Habitual Traffic Offenders

by Jonathon Taylor

Several years ago a client came to my office who had received 3 Habitual Offenders Declarations. As a result he was disqualified for 15 years in addition to the two year disqualification period imposed by the Magistrate for his most recent offence. I made an application at the Downing Centre Local Court and succeeded in having his disqualification period from 15 years to only 2 years. This article will explain the Habitual Offender legislation and the procedure for applying to have Habitual Offender Declarations quashed.

Roads and Maritime Services (RMS) will declare any driver who commits three relevant offences with a 5 year period to be a Habitual Traffic Offender. Interestingly, this includes matters that are dismissed pursuant to Section 10. Also it must remembered this disqualification is in addition to whatever disqualification the Court chooses to impose for the original offences. It is also possible to be declared a habitual offender more than once which means ten or even fifteen years off the road in addition to the Court imposed disqualification.

The problems with this type of mandatory sentencing is that it fails to take into account the personal subjective features of the offender. While a five year disqualification may be appropriate for the average habitual offender, there are offenders for whom this is unjust and disproportionate due to circumstances such as work commitments, health problems and living in a remote location without public transport.

Relevant Offences

The term “relevant offence” is defined in Section 217 Road Transport Act (NSW) 2013 to include a variety of significant traffic offences including higher level speeding such as 30 kph over and 45 kph over the limit, drink and drug driving, and negligent, reckless, furious or menacing driving. 3 of these major offences within a five year period will incur a Habitual Traffic Offender Declaration. A fourth major offence will incur a second Declaration which means that the motorist will face an addition al 10 years off the road in addition to any Court ordered disqualifications.

Application to Quash Habitual Offender Declaration

Section 220 of the Road Transport Act (NSW) 2013 gives the Court the discretion to quash the Habitual Offender Declaration if “the disqualification imposed by the declaration is a disproportionate and unjust consequence having regard to the total driving record of the person and the special circumstances of the case”

However, the Court must give its reasons for doing so. Which means it is up to the lawyer to provide those reasons to the Court – with appropriate supporting material. This will include character references from family members, employers and medical practitioners to demonstrate that the five year disqualification is “disproportionate and unjust in the special circumstances of the case”.

Right of Appeal

Section 220 (3) Road Transport Act (NSW) 2013 provides that the outcome of an Application to Quash and Habitual Offender Declaration at Local Court cannot be appealed to the District Court. While this may seem at first to be quite harsh it should also be remembered that there is no limit to the number of times an offender can apply to have the Habitual Offender Declaration quashed. This means that if one Magistrate says no, then the offender can wait 3 months and try again. It may even be wise to try at a different Local Court if the first magistrate adopted a harsh or negative attitude to the offender.

Lawyers can often be criticised for pursuing these kind of tactics. Respectfully it is submitted that critics – whether in the media or elsewhere do not understand the purpose of the legislation. These provisions do not aim to ruin people’s lives by preventing them finding employment or caring for themselves and their family. The aim is to change people’s behaviour to reduce the danger of harm to themselves and other road users. This often occurs simply with the passage of time as the person develops and matures.

Conclusion

If you, or anyone you know needs assistance with have a Habitual Offender Declaration or Declarations removed – please contact Jonathon Taylor barrister-at-law on (02) 9024 0530 at any time.



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