Four pieces of the NSW road transport legislation puzzle were recently consolidated into a single Act – the Road Transport Act 2013 (RT Act). This included the important amendments that were made in late-2010 to the previously in effect Road Transport (Driver Licencing) Act 1998 (RTDL Act) which ensured that demerit points would no longer be imposed where a magistrate or judge makes an order dismissing a traffic matter under section 10 of the Crimes (Sentencing Procedure) Act 1999 (CSP Act).
It was previously the case that the Roads & Traffic Authority – now known as the Roads & Maritime Services (RMS) – would impose demerit points for offences where the court did not impose a conviction. Under the former section 14 of the RTDL Act, demerit points would be recorded whenever an offender paid the applicable fine, allowed the time to make a court election to lapse or took the matter to court and was found guilty or pled guilty. There was no scope for the magistrate or judge to make any sort of order that the RMS not record demerit points.
Any person that has ever been present in the Local Court will likely recall occasions where the magistrate politely said to a self-represented defendant who had come to court with a number of mistaken beliefs words to the effect of, “I have no power over demerit points. I can’t give you a special licence to drive to and from work. I don’t have the jurisdiction.”
The amendments to the RTDL Act changed this position slightly. The relevant provision is now found in section 31(2)(a) of the RT Act. Instead of requiring the RMS to record demerit points if the person was “convicted, or found guilty” of an offence, the provision now reads “convicted” only. This is a subtle but important change because a magistrate or judge can now order that a matter be dismissed, conditionally or otherwise, pursuant to section 10 of the CSP Act and, in effect, ensure that the defendant does not have demerit points recorded against their licence. To ensure that there is no confusion on this issue, section 32(4) of the RT Act goes on to say:
“To avoid doubt, the Authority is not to record demerit points against a person under this Division in respect of an offence if the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of the offence.”
It should be noted that a dismissal pursuant to section 10 is not a guaranteed outcome in any given matter. In deciding whether to make an order under section 10, the court is required to take into account matters such as:
(a) a person’s character, antecedents, age, health and mental condition;
(b) whether the offence is of a trivial nature;
(c) any extenuating circumstances surrounding the commission of the offence; and
(d) other matters the court thinks proper.
While the prospects of not accruing any demerit points may be tempting, you should always consider the potential ramifications if you are not successful. First, the range of penalties available to the court are not limited by the amount of the fine you may have already received – the court can, and is required to, consider anything up to the maximum penalty which is invariably much higher than the initial fine. Second, if a conviction is entered against you, the matter will be recorded on your criminal record. You should weigh up these matters when considering how you would like to proceed with your traffic matter.
The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.