As amended to Road Transport Amendment (Demerit Point Reduction Trial) Act 2023. Commenced 11 August 2023. Current to 11 August 2023.

Section 200(1): Proceedings for an offence against the road transport legislation are to be dealt with summarily before the Local Court or the Supreme Court in its summary jurisdiction.

Section 200(2): The maximum monetary penalty that may be imposed by the Local Court for an offence against a provision of the road transport legislation is 100 pu or the maximum monetary penalty provided for the offence (whichever is less). However, for an offence against s 188(1) or (2), or s 189(4) (failing to nominate or verify, or falsely nominating, person in charge of vehicle for camera recorded offence), the maximum monetary penalty is 200 pu or the maximum monetary penalty provided for the offence (whichever is less): s 200(3).

Section 202(1), and cl 165 of the Road Transport (General) Regulation 2021, indicate the offences which, notwithstanding the Criminal Procedure Act 1986 or any other Act, may be commenced no later than two years after the date the offence was alleged to be committed. This provision only applies to an offence alleged to have been committed after 27 October 2020: Sch 4, Pt 10(5).

Section 6 provides:

All offences under the rules carry a maximum pecuniary penalty of 20 pu except for the following:

Section 4(1) provides:

Under s 204(1) a court that convicts a person of an offence against the road transport legislation may, at the time of conviction, order the disqualification of the person from holding a driver licence for such period as the court specifies. Section 204 is subject to any provisions for the imposition of minimum or mandatory disqualifications under the Act: s 204(3A). In determining a disqualification period, the court is to consider whether or not to vary an automatic disqualification period in accordance with the relevant provisions. Not doing so is a failure to exercise jurisdiction: Pearce v R [2022] NSWCCA 68 at [56]–[57] in respect of s 205(3)(d)(ii).

Automatic disqualifications for prescribed concentration of alcohol (“PCA”) and other major driving offences are provided for in s 205.

Section 205A sets out the disqualification periods for particular offences of driving while disqualified, cancelled or suspended, or unlicensed driving in ss 53 and 54 including for disqualified driving offences arising from the non-payment of fines. None of these are “major offences” under the Act.

Mandatory disqualifications for speeding offences are dealt with in the Road Rules 2014 including offences involving speeds of more than 45 kms and 30 kms per hour over the limit: r 10-2(3), (5).

A second or later consecutive disqualification period is brought forward if an earlier disqualification period is annulled, quashed, set aside or varied so that there is no hiatus period: s 206.

Where a driver licence has been suspended, the court is required to take into account the period of suspension when deciding the period of disqualification: s 206B(2); see Police suspension of driver licence — ss 224 and 206B, below.

A disqualification to hold a driver licence in another Australian jurisdiction operates as a disqualification in NSW: s 207(2).

A disqualification period commences on the date of conviction unless the court orders a later date: s 207A.

Note:

This means disqualification periods for a number of offences are not cumulative unless ordered by the court. The Second Reading Speech for the Road Transport Amendment (Driver Licence Disqualification) Act 2017 which introduced this amendment provides that this will “provide for multiple disqualifications … to operate concurrently … unless otherwise ordered”.

Section 206A applies to an offender who is disqualified from holding a driver licence and is sentenced to full-time imprisonment for:

Under s 206A, unless the court orders otherwise, when an offender is sentenced to imprisonment for a “major disqualification offence” the relevant period of licence disqualification (whether an automatic disqualification period or some other disqualification period ordered by the court) is extended by the period of imprisonment served for that offence after the commencement of the disqualification, so that in effect the offender is subject to the period of licence disqualification upon release. If a “major disqualification offence” is one of a number of offences dealt with by imposing an aggregate sentence, the sentence for the purpose of determining the period by which the disqualification is extended is the aggregate sentence: Gray v R [2018] NSWCCA 39 at [43]–[44].

The section operates automatically. Accordingly there is no need to pronounce a commencement date for the disqualification period.

Where a notice of suspension by police has issued under s 224, the court must take into account the period of suspension when deciding whether to make any order under s 206B(2). Section s 206B(4) provides that the period of suspension together with the period of disqualification can be taken together to satisfy all or part of any mandatory minimum period of disqualification required to be imposed on conviction. Therefore, when varying an automatic disqualification period, the period of suspension must be counted towards any disqualification imposed: Pearce v R, above, at [55]; see also s 206B(2), (4).

Also see Road Rules 2014, r 10-2(4), (5A) for taking a suspension into account when imposing a disqualification for speeding offences >30kms/hr and >45kms/hr.

Section 224 provides that a police officer may suspend immediately, or within 48 hours, the driver’s licence of a defendant charged with specified offences.

The driver may appeal to the Local Court: ss 266, 267. However, lodging an appeal against such a notice does not stay the suspension: s 63(2A) Crimes (Appeal and Review) Act 2001. The Local Court may hear and determine the appeal and may vary or revoke the suspension. Section 268(5) provides that in determining such an appeal, the Local Court is not to vary or set aside such a suspension unless it is satisfied that there are exceptional circumstances justifying a lifting or variation of the suspension. The court is not, for the purposes of any such appeal, to take into account the circumstances of the offence with which the driver is charged.

Note:

Section 207(3) requires the disqualified person to surrender his/her licence to the court if in his/her immediate possession, or to Transport for NSW as soon as practicable. The court should direct the surrender, or notify the defendant of his/her obligation. It should also be made clear to him/her that a new licence must be applied for before he/she drives again at the expiry of the disqualification period as the disqualification operates to cancel permanently any driver licence held by the person.

Section 10 Crimes (Sentencing Procedure) Act 1999 is not available to a defendant for an “applicable offence” if, at the time of or during the 5 years before the court’s determination, a previous s 10 has been applied in relation to another “applicable offence”. Applicable offences are set out in s 203(2) and include:

Section 205(4) — where multiple major offences arise out of the one incident, to determine whether the conviction is a first or second conviction, the other conviction(s) shall be disregarded and the maximum automatic disqualification in respect of all offences shall be 3 years for a first conviction and 5 years for a second conviction. The court may determine a longer period or a shorter period of not less than 12 months and 2 years respectively.

Section 205(4A) — where multiple major offences arise out of the one incident and include a combined alcohol and drug driving offence under s 111A(1), (2) or (3), to determine whether the conviction is a first or second conviction, the other conviction(s) shall be disregarded and the maximum automatic disqualification in respect of all offences shall be 4 years for a first conviction and 6 years for a second conviction. The court may determine a longer period or a shorter period of not less than 18 months and 3 years respectively.

In making this determination, alcohol or other drug related driving offences dealt with by way of penalty notice are included: s 9(2A).

Part 7.4, Div 3 concerning habitual traffic offenders was repealed with effect from 28 October 2017.

However, a person declared to be a habitual traffic offender under s 217 (rep) before the scheme was abolished may apply to have that declaration quashed. Section 220 as in force immediately before 28 October 2017 continues to apply (set out below). The Local Court may determine the application even if it was not the court that convicted the person of the relevant offence: Sch 4, cl 65(2A).

A declaration that a person is an habitual traffic offender may be quashed if the court determines the disqualification imposed is a disproportionate and unjust consequence having regard to the person’s total driving record and the special circumstances of the case: s 220(1).

If the declaration is quashed, the court must give reasons: s 220(2).

An eligible person subject to a licence disqualification may apply to the Local Court to have their driver licence disqualification removed provided they have been offence free for the specified period (s 221B) (and are otherwise eligible):

Sections 227–228 provide for the making of such orders.

A summary of this judgment, delivered by the Court of Criminal Appeal on 8 September 2004 appears toward the end of this chapter: Application by the Attorney General Under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305.

Part 7.4 Div 2 Road Transport Act provides for a mandatory alcohol interlock program for offenders convicted of certain alcohol-related offences. When Pt 7.4 was introduced on 1 February 2015, s 203 relating to limitations on the application of s 10 Crimes (Sentencing Procedure) Act 1999 to certain offences under the Road Transport Act 2013 was not amended.

Section 210: A court that convicts a person of a “mandatory interlock offence” must, at the time of conviction, make one of the following orders in respect of the person:

Section 209 contains all definitions relevant to Pt 7.4 Div 2. In particular, a “mandatory interlock offence” is an offence against s 110(1)–(3) (driving with the novice, special or low range prescribed concentration of alcohol), that is a second or subsequent offence by the offender for any other alcohol-related major offence. Further, s 209 defines first, second and subsequent offences of high and middle range drink driving (s 110(4) and (5)), combined alcohol and drug driving (s 111A(1), (2) and (3)), driving under the influence of alcohol or any other drug (s 112), and refusing breath analysis or to provide samples (cll 16 and 17, Sch 3), as mandatory interlock offences.

“Mandatory interlock order” is defined in s 209 (set out above).

Note:

• Second offence: where previously convicted of this offence or any major offence (s 4), or dealt with by penalty notice for an alcohol or other drug related driving offence, within 5 yrs: s 9. “Dealt with” is defined as it being paid or partly paid, or if not paid that no election has been made to court and the time for such election has lapsed: s 4(5).

• Alternative verdicts: For PCA offences and combined drug and alcohol driving offences, alternative verdicts are available to certain lesser offences: ss 110(6), (7) and 111A(5).

Note:

There is no mandatory disqualification (only discretionary) for a second offence of driving without a licence if the driver has held a licence within the past five years: see s 53(1).

Currency

As amended to Road Transport Legislation Amendment (Electric Skateboards and Bicycles) Regulation 2023. Commenced 24 February 2023. Current to 24 February 2023.

Currency

As amended to Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Act 2022. Commenced 1 February 2023. Current to 1 February 2023.

Note:

The Act is dealt with in more detail under a separate entry in Specific Penalties and Orders.

Currency

As amended to Statute Law (Miscellaneous Provisions) Act 2023. Commenced 14 July 2023. Current to 14 July 2023.

Serious driving offences

Note:

Where applicable, the maximum penalty for an offence dealt with on indictment is indicated in square brackets in the Penalty (Max) column.

For the definition of “major offence”, see s 4.

For licence disqualifications for major offences, see s 205.

The Criminal Procedure Regulation 2017 (commenced 1 September 2017) provides for the participation by traffic offenders in approved traffic courses: cll 100–103. The program commenced on 28 March 2008 (under the former Criminal Procedure Regulations 2005, cl 19B, Sch 6). The Secretary may approve a course of study or training for all Local Courts or for only such Local Courts as may be specified in the order approving the course: cl 104(3). The Traffic Offender Intervention Program provides details of the approved course providers. Approved traffic courses must comply with specified guidelines.

Under the regulations, the court may, prior to sentencing, refer a traffic offender to participate in the traffic offender intervention program if the offender consents: cl 99(1). A traffic offender is a person who has pleaded guilty to, or has been found guilty of, a traffic offence under the road transport legislation (as defined in s 6 Road Transport Act 2013) before the Local Court and has not been sentenced: cl 99(1)(b).

The objective of the program is to provide a community based road safety educational program for referred traffic offenders:

The Local Court is to have regard to the following matters in determining whether a traffic offender is suitable for participation in the program:

The court is also to consider:

The approved traffic course provider must provide the court with a report on the extent to which the offender has complied with the requirements of the course at no later than the date fixed by the court for the offender’s re-appearance to finalise the matter: cl 102.