Traffic Law

Second or Subsequent Offence - Drive Disqualified or Suspended

With most serious driving offences, where someone is considered a repeat offender, the law automatically increases the penalties for the offence. More specifically and in most circumstances, if someone has previously been convicted of a serious offence within the period of 5 years leading up to the conviction for the new offence, the penalties and disqualification periods increase. But what does this mean and how does it apply to charges of driving whilst disqualified and driving whilst suspended?

Second or Subsequent Offence

If a driver is convicted of a drive whilst disqualified or drive whilst suspended offence, and it is considered a second or subsequent offence, the penalties automatically increase.

The term "second or subsequent offence" is defined in section 9 of the Road Transport Act 2013 and applies to the offences of drive whilst disqualified and drive whilst suspended. In summary, the law holds that, where a person is convicted of a drive disqualified/suspended offence ("the new offence"), it is to be considered a second or subsequent offence if:

a) within a period of 5 years prior to the conviction for the new offence the person has also been convicted of a previous offence being:

    i) a drive disqualified/suspended/cancelled or driver never licensed offence; or

    ii) a major offence, and

b) the new offence and previous offence occurred on different occasions.

A "major offence" includes:
- All drink driving offences
- All drug driving offences
- All dangerous driving offences
- Any offence where a vehicle is used to cause death or grievous bodily harm
- Menacing driving
- Predatory driving
- Police pursuit
- Failing to stop and assist after being involved in an impact that causes injury or death

An obvious example that would fall into the above category is where someone is convicted of a drink driving offence and is disqualified for a set period. Sometime later, during the period of disqualification, the disqualified driver is caught driving, charged with drive whilst disqualified and is again convicted by the Court for the offence of driving whilst disqualified. Upon conviction, the drive whilst disqualified offence becomes a "second offence" and the driver now automatically faces an automatic and minimum period of disqualification of 2 years and a maximum penalty of $5,500 and 2 years' imprisonment. Had the drive whilst disqualified offence not been a second offence, then the driver would be liable to an automatic and minimum period of disqualification of 12 months and a maximum penalty of $2,200 and 18 months' imprisonment.

In the above example, although the driver has committed his or her first ever drive whilst disqualified offence, it is a "second offence" for the purpose of the legislation and more importantly, for the purpose of the mandatory minimum disqualification period. In fact, the state of the law means that the great majority of drive whilst disqualified offences will be "second" offences, because most drivers are disqualified by Courts as a result of having committed a "major offence".

With drive whilst suspended charges, it is not necessary that someone has committed a major offence to receive a suspension. For example, a driver's licence may be suspended as the result of an exceed speed offence, accumulation of demerit points or for non-payment of fines. However, many drivers are also immediately suspended by police for the commission of a mid range or high range drink driving offence, for example. Under these circumstances, a person can well see themselves convicted of a "second or subsequent offence", depending on several factors.

Commentary

Although it is understandable that for many serious driving offences, where the offender has been convicted of one or more serious driving offences in a short period, the person should receive a harsher punishment than a person who has committed only their first major offence, when it comes to the offence of drive whilst disqualified, an unusual situation is created where the typical offender for that category of offence automatically receives the harsher punishment. The only time that a person convicted of a drive whilst disqualified charge will not be treated as a second time offender for the purpose of the increase in the automatic disqualification period and the penalties, is as follows:

- Where the person was not disqualified as a result of a previous major offence 
- Where the person was disqualified as a result of a previous major offence, but was disqualified for a period of more than 5 years and the new offence was committed after the 5 year period 
- Where the person is disqualified as a result of an habitual offender declaration and had not been convicted of a major offence in the previous 5 years 

The above scenarios are not where the typical offender lies. For that reason, it is important to advise all clients who are convicted of any major driving offence that if they drive during the disqualification period for that offence, they will be treated as a second time offender and will be liable for a minimum of 2 years' disqualification.

It is argued that the law is harsh when dealing with the charge of drive whilst disqualified. It takes someone to have a good knowledge of the road transport legislation to understand that most first time offenders for the charge of drive whilst disqualified will actually be treated as second time offenders. It may seem particularly harsh when one considers that the major offence that is taken into account to make the drive whilst disqualified charge a second offence is the very offence that leads to the disqualification in the first place.

With most drive whilst suspended charges, the offender can be treated as a first time offender. Even in circumstances where someone has committed a major offence (such as drink driving), has been suspended by police and then drives whilst suspended before the major offence is dealt with by the Court, a slight anomaly can exist that allows the offender to be treated as a first time offender. This anomaly also arises if a driver commits any two major offences before the first major offence is finalised by the Court.

A plain reading of the definition of "second or subsequent" offence makes it clear that a new offence is to be considered a second or subsequent offence if the person was already convicted for the previous offence before being convicted for the the new offence. This means that, if both offences (although committed on separate occasions) are dealt with by the Court at the same time and the driver is convicted for both of them at the same time, neither of them are to be considered second or subsequent offences. This means that the mandatory minimum disqualification period is not increase and that the Court is not bound by legislation to increase the penalties. Some Courts argue that the definition should not be rad that way and that as long as the offences arose out of different incidents, the second offence is to be considered a second offence. It must be noted, in any event, that the Court is not limited in the amount the disqualification period/s can be increased and therefore, in practice, it may not actually matter whether one of the offences is technically and by law considered a second offence or not. 

Finally, for a second or subsequent offence to exist, the offences must be committed on different occasions. If someone, for example, is charged with a drink driving offence while they are suspended and therefore, also charged with drive whilst suspended, both offences will be dealt with as first offences.

If you have been charged with drive whilst disqualified or suspended, particularly where you have also been charged with other offences, our experts at Prime Lawyers - Traffic Law Division can help. Contact us to make an appointment with a traffic lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.    

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