MORE people could have low-level offences added to their criminal records and charities could lose millions of dollars as a result of a ruling that courts can no longer direct offenders to donate to charity.
Supreme Court Justice John Dixon ruled on Tuesday that a magistrate had made a mistake in ordering a man to donate to a food van for the homeless. The judge said that the magistrate in question lacked the power to make the donation a condition of his release under the Sentencing Act.
This was the first legal challenge to the long-standing practice - in which the court orders those guilty of minor crimes to donate to charity or distribute money to a charity via the court fund - since the law was introduced in 1991.
The decision means that all court-ordered payments will now to be treated as fines, which typically go to consolidated revenue. It also limits the range of sentencing options for judges and magistrates.
Ellie Mansour, a director of food company Melbourne Chef, pleaded guilty in 2011 to selling unsuitable food in breach of the Food Act, which can attract a $40,000 fine.
Last year, the court released him without conviction provided that he promised to make a $2500 donation to St Vincent de Paul's food van for the homeless.
Melbourne City Council appealed against the decision in November, arguing that the court did not have the authority to compel offenders to donate directly to charity as a condition of a fine. It submitted that if it did not go through the court fund, the council should receive the money.
''Direct donations like the one ordered in [this case] are not regulated and avoid the operation and accountability of the Court Fund,'' a council spokeswoman said. ''The City of Melbourne will not seek costs or repayment of any monies from St Vincent de Paul.''
The spokeswoman would not comment on the judge's finding that all court-ordered charity donations would no longer be possible.
The chairman of the Victorian Criminal Bar Association, Remy van de Wiel, QC, said that many court-ordered donations would now be unenforceable, including some retrospectively.
People guilty of summary offences would also be more likely ''to have convictions recorded against them … so the sooner the practice is reinstated the better off citizens who commit minor offences and people in need of charity are,'' he said.
Justice Dixon said that offenders contributed ''many hundreds of thousands, possibly millions of dollars'' a year to the court fund and charities.
The judge said charitable donations were considered a ''long-standing'' option for adjourned undertakings of lower level offences.
Given the ''history and significance of the court fund'' the lack of power in the law may be ''an unintended consequence of reforms to sentencing, but that is a matter for others'', he said.
PilchConnect, a legal service for non-profit organisations, appeared as a friend of the court. PilchConnect director Juanita Pope called for the state government to restore the practice under the law.
''It works for the rehabilitation of offenders who can make a meaningful contribution back to the community, and it supports Victoria's charities,'' she said.
A spokesman for Attorney-General Robert Clark said the government would examine the decision and its implications, and whether amending legislation was needed.