulnerable inappropriately
    caught up in the system, and also to provide the additional enforcement sanctions to motivate people to pay fines, to
    maintain the integrity of the system.

    30. Whilst the Act provides more appropriate options for people with special circumstances, it also provides for firmer
    enforcement sanctions for the general community. Parliament intended that these enforcement mechanisms would
    counteract the perception that compliance with the Act is optional. The Act was also aimed towards broadening
    magistrates’ powers in open court hearings after execution of enforcement warrants.

    31. The Attorney-General set out the new elements of the system, two of which were:

    “measures at various stages, including internal review stage, to filter people out
    of the system who cannot understand or control their offending behaviour (for
    example people with mental or intellectual disabilities, the homeless, people
    with serious addictions)”


    and

    “firmer enforcement measures to improve deterrence in the system, reducing
    ‘civil disobedience’ and the undermining of the rule of law”.


    32. The Attorney-General’s Guidelines reiterate the principles of the Act in more detail. The Guidelines also set out in
    detail the considerations in relation to Special Circumstances.

    33. There was considerable parliamentary debate in relation to the Act. For example, in his speech, Mr Wells, the
    member for Scoresby, said:

    “Having a system where we fine people rather than send them to jail is based on a
    community standard that we all agree with, but the problem is that if people refuse to
    pay their fines, the credibility of fines is weakened. What is even worse, if there is a
    perception out there that you can get away without paying your fines or that it is easier
    to go to court and be given a Community Based Order, the whole infringement system
    is undermined.”


    34. Throughout the debate, many Members spoke in favour of the Bill and highlighted the importance of the provisions
    with respect to Special Circumstances, reiterating the desirability of taking the Special Circumstances of mental illness,
    homelessness and drug dependency into account.

    35. With respect to financial hardship, the debates in Parliament referenced the Act’s inclusion of instalment payment
    plans, and the empowerment of enforcement agencies to consider fines on the grounds of proven financial hardship.
    In light of this aspect of the infringements regime as set out in the Act, an infringement offender is precluded from
    arguing that there are no provisions of the financial hardship in the Act. These options should be utilised by approaching
    the relevant enforcement agencies. In this case, there is no evidence that Mr Fernando made any effort to contact any
    of the relevant prosecuting authorities or took any action whatsoever.

    36. It is my view that s.160(3) of the Infringements Act should be read in line with its purposes, namely that there be
    increased protection for vulnerable members of our community with special circumstances, but for the rest of the
    community, that is those without special circumstances, the Act provides increased enforcement powers to ensure the
    integrity of the system.

    37. The discretion in relation to infringement defaulters without special circumstances provided for in s.160(3) must, in
    my view, be sparingly applied in order to maintain the credibility of the Infringements regime and the confidence of
    members of the community. The legislators have emphasised that magistrates have an overriding discretion in extreme
    instances of personal hardship. It would not be within the purposes of the Act to apply s. 160(3) where defaulters have
    blatantly and wilfully decided that they would neither pay the fines they have incurred not face any consequence for their
    offending.

    38. The types of scenarios which in which it may be appropriate to apply s. 160(3) could be:

    • A single parent with young children who would be placed in State care if the parent was incarcerated;

    • A sole family provider, where the family would be left destitute or at risk of dispossession in the event
    that the infringement defaulter was incarcerated;

    • Where the amount of the infringement debt has completely overwhelmed the defaulter causing him/her
    to be unable to take any action;

    • Where the defaulter experienced a prolonged period of illness but has since resumed employment.


    ORDER


    39. As previously mentioned, Mr Fernando does not suffer from any condition which would place him in the category of
    “special circumstances”. His lifestyle choice is that he has chosen not to participate in the day to day economy. Although
    his evidence was that he took these matters seriously, he has done nothing to demonstrate this assertion. He chose
    not to pay the fines. He took no action whatsoever to convert the fines to Community Work or to make any form of
    payment. He is clearly of the view that there should be no consequence to his repeat offending, and on his evidence, he
    promotes the view to others that they ought not to bear any consequences for their offending. He has not demonstrated
    any desire to obey the rule of law.

    40. Accordingly, I am not satisfied that it is appropriate to apply s. 160(3) and order that the total outstanding amount
    of $14,428.50 be paid, and that in default of payment, 122 days imprisonment be served.



    Justus.
     
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  4. Re: Failure to pay Traffic Infringement Notices

    lol failing to wear bicycle helmet? are you kidding me?
     
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  5. Re: Failure to pay Traffic Infringement Notices

    nevermind
     
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  6. "He attested that no longer drives and that his only transportation is his bicycle. When I asked him to explain why he
    rode his bicycle without a helmet, he attested that when bicycles were donated to his organisation, he gave his helmet
    to other people who rode the donated bicycles to ensure their safety.

    I did not accept that Mr Fernando assisted with the collection of donated bicycles on eight occasions and provided his
    helmet to others on each of those occasions."

    :LOL:


    Justus.
     
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  7. Re: Failure to pay Traffic Infringement Notices

    Justus, is that the level of detail normally accompanying a Magistrate Court decision?
     
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  8. Talk about anti-citizen one.

    Cmon it could be any of us. To think that amounts to 14 grand...
     
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  9. ????

    I wouldn't have thought too many would have 52 unpaid fines, but maybe you just travel in different social circles to me.
     
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  10. What makes him think he is above the law. Forget the money just put him in jail.
     
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  11. end of the day, despite his goods works for the community,
    what he did would be spread all over the news if it wasnt for a feared backlash due to them (pus he seems to be an attention whore aways playing the poor guy wanting to do good. no problem with his work, but i dont have much respect for those who go around parading their "charity" as it just means there in it for the wrong reason imo)

    imagine this was a owner of a plumbing business, who says that theses fines were employees driving his vehicle (lets assume a work van/ute) then this would be immediately turned into a witch hunt. and the public opinion would be to vilify him. imagine the headlines and the aca/today tonight chase of the evil man. there is no way that the courts would let him off. and if it was indeed what he said then there are plenty of legal avenues to write off the offences (taxi drivers share offences all the time, trading demerit points).

    just because this is a "good samaritan" doesnt mean it is any different to the above example,
    if it was indeed someone else driving then there should be a record of it and he should have had them pay the fine. or at least declare that it wasnt him drivng. but some of these offences leave me with no-doubt that he didnt have respect for the law when it came to road regulations. un-registered car, not paying tolls and not obeying traffic lights i should hope he is no longer driving. if he cant afford to pay rego then he shouldnt be driving, cant pay tolls, then dont use those roads. it looks to me like he should have had his license suspended as well and i guess that if those demerit points were tallied up he would have lost his license mutiple times and could have been done for driving un-licensed. i count 22 offences which i know carry demerit points (multiple points too mostly 3 or 4 each)
    so he should have lost his license at least 4 or 5 times

    oh and Justus im judging from your'e post that you are part of the prosecution, im interested in studying law (pursing a career) and was wondering if there is any advice you can give me. at the moment im looking into trying to head down the paralegal role as i think i would prefer to be behind the scenes doing the research then actually in a court room. but would also be interested in being involved in the prosecution or a role in the court as a judges associate (or similar position - especially the criminal courts) especially any help on pathways to these careers as at the moment im struggling to find uni and tafe courses to be a bit broad and grey in what they lead to. greatly varying between institutions. unlike say an engineering course where there are specific set pathways and its uniform among all the different learning institutions
     
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  12. Jeezuz. Didn't know Crabman had quit "My name is Earl" and moved to Oztralia
     
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  13. Yawn...who cares.
     
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