A common question I get asked is, when the Court is considering on a penalty to give for a NSW traffic offender, can an interstate traffic conviction be taken into account when the Magistrate is considering an appropriate sentence?
The Courts in NSW are currently disregarding previous interstate traffic convictions, including drink driving, that have been committed in other states. This generally means, you are likely to receive a lighter outcome by the Magistrate, and a better chance at avoiding a conviction and disqualification.
In order for the Courts in NSW to be required to have regard to an interstate traffic offence, the Traffic Law in NSW would require the following to be satisfied:
- For the previous interstate traffic offence to have been committed within 5 years from the current NSW traffic offence; and
- For the previous interstate traffic offence to be either “an equivalent offence” to the current NSW traffic offence, or a “major offence” defined under the Road Transport Act 2013 (NSW).
The current view held by Courts in NSW is that an interstate traffic offence is not “an equivalent offence”, nor is it a “major offence”.
What is a “Major Offence”
s 4 Road Transport Act 2013 (NSW) defines a “major offence” to include, “any other crime or offence that, at the time it was committed, it was a major offence for the purposes of this Act, the Road Transport (General) Act 2005, the Road Transport (General) Act 1999, or the Traffic Act 1909.
What is an “Equivalent Offence”
Section 9(5)(e) of the Road Transport Act 2013 (NSW) expresses that an “equivalent offence” includes, “a provision of this Act or the statutory rules declares the offence to be an equivalent offence to another offence for the purposes of this section.
Section 9(6) of the same legislation expresses, “without limiting subsection 9(5)(e), an offence against a law of another jurisdiction may be declared to be an equivalent offence for the purposes of this section”.
You are charged with a mid range drink driving offence under s 110(4)(a) of the Road Transport Act 2013 (NSW). Within the last 5 years, you also have a previous drink driving conviction in another state of Australia, say, Queensland.
Whilst there are two views on this, the current and accepted view in NSW is, the Court will disregard your previous Queensland interstate drink driving conviction, when sentencing you for a punishment in the current NSW drink driving offence. It takes this view for two of the following main reasons:
- The previous interstate drink driving conviction is not “an equivalent offence” to the current NSW offence; and
- The previous interstate conviction of drink driving is not considered a “major offence”.
What are the Benefits if NSW Courts Disregard Previous Interstate Convictions
If the Court is to take into consideration your previous interstate drink driving conviction, the penalties for the NSW drink driving offence you will face are harsher, and include:
- Maximum penalty of up to $3,300 fine and/or imprisonment of up to 1 year; and
- A Licence disqualification for a minimum of 6 months and a maximum of 9 months, plus a period of 2 years thereafter in which you can drive, but only with an interlock device installed in your vehicle. Having an interlock device installed is an expense you must incur.
- If your excluded from the interlock device scheme, then you will receive an automatic licence disqualification period of 3 years, although the Court can reduce this to a minimum of 1 year. You can be excluded from this if you have a medical condition that prevents you from providing a breath sample, or you don’t have access to a vehicle to install an interlock device.
If the Court does not take into consideration your previous interstate drink driving conviction, the penalties for the NSW drink driving offence you will face are much lighter, and include:
- You will not be subject to any interlock device, but there is an automatic licence disqualification period of 1 year, although the Court can reduce this to a minimum of 6 months; and
- A maximum penalty of up to $2,200 fine and/or imprisonment of up to 9 months.
You will avoid a conviction and disqualification period, if the Court ends up giving you a section 10 dismissal or the new Conditional Release Orders (CRO).
The important factor here is, generally, the chances of getting a s10 or CRO can be significantly increased, in your favour, if the court doesn’t take into account that previous interstate drink driving conviction. This means, there are higher chances of avoiding any disqualification period and conviction.
Just because the accepted view is the one that favours you, doesn’t mean a particular Magistrate can’t hold the other view to have regard to it. It is a matter of interpretation of the Legislation.
Arguments in Favour of NSW Courts to Have Regard to Your Previous Interstate Offence
The Court can, against your interest, have regard to the previous interstate drink driving offence, if the Magistrate forms the following other view:
- Section 4 explained above, defines “major offence” with the word “major offence”, along with a list of specific other NSW traffic offences. This leads to a circular or illogical definition. On that basis, it can be argued that “major offence” cannot mean to exclude interstate traffic offences that are the same or similar to the NSW traffic offences defined as “major offences”.
On this view, relevant to the above scenario, the previous Queensland interstate drink driving offence has an obvious similar offence of drink driving in the NSW. On that basis it is therefore a “major offence” which ought to be taken into account by a NSW court for the NSW drink driving offence on sentence. (DPP (NSW) v Beaman (2005) 64 NSWLR 634).
- The intention of the legislation, when one looks at the history of the Road Transport legislation, appears to be a move towards a national consolidated scheme for NSW. There is nothing that specifically excludes interstate offences.
Arguments in Favour of NSW Courts to Disregard Your Previous Interstate Offence
The Courts in NSW are currently disregarding previous interstate drink driving offences for the following reasons:
- Section 4 explained above specifically defines “major offences” and includes a list of traffic offences in NSW, it does not expressly refer to any interstate offences. Section 9(5)(e) and section 9(6) explained above, appears to indicate that a previous interstate drink driving offence should not be taken into account on a sentence for a NSW traffic offence. This is the way Magistrates are interpreting the NSW law at the moment.
The view taken here is, that, for NSW courts to be allowed to take into account previous interstate traffic offences (when sentencing you for the current NSW offence), parliament would have to first legislate and declare each and every interstate offence, in order for the offences in other states to apply in NSW. It does not currently do this. This now appears to be the preferred view taken by Magistrates and prosecutors in Court in NSW.
Unless the NSW traffic laws change (an often slow and complex process), people in NSW will continue to be sentenced for NSW traffic offences in NSW Courts, without there being any regard to previous interstate traffic offences. This will likely produce a more lenient punishment.