Lofty Ideals, Policy Potholes & Local Licences
“Tough on crime”, “the War on Drugs”, and now….. “Towards Zero”: the latest rhetoric to metamorphosis into policy. So commendable is this policy principle, we invite you with us, to look behind the rhetoric, examine the details, and the impact these will have on day-to-day lives of drivers.
Mid Range drink driving and the interlock program
Low Range Drink driving
Driving with a mere trace of a drug in your saliva, that was ingested days ago (“drug driving”)
Let’s start by acknowledging that the expression “drug driving” is misleading. Drug driving includes people driving under the influence of a drug; as well as those drivers who are NOT impaired, but who have a trace of a drug in their saliva – a drug they may have consumed days ago.
The Road Safety Plan states the NSW Government objective is greater powers of enforcement for the NSW Police, that will maximise the benefits of enforcement, reduce country road deaths and serious urban areas injuries, and to ensure safer heavy vehicle movements. Stronger penalties and more enforcement will tackle drink and drug driving, through increased penalties for driving under the influence of a drug or alcohol; powers to take offenders off the road after an offence; to double mobile roadside drug testing towards a goal of 200,000 tests by the end of 2020; to include cocaine in roadside drug testing; tougher new penalties allowing immediate licence suspension notices accompanied by fines to be applied to consistently and swiftly for all first offences of driving with presence of low range prescribed content of alcohol (PCA) and presence of prescribed illicit drugs, extending mandatory sentencing for alcohol interlock devices to now apply to mid-range PCA offenders, as well as options for immediate roadside vehicle sanctions/impounding for high risk offenders. The educational objectives of this ‘balance’ sought to ensure the extension of the availability of impaired driving education courses, along with the requirement to complete such courses to be mandated for more offenders.
While Local Court Lawyers plans a related series of articles to follow, which will discuss the intricacies and implications of the interlock regime, it is sufficient for now to note that this was extended as a mandatory sentence in December 2018, to now apply to mid-range PCA offences, in addition to the previous application as a mandatory sentence for high-range PCA offenders. The most recent legislation to enter into force that is potentially more detrimental to regional drivers as compared to the rest of the NSW community, are consequences of the legislation introduced into Parliament by the NSW Roads Minister Melinda Pavey, to create the new on-the-spot penalties for first time low-range drink and drug-driving.
Melinda Pavey, NSW Roads Minister
These changes to NSW traffic offences took effect on Monday 20 May 2019, and will effectively allow NSW police officers a power of discretion, meaning they can now choose whether specific drug or alcohol traffic offences in NSW are to be determined by a Court, or should be dealt with immediately. NSW Police can now instantly suspend the driver’s licence, right then and there, at the road side, for 3 months AND impose a $561 fine; OR the officer can elect to refer the matter to the local court. This instant penalty option only applies for first time offences under Section 110(3) of the Road Transport Act 2013 (NSW), of driving with presence of a low range PCA (Prescribed Content of Alcohol); or the Section 111 offence of driving with the presence of a prescribed illicit drug, once the offence is verified by laboratory analysis result. For the first time, Police are now able to decide to deal with first time traffic offenders, who fail a roadside drug or alcohol test and are charged for a low-range PCA or presence of a prescribed illicit drug offence, with summary justice for these offences, which were previously only penalised after a determination before the NSW Local Court.
While accepting an instant suspension and paying the fine does not result in a criminal record, what an immediate licence suspension does mean is handing your licence to Police on the spot; being instantly prohibited from driving; and the need to make arrangements how you would get home, from the roadside or police station.
Previously only the judiciary had the power to determine a final sentence for these offences, which meant that lawyers could also ensure any extenuating, or mitigating circumstances or facts were also considered. Even offenders who entered a plea of guilt still had the opportunity of presenting sentencing submissions to the court – factors weighed by the Magistrate’s determination as to the appropriate severity of a sentence. Factors often put to the Court as sentencing submissions were in regard to driving history; hardship caused by any licence loss, such as loss of job and income; or the hardship a loss of licence could cause to others; the availability of public transport; or any references or submissions as to good character. Bear in mind that some people, who have never committed any offence, at all, are now being punished in the same manner, and with the same sentence, as someone whose criminal and traffic history indicates they have a flagrant disregard for the law. We see it every day, but before May 20, we had the opportunity to assist the court in imposing a different sentence on these two offenders, by contextualising the offence and contextualising the offender.
The maximum penalty for a first serious traffic offence within 5 years, was a fine of $1,100.00 and an automatic disqualification period of 6 months. The fine has now doubled to $2,200. For any offence of driving with presence of prescribed content of alcohol or presence or prescribed illicit drug, the NSW Roads and Maritime Service provides a full list of penalties that may apply. Even the $561 fine that accompanies an instant suspension notice, represents a significant increase, against the $482 average fine for a first-time low-range drink-driver in 2017, and $472 for a first-time drug-affected driver.
Previously, by entering a plea of guilty before the local court, the offender was then entitled to a 25% reduction for sentencing. More importantly for many, particularly in the Northern Rivers region and other regional areas in NSW, until this change drivers charged with low range PCA and/or illicit substance driving offences kept their licence, until a sentence was issued following a plea or finding of guilt in a NSW Local Court. The loss of a driver’s licence did not occur until the courts made a final determination. The Court Attendance Notice could take many weeks to arrive by post, and busy Local Court lists, along with individual facts and circumstances, frequently necessitated adjournments. What this all meant was that losing the right to drive did not occur until months after these first time & low range driving offences. The instant suspension regime entirely erases the time between the offence and a prohibition from driving – even if you decide to appeal your suspension and have the matter determined in court. The previous system of referring these offences to the NSW Local Court allowed time, often vital, for plans and arrangements to be made to mitigate against the harshest possible consequences of a loss of licence in regional NSW – such as job loss, loss of financial security, any consequent family or housing stress, and ultimately even homelessness or suicide.
In part 4, the Local Court Lawyers’ Peter Randall explores the effect of legal changes on local drivers, and the implications and true policy impetus for measures introduced by the government, ostensibly as steps striving towards achieving the rhetorical goal set for 2056 – of zero road trauma and fatality in NSW.
 “Road Safety Plan 2021: Towards Zero”, Transport NSW, Centre for Road Safety, February 2018, p 7.
 Road Transport Act 2013 (NSW), s111.