TRAFFIC OFFENCES

Introduction
Relevant legislation
How traffic offences are dealt with
Traffic infringement notices
Expiation Reminder Notice
Enforcement Order
In cases of hardship
Prosecution
Commencement by issuing a summons
Written plea of guilty
Failure to enter written plea of guilty and failure to attend court
Sentencing procedure for a written plea of guilty
Where the penalty may include imprisonment or a licence disqualification
Points Demerit Scheme
Summary of demerit points
Disqualification
Reduction of demerit points by a court
Penalties for driving offences
Where no penalty is stated for the offence
Licence disqualification and cancellation
Licence disqualification to commence after imprisonment
Clamping, impounding and forfeiture of motor vehicles
Common Driving Offences
Failing to stop after an accident
Failure to obey directions, answer questions or produce a licence
Driving an unregistered and uninsured vehicle
Excessive speed
Driving without due care
Misuse a motor vehicle
Driver's Licences
Driving without a licence
Suspension of driver’s licence for unpaid fines
Driving with a suspended driver’s licence
Driving whilst disqualified
The role of the duty solicitor
Penalty range
Sentencing principles for drive disqualified
Alcohol/ Drugs and Driving Offences
Alcohol and drug testing
Driving under the influence of alcohol (DUI)
Prescribed concentration of alcohol (PCA)
Driving with prescribed drug present in oral fluid or blood
Refusing a breath test
Penalties for drink driving offences
Section 47J assessment for recurrent offenders
Alcohol Interlock Scheme conditions
Serious driving offences
Aggravating factors
Reckless and Dangerous Driving
Dangerous driving to escape police pursuit
Using motor vehicle without consent
Causing death or injury by driving
Reckless and dangerous driving which causes death or harm
Aggravated driving without due care
Brief penalty summary

Introduction

This chapter is about traffic offences which duty solicitors are likely to encounter during the course of their work, and it is intended to provide guidance in relation to practice and procedure. It is necessary for a duty solicitor to be familiar with the elements of traffic offences, possible defences, sentencing principles and likely penalties in order to provide effective advice or representation.

 THE ROLE OF THE DUTY SOLICITOR
It is necessary to be familiar with many traffic offences, and to be aware of the limitations placed on the role of the duty solicitor where there is a potentially serious penalty for such an offence [see Role of Duty Solicitor and Guilty Pleas chapters].

The role of a duty solicitor necessarily has limitations.  For example, a duty solicitor would not normally represent a defendant in relation to a simple traffic matter (where there is no risk of imprisonment).  However, the duty solicitor may ascertain whether or not there is a possible defence, and where there is no possible defence, the duty solicitor can assist the defendant to represent him or herself by providing advice about  penalties, material to put to the Court, and court procedures. In similar fashion, a duty solicitor would not normally represent a defendant on a drink-driving charge, except where the person charged is so compellingly disadvantaged there would be a risk of justice miscarrying if the person was left to his or her own devices (normally representation at a more senior level would be required in such instance).

At the end of this chapter there is a brief penalty summary for offences commonly encountered at court and access to a comprehensive list of traffic offences and penalties.

Relevant legislation

These legislative sources are relevant to driving offences commonly encountered by duty solicitors:

Australian Road Rules [for uniform road laws throughout Australia]

Road Traffic (Road Rules-Ancillary and Miscellaneous Provisions) Regulations 2014 [offences and penalties for the Australian Road Rules]

Road Traffic (Miscellaneous) Regulations 2014 [offences and penalties for the Australian Road Rules]

Criminal Law Consolidation Act 1935 [driving related offences (including aggravated offences) and penalties]

Criminal Law (Sentencing) Act 1988 [sentencing principles, penalties and court orders]

Motor Vehicles Act 1959 [laws and offences relating to the registration of motor vehicles, driver’s licences and third party insurance]

Motor Vehicles Regulations 2010 [offences and penalties under the Motor Vehicles Act 1959; the alcohol interlock scheme, the demerit point scheme, and schedules of related fees, expiation fees and demerit points]

Road Traffic Act 1961 [road use by pedestrians, vehicles, drivers, riders and passengers]

Summary Offences Act 1953 [offences and penalties]

How traffic offences are dealt with

Traffic infringement notices

Minor traffic offences are generally those offences which do not carry a penalty of imprisonment. Such offences can either be dealt with by court proceedings or, if the offender has been issued with a traffic infringement notice (often referred to as a TIN) by payment of a fine. The Expiation of Offences Act 1996 governs the issue and payment of expiation fees. A person has twenty-eight days from (and including) the date of issue of an expiation notice to pay the expiation fee [see s 6(1)(c)]. The offence is expiated upon payment of the fee, making the alleged offender no longer liable for prosecution for that offence [see s 15]. There is no court appearance and no conviction recorded, but the offence will incur demerit points.

Payment of the expiation fee is not an admission of guilt or civil liability and it cannot be considered evidence of such [see s 15(4)]. Furthermore, the expiation of an offence cannot be referred to in any future reports assisting a court to determine sentence for any other offence [see s 15(4)(c)].

Expiation Reminder Notice

When an expiation notice remains unpaid after the due date, unless the person has elected to be prosecuted (see below) they will automatically be found guilty of the offence. If a person does not pay the traffic infringement fine within 28 days or enter into an arrangement under section 9 of the Expiation of Offences Act 1996, an expiation reminder notice is sent to the address on the traffic infringement notice [see Expiation of Offences Act 1996 s 11]. No further enforcement action can take place until 14 clear days after the date of the reminder notice [see s 13(2)(a)]. A reminder notice fee is added to the original traffic infringement fine [see ss 11(3)].

Enforcement Order

If payment of the traffic infringement fine and reminder notice fee is not made within the fourteen day period and the person has not entered into an agreement under section 9 of the Expiation of Offences Act 1996, or has not lodged an election to be prosecuted, an enforcement determination is made [see Expiation of Offences Act 1996 s 13; Courts and Jurisdiction chapter].

Upon an enforcement determination being made:

  • the alleged offender is taken to have expiated the offence(s) [see Expiation of Offences Act 1996 s 13(3)]; and
  • the Fines Recovery and Enforcement Officer may take enforcement action against the alleged offender to secure payment, including entering into a payment arrangements under section 9(1)(b) [see Expiation of Offences Act 1996 s 14A(2)].

In cases of hardship

Where an alleged offender is unable to pay the traffic infringement in full by the due date, they have the option of entering into a payment arrangement under section 9 of the Expiation of Offences Act (SA) 1996 at any time before the payment deadline. It is not necessary to demonstrate hardship to be eligible for this option.

Payment arrangement options available under section 9 include:

  • payment by instalments over a 12 month period;
  • payment by instalments over a period of more than 12 months;
  • an extension of time to pay;
  • the taking of a charge over land;
  • the surrender of property to the Fines Enforcement and Recovery Officer;
  • payment by garnishing of wages.

It is not possible to convert a traffic infringement fine to community service; however, an alleged offender may be eligible for this option if:

  • an enforcement determination has been made under section 13; and
  • the Fines Enforcement and Recovery Officer is satisfied that the alleged offender does  not have, and is not likely to have within a reasonable time, the means  of satisfying the amount owed without he/she or his/her dependants suffering hardship (Criminal Law (Sentencing) Act 1988 s 70U).
PAYMENT OF EXPIATION FEES

If a person seeks advice in relation to an expiation notice, the duty solicitor should advised them that they have a number of options, but must choose one within the time allowed to pay the expiation fee (that being 28 days). The options are:

  • pay the expiation fee within the time allowed; or
  • make a payment arrangement under section 9 of the Expiation of Offences Act 1996; or
  • apply to defend the offence; or
  • ignore the notice, which will lead to an enforcement determination being made.

If the offence (or any of the offences) is disputed, the fine should not be paid. The person should complete and return the traffic infringement notice having endorsed the relevant section, electing to be prosecuted.

Hardship applications are no longer possible at the initial stage. If a person is unable to pay their expiation fine or fines, despite entering into a payment arrangement and an enforcement determination is issued, the Fines Enforcement and Recovery Officer may apply to the Court for an order for community service if they are satisfied that the alleged offender does not have the means to pay within a reasonable time without he/she or his/her dependants suffering hardship (see above In cases of hardship).

Prosecution

In relation to traffic infringement notice s, the alleged offender may elect to be prosecuted for the offence on the infringement notice, in which case court proceedings will commence [see Expiation of Offences Act 1996 ss 6(k) and 8].

Commencement by issuing a summons

Prosecution for traffic offences which are summary offences, and not punishable by imprisonment (for a first or subsequent offence), may be commenced by the issue of a summons on a Form 5B in accordance with the Summary Procedure Act 1921 s 57A, or a complaint and summons on a Form 3 in accordance with the Summary Procedure Act 1921 sections 49 and 57 [see Summary Procedure Act 1921 s 57A(1)].

Defendants who wish to plead not guilty, simply attend court, either personally or through a lawyer, on the day shown on the summons.

Written plea of guilty

On this form of summons (or complaint and summons) as outlined above, the defendant can enter a written plea of guilty and not attend court [see Summary Procedure Act 1921(SA) ss 57A(6) and 57A(9)]. A defendant can enter a guilty plea by indicating on the summons a wish to plead guilty to the charge(s), and may also enter in writing any details he or she would like the court to take into account when fixing the penalty [see ss 57A(2) and 57A(3)]. The form must be signed in front of a solicitor, a justice of the peace or a police officer, and returned to the court not less than three clear days before the date set for the hearing [see s 57A(2)]. A defendant can apply to withdraw his or her plea of guilty at any time before the hearing and determination of the complaint [see s 62B(4)].

The Court will permit a solicitor to enter a guilty plea to many traffic offences, including drink driving matters, on behalf of an absent client. In such an instance the solicitor should immediately notify his or her client of the outcome, particularly the commencement and length of any licence disqualification period, and follow up this advice with a letter of confirmation.

Failure to enter written plea of guilty and failure to attend court

Where a defendant does not return the form indicating a wish to plead guilty, and fails to attend court on the date set for the hearing, the court may issue a warrant and adjourn the hearing until the defendant is apprehended, or, upon proof the summons was served a reasonable time before the hearing, proceed in the absence of the defendant to hear the complaint and adjudicate the matter [see Summary Procedure Act 1921 (SA) ss 57A(7), 62B(7), 62(1)(a), 62(1)(b) and 62BA].

Sentencing procedure for a written plea of guilty

Where a defendant has indicated a wish to plead guilty on the summons (or complaint and summons), the court may proceed to convict and sentence the defendant in his or her absence on the hearing date [see Summary Procedure Act 1921 (SA) s 62B(1); s 62B(3) for the role of prosecutor at the hearing].

However, where a defendant has stated facts in the form which indicate that he or she has a valid defence, or which differ substantially in relevant particulars from the matters recited to the court by the prosecutor, the court may strike out the plea of guilty, adjourn the hearing of the complaint, and order that the defendant be served with a summons whereupon the provisions of section 57A no longer apply [see ss 62B(5) and 57].

Upon conviction, a court may not impose any sentence of imprisonment or licence disqualification (unless the procedure in 62C is followed (see below)) nor may the court treat the offence as other than a first offence (unless proved the defendant has previously been convicted) nor can it order the defendant to pay witness fees [see s 62B(6); s 62B(7) for exception to not ordering payment of witness fees where the form is served by the defendant less than three clear days before the hearing date]. The defendant must be notified of the conviction forthwith by post or in person, and advised of any fine or other monetary sum required to be paid [see s 62B(8)].

Where the penalty may include imprisonment or a licence disqualification

Where the penalty for the offence includes possible imprisonment or a licence disqualification, the defendant will be notified of the necessity to attend the hearing, as the court cannot impose a term of imprisonment or disqualify a person from driving unless the person is given an opportunity to say why it should not do so [see Summary Procedure Act 1921 (SA) s 62C(1); s 62C(2) for notification of adjournment]. Upon further proceedings (whether or not the defendant appears) the court may order imprisonment or a licence disqualification, or both [see s 62C(3) where the defendant fails to attend, proof of service must be established; s 62C(3a) where it is found that the Registrar was unable to notify the defendant, having made due enquiry and exercised reasonable diligence, the court may proceed in the defendant’s absence].

MISTAKES IN A SUMMONS OR TRAFFIC INFRINGEMENT NOTICE
A mistake in either a summons or a traffic infringement notice is usually not a good enough reason to have the matter dismissed. The notice may be reissued or the summons may be amended in court. The duty solicitor should always seek advice in these matters.

Points Demerit Scheme

In addition to the penalties contained in the Road Traffic Act 1961 (SA), many offences also carry demerit points, which are recorded by the Registrar of Motor Vehicles. The demerit points for offences committed interstate are also recorded against a South Australian licence [see Motor Vehicles Act 1959 s 98BB]. Demerit points apply from the date the offence was committed and not from the date of the conviction or the payment of the traffic infringement notice fine. Three years after an offence is committed the demerit points are erased.

In accordance with the Motor Vehicles Act 1959 s 98B demerit points for various offences are applied in the following manner:

  • where a person is convicted of, or expiates an offence as prescribed in the regulations, the number of demerit points prescribed by the regulations in relation to that offence applies [see Motor Vehicles Act 1959 s 98B(1)];
  • if a person is convicted of, or expiates two or more offences arising from the same incident, demerit points are incurred only in respect of the one offence(s) that attracts the most demerit points [see s 98B(3)];
  • where a person is convicted of, or expiates two or more offences arising from the same incident, and the offences include a red light offence and a speeding offence, demerit points are incurred for both offences [see s 98B(3a)];
  • where a person is convicted of, or expiates an offence against the Road Traffic Act 1961 section 79B (being the owner of a vehicle which was captured by a photographic detection device as having been involved in two or more prescribed offences arising from the same incident) and the offences include a red light offence and a speeding offence, the number of demerit points is the sum of the number of demerit points for the red light and the speeding offence [see Motor Vehicles Act 1959 s 98B(3b); Road Traffic Act 1961s 79B].

To summarise, where a person is convicted or pays an expiation fee for two or more traffic offence(s) arising from the same incident (including camera offences, but excluding red light camera offences) he or she will only receive the demerit points for the most serious offence [see Motor Vehicles Act 1959 s 98B(3)]. Thus, for example, a person charged with both driving without due care and driving a vehicle without lights would only attract the demerit points for the offence which attracted the higher number of demerit points. However, a person charged with a red light offence and a speeding offence which arose from the same incident, would incur demerit points for both offences [see Motor Vehicles Act 1959 ss 98B(3a) and 98B(3b)].

Summary of demerit points

A complete list of offences prescribed by the Road Traffic Act 1961, the Australian Road Rules, the Road Traffic (Road Rules-Ancillary and Miscellaneous Provisions) Regulations 2014, and the Motor Vehicles Act 1959 and their corresponding demerit points is set out in schedule 4 of the Motor Vehicles Regulations 2010.

Disqualification

Where the holder of a driver’s licence (including an interstate learner’s permit or interstate licence) incurs twelve or more demerit points in relation to offences committed within a period of three years, his or her driver’s licence is suspended by the Registrar of Motor Vehicles for a prescribed period [see Motor Vehicles Act 1959 ss 98BC(1) and 98BC(2)]. The relevant prescribed periods are:

  • disqualification for three months where the number of demerit points incurred within three years is not less than twelve points but not more than fifteen points [see s 98BC(3)(a)];
  • disqualification for four months where the number of demerit points incurred within three years is not less than sixteen points but not more than nineteen points [see s 98BC(3)(b)];
  • disqualification for five months where the number of demerit points incurred within three years is twenty or more points [see s 98BC(3)(c)].

The Registrar must give notice in writing to a person when he or she has incurred half the number of demerit points which would result in disqualification [see s 98BD(1)]. Where a person is liable for disqualification due to the number of demerit points incurred, the Registrar must notify them in writing of the date on which the disqualification will take effect and that their licence will be suspended for a prescribed period [see s 98BD(2); s 139BD for service and commencement of disqualification notices]. A notice of disqualification takes effect 28 days after the day on which the notice was served [see ss 139BD(8)(a) and 139BD(8)(b)]. If the person is already disqualified for another reason (for example, as part of a penalty imposed by a court), the demerit point disqualification begins once the other period of disqualification ends [see s 139BD(9)].

Upon receipt of a notice of disqualification, an eligible person may be offered an opportunity to accept an undertaking to be of good behaviour for a period of twelve months commencing on the day on which the disqualification would have taken effect, and in that case the notice of disqualification does not take effect [see s 98BE(2)]. If two or more demerit points in relation to one or more offences are incurred during the period of the undertaking, the resulting period of driver’s licence disqualification will be doubled [see s 98BE(2a)].

At the end of the period of disqualification the demerit points that led to the disqualification are erased [see s 98BE(5)]. However, any demerit points collected between the commission of the offence that raised the total to twelve and the receipt of the notice of disqualification are not erased by the disqualification.

Reduction of demerit points by a court

When convicting a driver of an offence which attracts demerit points, the court can reduce the number of demerit points or order no demerit points if it is satisfied by evidence given on oath forthwith upon conviction that the offence is “trifling” or that any other “proper cause” exists [see Motor Vehicles Act 1959 s 98B(4)]. In either case, the defendant will have to tell the court that he or she wants to plead that the offence is “trifling” or that “proper cause” exists to reduce the number of demerit points. The defendant will then be asked to give evidence on oath (sworn evidence) as to why the number of demerit points should be reduced [see Dean v Police (2008) 49 MVR 416; [2008] SASC 55as an example, but only where section 98B of the Motor Vehicles Act 1959 applies. Police v Hallett [2010] SASC 256 confirms that this is not the case where a matter is determined under sections 15 or 16 of the Criminal Law (Sentencing) Act 1988 ].

The word “trifling” (or trivial) means that the offence is a minor or trivial example of that particular type of offence and refers to the circumstances of the driving itself, not that the offence is a minor offence. If the offence is trifling, either no demerit points or a reduced number of demerit points may be imposed. It appears that courts have been very reluctant to find that “proper cause” exists to reduce the number of demerit points [see Gilbert v Owen (1991) 14 MVR 235; [1991] SASC 3059; Dycer v Police [2010] SASC 241 for examples]. Hardship to an offender is generally not accepted as “proper cause” sufficient to reduce the number of demerit points [see Holness v Police (2010) 56 MVR 510; [2010] SASC 314; Black v Police [2009] SASC 115]. Instead, the offence must be particularly exceptional in its nature to justify the demerit points being reduced.

SUBMISSIONS ON REDUCTION OF DEMERIT POINTS
Duty solicitors need to be aware of this issue, even though they will rarely be involved in such traffic matters, because they may have to conduct a plea for a defendant in relation to other matters but where a traffic offence is included on the complaint or the information.

Penalties for driving offences

Where no penalty is stated for the offence

The Road Traffic Act 1961 (SA) provides specific penalties for some, but not all offences in that Act. Where no penalty is stated for an offence, the penalty is a fine of up to $2,500 [see s 164A(2)].

The Australian Road Rules are part of a national scheme to provide uniform road laws throughout Australia. A breach of various rules constitutes an offence, the penalties for which are set out in the Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations (SA) 2014 and the Road Traffic (Miscellaneous) Regulations 2014 (SA). Generally, where no penalty is stated for an offence, the maximum penalty is a fine of up to $2,500. Offences against Part 3 (i.e. speed limits) can attract a penalty up to $5,000 [see Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) reg. 67]. Where the offence is against a provision of Part 12 (i.e. stopping and parking) the maximum penalty is a fine of $1,250 [reg. 67].

Licence disqualification and cancellation

A sentencing court can impose a licence disqualification and order the registration of a motor vehicle be suspended or cancelled for any offence against the Road Traffic Act 1961 (SA) relating to motor vehicles; or any offence under any other Act or law where a motor vehicle was involved in the commission of an offence; or where the commission of an offence was facilitated by the use of a motor vehicle [see s 168(1)].

Furthermore, where a court of summary jurisdiction, on information or complaint, is satisfied a person (or any other person) has used, or is likely to use a motor vehicle in connection with the commission of any offence or to facilitate an escape from arrest or punishment, it may order that the person who used, or is likely to use the vehicle be disqualified from driving [see s 170].

Licence disqualification to commence after imprisonment

Where a court imposes a sentence of imprisonment (other than a suspended sentence) and orders a person be disqualified from driving for a specified period, the person will be taken to be disqualified for a period which commences at the time the order is made, but ending at a time calculated as if the specified period commenced upon the person’s release from serving that period of imprisonment [see Road Traffic Act 1961 (SA) s 169B(1)]. This provision applies despite the fact it may result in a period of disqualification exceeding any prescribed maximum period [see s 169B(2)].

Clamping, impounding and forfeiture of motor vehicles

The Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) and the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 (SA) provide powers to relevant authorities and the courts in relation to clamping, impounding and forfeiture of motor vehicles. At any time before proceedings for a prescribed offence have been finalised, a relevant authority can clamp or impound either a motor vehicle allegedly used by a defendant in the commission of an offence or any motor vehicle of which a defendant is the registered owner. This may occur where a defendant is reported for a prescribed offence and has been advised of that fact, or where a defendant has been arrested and charged in relation to a prescribed offence [see Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) ss 5(1) and 5(3)]. This does not apply to a person who has received an expiation notice for an offence, unless that notice is withdrawn or the person elects to be prosecuted for the offence [see s 5(2)].

In accordance with the regulations, a prescribed offence for the purpose of the Act is:

[see Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 (SA) reg. 4]

A sentencing court, when imposing another penalty on a person in relation to a prescribed offence, must have regard to any exercises of power under the Act [see Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 s 4]. Prosecution may apply for an order that a motor vehicle specified in their application be forfeited to the Crown upon a conviction for a prescribed offence. The court, on the application of the prosecution, must order such forfeiture where the offence is a forfeiture offence, or the convicted person has been found guilty of or expiated at least one other prescribed offence committed or allegedly committed within ten years of the date of the offence [see s 12(1)(a)].

Prosecution may apply for an order that a motor vehicle specified in their application be impounded for a period not exceeding six months upon a conviction for a prescribed offence. The Court, on the application of the prosecution, must order the motor vehicle to be impounded if the convicted person has been found guilty of or expiated at least one other prescribed offence committed or allegedly committed within ten years of the date of the offence [see s 12(1)(b)].

Where the court makes either order, it also must order the convicted person to pay fees in relation to the forfeiture or impounding of the motor vehicle [see s 12(1a)]. For details of relevant fees see penalty summary. Upon the hearing of such application, the court must hear representations in relation to the application [see s 12(3)].

It is important to note that a court may decline to make an order for forfeiture of, or to impound a motor vehicle where it is satisfied that:

  • the order will cause severe financial or physical hardship to a person; or
  • that the offence occurred without the knowledge or consent of the owner of the motor vehicle; or
  • where the order would prejudice the rights of a credit provider; or
  • where the vehicle has since been sold.

[see s 13(1)]

The Court may consider ordering community service where it declines to make such an order [see s 13(2)].

Common Driving Offences

RELEVANT OFFENCES AND OFFENCE DATES
When dealing with driving offences, it is very important for the duty solicitor to maintain vigilance in relation to the date on which an offence is alleged to have occurred, and an awareness of the relevant legislation and regulations in effect on the date of the offence.

Failing to stop after an accident

In accordance with the Australian Road Rules the driver of every vehicle concerned in an accident must:

  • stop at the scene of the accident [see r 287(2)]; and
  • render as much assistance as possible to any person who is injured; and
  • give their name, address, the registered number of their vehicle (and any other information necessary to identify the vehicle) and the name and address of the owner of the driver's vehicle, to any person who reasonably requires it [see r 287(2) for the people who must be provided with the driver’s required particulars; r 287(4) for the definition of required particulars]; and
  • where required, report the accident as soon as possible (and in any event within twenty-four hours) to the police [see r 287(4) for the definition of the required time].

A report must be made to the police within the required time where:

  • any person was killed or injured in the accident [see r 287(3)(a); Road Traffic Act 1961 (SA) s 43(1) for the obligation to report within ninety minutes of the accident; Motor Vehicles Act 1959 (SA) s 124 for notification to insurer]; or
  • the driver did not give their required particulars to each person at the scene of the accident who reasonably required it [see r 287(3)(b)]; or
  • the required particulars for another driver involved in the accident were not given to the other driver [see r 287(3)(c)]; or
  • a vehicle involved in the accident was towed or carried away by another vehicle (but not where another law of this jurisdiction provides the accident is not required to be reported) [see r 287(3)(d)]; or
  • the accident is required to be reported to a police officer under another law of this jurisdiction [see r 287(3)(e)].

A driver who is involved in a car accident must report to a police officer where real or personal property (other than an animal) is destroyed or damaged in the accident, but does not have to report where the only property destroyed or damaged is property owned by the driver, or where a fair estimate of the cost of making good the damage to property, is not more than $3,000 [see Road Traffic (Road Rules-Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) reg 39]. Failure to comply with this requirement is an offence for which the maximum penalty is a fine of $2,500 [see reg 67].

Failure to obey directions, answer questions or produce a licence

There are a number of situations related to driving where it is an offence to not answer truthfully questions put by a police officer or to fail to obey the lawful directions of a police officer.

A police officer, for the purpose of, or in connection with the exercise of his or her powers under a road law, may direct the driver of a vehicle to stop the vehicle. Failure to respond to such a direction is an offence for which the maximum penalty is a fine of $5,000 [see Road Traffic Act 1961 (SA) s 40H]. In addition, a police officer may request personal details from any person whom the police officer suspects on reasonable grounds has committed, is committing, or is about to commit, an Australian Road Law offence; or who is able to assist in the investigation of an Australian Road Law offence or suspected Road Law Offence; or who is or may be the driver of a vehicle involved in an accident [see Road Traffic Act 1961 (SA) s 40V]. It is an offence to contravene a direction to provide personal details or to provide false or misleading information, for which the maximum penalty is a fine of $5,000 [see s 40V].

Under the Motor Vehicles Act 1959 (SA) a person must answer any question that would help to identify the driver of a motor vehicle [see s 137(b)]. The maximum penalty for failure to comply is a fine of $750 [see s 137]. Drivers must also produce their licences when requested by a police officer, either immediately or to a specified police station within forty-eight hours [see s 96(1)]. A person who disobeys this requirement may be fined up to $1,250 [see s 96(1)]. However, a person who holds a probationary licence, provisional licence or learner’s permit must carry that licence or permit at all times when driving and must produce the licence or permit immediately if requested to do so by a police officer. The maximum penalty is a fine of $1,250 [see s 98AAB]. It is also an offence for a person to falsely represent to a police officer that he or she is the person named in the licence or learner’s permit, for which the maximum penalty is a fine of $750 [see s 96(3)]. A court may also require a person to produce their licence or learner’s permit to the court at the time of the hearing of the charge, and failure to do so is an offence for which the maximum penalty is a fine of $1,250 [see s 97(1)].

A police officer may ask questions about the identity of the driver of a vehicle at a particular time or on a particular occasion [see Summary Offences Act 1953 (SA) s 74AB(1)]. It is an offence to refuse to answer, or to provide false or misleading information [see s 74AB(2)]. On a broader level, where there is reasonable cause to suspect a person has committed, is committing, or is about to commit an offence, or where a person may be able to assist with the investigation of an offence, that person must provide his or her name and other personal details as requested by a police officer [see s 74A(1)]. Further information in relation to police powers can be found in the Police Powers and Forensic Procedures chapter.

Driving an unregistered and uninsured vehicle

These offences may be detected by speed and red light traffic cameras [see Motor Vehicles Act 1959 (SA) sch 1 s 2(1)].

Unregistered vehicles

It is an offence to drive an unregistered motor vehicle, or cause an unregistered motor vehicle to stand on a road. The maximum penalty is a fine of $7,500 [see Motor Vehicles Act 1959 (SA) s 9(1); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007(SA); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 (SA) reg 4(b) but not a first offence]. It is a defence if a person drove the vehicle or allowed it to stand in prescribed circumstances and did not know it was unregistered [see s 9(1a)]. It is also a defence if the person was the driver, but not the owner of the vehicle, and did not know, and could not have reasonably be expected to have known, that the vehicle was unregistered [see s 9(1c)].

Where an unregistered motor vehicle is driven or found standing on a road, the owner of the vehicle is guilty of an offence. The maximum penalty is a fine of $7,500 [see Motor Vehicles Act 1959 (SA) s 9(3)]. It is a defence if the owner did not drive or leave the vehicle standing on the road and took reasonable steps to ensure that any person lawfully entitled to use the vehicle would have been aware it was unregistered [see s 9(4a)]. It is also a defence if the vehicle was driven or left standing on the road because of an unlawful act, such as theft [s 9(5)], or the person was the last registered owner but was no longer the owner at the time of the alleged offence [see s 9(6)].

Uninsured vehicles

It is also an offence to drive a motor vehicle on a road, or cause an uninsured motor vehicle to stand on a road when it is not covered by third party insurance [see Motor Vehicles Act 1959 (SA) s 102(1); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles Regulations 2007 (SA) reg 4(b) but not a first offence]. Where an uninsured motor vehicle is found standing on a road, the owner of the vehicle is guilty of an offence. The maximum penalty for these offences is a fine of $10,000 [see Motor Vehicles Act 1959 (SA) s 102(2); s 102 for defences which mirror those for unregistered vehicles].

Excessive speed

It is an offence to drive a vehicle at a speed exceeding a speed limit by 45 kilometres an hour or more [see Road Traffic Act 1961(SA) s 45A(1)]. For a first offence, the maximum penalty is a fine of not less than $1 100 and not more than $1 500. For a subsequent offence, the penalty is a fine of not less than $1 200 and not more than $1 700 [see Road Traffic Act 1961 (SA) s 45A(1); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations (SA) reg 4(b); Road Traffic Act 1961(SA) s 45B - police may impose licence disqualification with an expiation notice]. Following conviction for this offence the court must impose a mandatory licence disqualification: for a first offence, for not less than six months; for a subsequent offence, for not less than two years [see Road Traffic Act 1961 s 45A(3)].

In determining whether an offence is a first or a subsequent offence, a conviction for any previous offence against this section (or section 46 “reckless and dangerous driving”) will be taken into account, but only if the previous offence was committed within five years preceding the date on which the current offence is alleged to have been committed [see Road Traffic Act 1961 (SA) s 45A(4)].

The police may give a person a notice of licence disqualification or suspension when they issue an expiation notice for an offence against section 45A of the Road Traffic Act 1961 (SA) (excessive speed) [see s 45B(1 )]. Where the expiation notice is subsequently withdrawn or the person elects to be prosecuted that notice of licence disqualification or suspension is cancelled [see s 45B(6)]. Where a court convicts the person of an offence in relation to which the notice was given, or another offence arising from the same course of conduct, and a mandatory minimum period of disqualification is prescribed for that offence, the court must order that disqualification. In determining the period of disqualification the court must take into account the period of disqualification that applied to the person as a result of the notice, and it may impose a period less than the mandatory period [see s 45B(7)].

Driving without due care

It is an offence to drive without due care or attention or without reasonable consideration for other persons using the road [see Road Traffic Act 1961 (SA) s 45(1)]. As no penalty is stated for a basic offence, the penalty is a fine of up to $2,500 [see s 164A(2)]. In addition, a licence disqualification penalty may apply [see s 168; Thomas v Police (2010) 55 MVR 76; [2010] SASC 18]. This is not an expiable offence.

The maximum penalty for an aggravated offence is 12 months imprisonment and the court must impose a disqualification of not less than 6 months. This disqualification cannot be reduced or mitigated in any way [s 45(2)]. An aggravated offence is one that causes death or serious harm; or an offence committed in the course of attempting to escape police pursuit; or committed whilst disqualified or with a PAC of .08 or more [s 45(3)].

As a person who has been in any way negligent in the driving of a motor vehicle may be charged with this offence it is often used as an alternative to a specific offence, such as failing to signal an intention to turn or changing lanes at a time when it is dangerous to do so.

Misuse a motor vehicle

It is an offence to misuse a motor vehicle in a public place by taking part in any form of race, speed trial, vehicle pursuit or competitive trial. It is an offence to sustain a wheel spin in a public place, cause engine or tyre noise in a public place, or both, where it is likely to disturb persons in the vicinity. It is an offence to drive onto an area of park or garden (whether public or private) or a road-related area in a manner so as to break up the ground surface or cause other damage [see Road Traffic Act 1961 (SA) s 44B(1); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 (SA) reg 4(b)]. As no penalty is stated for the offence, the penalty is a fine of up to $2,500 [see Road Traffic Act 1961 (SA) s 164A(2)]. In addition, a licence disqualification penalty could apply [see s 168].

Driver's Licences

The Motor Vehicles Act 1959 (SA) governs the law relating to driving licences; including provisions relating to the obtaining of a learner’s permit, probationary licence, and full licence [see Motor Vehicles Act 1959 (SA); Road Traffic (Road Rules-Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) for the law relating to the obtaining of a learner’s permit, probationary, provisional and full licence, and for specific offences for holders of learner’s permits, probationary and provisional licences]. Some commonly encountered offences under this Act are referred to below.

Driving without a licence

The Motor Vehicles Act 1959 (SA) prohibits a person from driving a motor vehicle on a road unless they hold a current and appropriate driver’s licence or learner’s permit for that particular class of vehicle [see s 74(3)].

Has previously held a drivers licence

Where the person has previously held a driver’s licence under the Motor Vehicles Act 1959 (SA), or under the law of another State or Territory of the Commonwealth, the maximum penalty is a fine of $1250 [see s 74(1)].

Has never held a licence

Where the person has never held a driver’s licence under the Motor Vehicles Act 1959 (SA), or under the law of another State or Territory of the Commonwealth, the maximum penalty for a first offence is a fine of $2 500, but for a subsequent offence, the maximum penalty is a fine of $5 000 or imprisonment for one year [see Motor Vehicles Act 1959 (SA) s 74(2); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles Regulations 2007 (SA) reg 4(b)]. A subsequent offence includes any previous offence against this section or section 91(5) (see Drive whilst disqualified (below)) for which the defendant has been convicted, but only if the previous offence was committed within three years prior to the date of the offence under consideration [see Motor Vehicles Act 1959 (SA) s 74(6); Police v Hallett (2010) 56 MVR 179; [2010] SASC 256; Camplin v Police [2007] SASC 94 for subsequent offence]. Where a person is convicted of an offence against section 74(2) which is a subsequent offence, there is a mandatory licence disqualification of at least three years [see Motor Vehicles Act 1959 (SA) s 74(5)]. A subsequent offence under s 74(2) is not an expiable offence [see s 74(2b)].

Previously disqualified due to a serious drink driving offence

Where the person has been disqualified from driving as a consequence of being convicted of a serious drink driving offence, and has not since the end of the disqualification been authorised to drive a motor vehicle, the maximum penalty for driving disqualified is a fine of $5,000 or imprisonment for one year [see Motor Vehicles Act 1959 (SA) s 74(2a); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 (SA) reg 4(b)]. Where the person is convicted of an offence against section 74(2a) there is a mandatory licence disqualification of at least three years [see Motor Vehicles Act 1959 (SA) s 74(5)]. An offence under section 74(2a) is not an expiable offence [see s 74(2b)].

Section 74(2a) came into effect on 1 May 2009, and applies to any offence which occurred on or after that date [see Statutes Amendment (Transport Portfolio-Alcohol and Drugs) Act 2009].

Section 74(5) (mandatory licence disqualification) came into effect on 4 September 2010, and applies to any offence which occurred on or after that date [see Motor Vehicles (Miscellaneous No 2) Amendment Act 2009].

DEALING WITH DRIVING UNLICENSED MATTERS
In respect of a first offence for driving unlicensed, a defendant can expect to be fined. As such, the duty solicitor does not usually deal with these matters.
However, the law has significantly changed in circumstances where a person is charged with driving unlicensed, where that person has never previously held a driver’s licence or learner’s permit, or where a person has previously been disqualified for a serious drink driving offence. For a second offence, where the person has never held a licence, and for an offence where there has been a previous disqualification, there is the possibility of a period of imprisonment being imposed and a mandatory period of driver’s licence disqualification of at least three years. The duty solicitor should approach these matters in a similar way as for the offence of driving whilst disqualified, as discussed below.

Suspension of driver’s licence for unpaid fines

As part of the penalty enforcement provisions under part 9 division 3 of the Criminal Law (Sentencing) Act 1988, the Fines Enforcement and Recovery Officer may suspend a debtor’s driver’s licence by written determination (s 70M). Such an order may be made despite the fact that the debtor is currently disqualified from holding or obtaining a licence (see s70M(1)). The suspension takes effect 14 days from the date of the determination and remains in effect until cancelled by the Fines Enforcement and Recovery Officer (s 70M(3)).

A copy of the written determination must be given to the debtor (s 70M(2)). The person will have a defence to this charge if the notice of suspension was not received.

Driving with a suspended driver’s licence

It is an offence to drive a motor vehicle on a road while a driver’s licence is suspended or disqualified (see Motor Vehicles Act 1959 (SA) s 91). This section states that a person must not drive a motor vehicle on a road while his or her driver’s licence or learner’s permit is suspended, or while disqualified from driving in this State or any other State or Territory of the Commonwealth or from holding or obtaining a licence or learner’s permit [see Motor Vehicles Act 1959 (SA) s 91(5); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles Regulations 2007 (SA) reg 4(b)]. For a first offence, the maximum penalty is imprisonment for six months. For a subsequent offence the maximum penalty is imprisonment for two years [see Motor Vehicles Act 1959 (SA) s 91(5)].

CHECK THAT THE CORRECT OFFENCE HAS BEEN LAID
It is important to note that the penalties under this section are the same regardless of whether the order affecting the driver’s licence is one of disqualification or suspension under the Motor Vehicles Act 1959 or any other Act. Suspension in this context excludes administrative suspension for non-payment of fines, but includes court-ordered disqualification imposed as an alternative to payment of fines by an impecunious applicant who is unable to meet the required repayment of his or her fines.
There appears to be a conflict between the wording of the Motor Vehicles Act 1959 s 91 and the Fines Enforcement provisions in the Criminal Law (Sentencing) Act 1988 section 70E (see above). Rules of statutory interpretation dictate that the specific Act applies for the specific offence. It is therefore important to determine the nature of the operating order of disqualification or suspension and ensure that the correct offence has been laid before the Court. If in doubt, always seek the advice of a senior practitioner.

Driving whilst disqualified

Driving whilst disqualified is regarded by the court as a very serious offence because it usually constitutes a defiance of, and contempt for, an order either of the court or a Registrar. As a general rule a penalty of imprisonment will be imposed by the sentencing court.

  • For a first offence the penalty is imprisonment to a maximum of six months [see Motor Vehicles Act 1959 s 91(5)];
  • For a second or subsequent offence the penalty is imprisonment to a maximum of two years [see s 91(5)].

Strictly speaking there is no difference between a disqualification ordered by a court (such as for a drink-driving or other traffic offence or for an illegal use/interference offence) and a disqualification ordered by the Registrar of Motor Vehicles (such as under the points demerit system or as a result of an enforcement order made by the court in respect of unpaid fines). Magistrates are required to take the view that Parliament has provided that a substantial sanction be imposed for disobedience to those orders [see Crook v Roberts (1990) 53 SASR 236; Maione v Higgins [1991] SASC 2698; and Springall v Police (2007) 252 LSJS 160; [2007] SASC 425 for interstate disqualifications].

The role of the duty solicitor

LIMITATIONS OF THE ROLE OF THE DUTY SOLICITOR
Duty solicitors should not conduct pleas of guilty for people charged with driving whilst disqualified. The exception may be where an unrepresented defendant is in a position of extreme disadvantage. Even then the duty solicitor should only act after obtaining a senior practitioner's advice, and with signed instructions.
The usual role for a duty solicitor with defendants charged with driving whilst disqualified is to advise them of the procedures and penalties, and to encourage them to seek legal aid or private representation.

Many defendants do not realise the seriousness of this offence, nor that the penalty may be a sentence of imprisonment in “run of the mill” cases, even for a first offence. It is important that the duty solicitor explains to the defendant that:

  • there is a very real risk of immediate imprisonment for this offence;
  • it is important that the defendant adjourns the matter so that he or she can instruct a solicitor to represent them because they may have grounds that might persuade the court to suspend a sentence of imprisonment or, in unusual circumstances, even impose some lesser penalty, and
  • a duty solicitor does not have the time to take the detailed instructions required to do this.

Where a defendant insists on pleading guilty unrepresented, it is important to emphasise that a Magistrate may well find no grounds to suspend a sentence of imprisonment, and that the defendant may be taken into custody immediately following sentencing.

A duty solicitor is not in a position to take the necessary detailed instructions to present submissions in mitigation; these would include:

  • the reason(s) for the defendant driving whilst under disqualification and any exceptional or extenuating circumstances surrounding his or her decision to drive; and
  • any personal circumstances, including the defendant’s family situation and effect of incarceration on any dependants, and any work, character and medical references which may satisfy the court that there is good reason to suspend a sentence of imprisonment even where there is little to submit in mitigation of the driving offence itself.

Failure to adequately prepare submissions in mitigation could adversely affect the chances of a defendant who later wishes to appeal an immediate sentence of imprisonment, owing to the fact that he or she was represented by counsel at the time of sentencing [see Guilty Pleas chapter].

DEFENDANTS IN CUSTODY
A duty solicitor may be of genuine assistance by representing a defendant on a guilty plea to a charge of drive disqualified where the defendant has been refused bail on that charge alone, and has already spent a period in custody without instructing a solicitor.
Such situations arise rarely, and if they do you must seek senior advice before proceeding on a guilty plea.
REMEMBER: never act on a guilty plea for drive disqualified without first getting senior advice, keeping detailed notes and obtaining signed instructions [see Guilty Pleas chapter].

Penalty range

As a rule of thumb, an unsuspended term of imprisonment may range from ten days to one month depending on the circumstances. It may be longer where aggravating factors are alleged, such as a high blood alcohol reading, reckless driving, a prior offending record which suggests long-term contempt for road traffic laws, or where the offence has occurred very soon after the disqualification. A term of imprisonment for a subsequent offence is significantly more severe.

Courts do not normally impose a further period of disqualification for an offence of driving whilst disqualified. The gravity of a sentence of immediate imprisonment is generally held to be sufficient penalty [see Saddler v Crossman (1988) 47 SASR 331]. It should be noted, however, that this authority refers specifically to a case where the penalty was an immediate period of imprisonment. As the discretion to suspend a sentence of imprisonment has now been restored by Police v Cadd & Others (1997) 69 SASR 150;[1997] SASC 6187 (as discussed below), a question is now raised as to whether Magistrates may sometimes take the view that where imprisonment is suspended it may be appropriate to order a further disqualification by way of penalty. There is discretion to impose a licence disqualification for any offence relating to motor vehicles, including where a motor vehicle was involved in the commission of an offence, or where the commission of an offence was facilitated by the use of a motor vehicle [see Road Traffic Act 1961 s 168(1); R, J v Police [2006] SASC 153].

Sentencing principles for drive disqualified

The following commentary is intended only as a general guide to the sentencing principles and standards in relation to drive disqualified offence(s), mitigating factors and the defence of honest and reasonable mistake of fact. Since the judgments of the Full Court in Police v Cadd & Others (1997) 69 SASR 150; [1997] SASC 6187 (‘Cadd’), there have been many single Judge decisions on appeal on the subject of the proper approach to sentencing defendants convicted of driving whilst disqualified. There remains disagreement and inconsistency as to the proper application of the principles in Cadd . This is another good reason why duty solicitors must be cautious when dealing with defendants charged with the offence of driving whilst disqualified.

Case authority prior to Cadd

Prior to Cadd the leading authority was Coombe v Douris (1987) 47 SASR 324, which was subsequently followed in Eldridge v Bates (1989) 51 SASR 532. These cases established rigorous sentencing standards under which there was no discretion to suspend a sentence of imprisonment in any but rare and exceptional circumstances, such as a decision to drive in a situation of serious emergency. Where it was submitted that such a situation had arisen at the time of driving, the sentencing Magistrate should hear evidence as to those facts.

Case authority since Cadd

Since Cadd it appears that the sentencing Magistrate’s discretion to consider whether there is good reason to suspend a sentence of imprisonment or to depart from the penalty provided by the legislation has been restored [see Criminal Law (Sentencing) Act 1988 (SA) ss 10, 11, 18 and 38].

Several propositions may be extracted from Cadd and later single Judge decisions:

Weight should be given to general deterrence

The sentencing Magistrate should give appropriate weight to the principle of general deterrence. The prevalence of the offence and its corrosive effect upon the efficacy of licence disqualification as a punishment require the court to maintain a sentencing standard which reflects the seriousness of the offence.

Serving a custodial sentence is not inevitable

Contrary to the decision in Coombe v Douris, a custodial sentence and the requirement to actually serve that period of imprisonment is no longer to be taken as an almost inevitable consequence of conviction. Such a sentencing standard would fetter the discretion of a sentencing Magistrate.

A custodial sentence is normally appropriate where the driving is "contumacious"

As explained by Mullighan J, in Cadd (at 179):

[The] standard, accepting these matters and giving appropriate emphasis to general deterrence should be imprisonment in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment such as a substantial fine or community service in the appropriate case. I use the word “contumacious” in the sense that it is understood in the law: see [Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3] at 542-543. It means something more than mere intention to drive disqualified which is an essential element of the charge. It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it. In other cases involving a first offender where the offending is otherwise, the starting point need not necessarily be imprisonment. The obligation to have regard to the matters set out in ss 10 and 11 of the Criminal Law (Sentencing) Act 1988 and established sentencing principles are sufficient further guide to the sentencer.

The court must consider "good reason" for suspension even where imprisonment seems appropriate

Even where a sentence of imprisonment may be appropriate because of the contumacious character of the driving itself, the sentencing Magistrate should nevertheless have regard to whether there is good reason to suspend that sentence [see Criminal Law (Sentencing) Act 1988 (SA) s 38].

Alternative penalties may be considered where the offending is not contumacious

Where the circumstances of the offending do not amount to contumaciousness the Magistrate may find there is good reason to substitute an alternative penalty such as a fine or community service [see Criminal Law (Sentencing) Act 1988 s 18].

Suspension of sentence for second or subsequent offenders is not possible

In the case of a second or subsequent offence, it will naturally be harder but not necessarily impossible for the sentencing Magistrate to order a penalty other than an immediate sentence of imprisonment. As explained by Lander J, in Cadd (at 201):

For each further offence of driving whilst under suspension the prospects of the offender being imprisoned and/or failing to satisfy a sentencing Magistrate that good reason exists for suspending the sentence, increase. A person who commits a second or subsequent offence will, because of the circumstances of the offence, be more likely to be imprisoned in relation to that offence. That is because a second offence would ordinarily exhibit contumacy on the part of the offender. So also will that person be more likely to be unable to satisfy the court that good reason exists for the suspension of the sentence. Again however, in my opinion, having regard to the fact that this type of offence is simply one which must be considered in relation to the circumstances of the offence and the circumstances of the offender it would be inappropriate to lay down any further guidelines than that.

Similarly, Mullighan J, in Cadd (at 180):

Of course, different considerations must apply to the offender who is before the Court on this charge for a second or subsequent occasion. Circumstances which would justify other than a sentence of imprisonment actually to be served do not readily come to mind, but that is not to say that they cannot exist.

Progressive steps must be taken in determining penalty

The Court is required to approach the sentencing task by progressive steps to determine the appropriate penalty in the individual case. English v Police [1997] SASC 6266 (Unreported, Lander J, 22 July 1997), which was one of the first appeal cases after Cadd. The appellant had been sentenced to an immediate term of imprisonment for 21 days just prior to the decision in Cadd. Counsel for the appellant submitted that the appellant believed the disqualification had expired at the time he drove. The appeal was allowed and the matter remitted back to the summary court for sentencing afresh and to hear evidence if necessary. The sentencing Magistrate would have to first satisfy him or herself whether the circumstances amounted to contumacious offending to determine whether a sentence of imprisonment should be imposed. If it were, the question of suspension would then need to be considered.

The procedural steps to determining penalty are:

1. Is the decision to drive whilst disqualified one which should be characterised as “contumacious”?

If so, then the starting point should be a sentence of imprisonment. If not, the court may find good reason to impose a lesser penalty such as a fine or community service.

For example, in Harshazi v Police (1998) 71 SASR 316; [1998] SASC 6663, the sentencing Magistrate did not first conclude that the driving was “contumacious”, describing it instead as “foolish”. The defendant had been detected driving at 162 kph in a 110 kph zone. He had been a passenger but had taken over driving while his friend consumed food bought at a service station stop. Justice Mullighan allowed the appeal stating (at 318):

[u]pon consideration of the circumstances of the offending, a foolish and not contumacious act, and the personal circumstances of the appellant, application of the sentencing standard in Cadd would not lead to a sentence of imprisonment.

[see Nash v Police [2009] SASC 112; Scholes v Police [2005] SASC 116; Rhodes v Police [1999] SASC 191 regarding “foolish” offending; White v Police (2000) 76 SASR 430;[2000] SASC 127) for “foolish and unthinking”; Wright v Police [2005] SASC 462for employment; Lennon v Police (2005) 238 LSJS 185;[2005] SASC 11) for good explanation of "contumacious"]

2. Where the driving is found to have been contumacious the court should have regard to the personal circumstances of the offender to consider whether there is good reason to suspend a sentence of imprisonment.

Circumstances such as previous good character, age, medical or mental health factors, whether the offence was premeditated, whether the defendant has employment, whether the defendant’s incarceration would cause hardship for any dependants, whether there were any extenuating circumstances in the context of the decision to drive under disqualification are among the circumstances which the court may have regard to.

On this point, Justice Lander in Johns v Police [1998] SASC 6729, said (at 7):

However, even if it is contumacious behaviour it will not necessarily give rise to an immediate sentence of imprisonment. There will still need to be an inquiry into whether good reason exists for suspending the sentence (s 38 Criminal Law (Sentencing) Act 1988).

3. Where the driving is found not to be contumacious or may be characterised as trivial or committed in the context of genuine emergency the full range of sentencing options and principles arising under the Criminal Law (Sentencing) Act 1988 is available to the sentencing Magistrate.

There would appear to be no reason why the court should not consider exercising its discretion under the Criminal Law (Sentencing) Act 1988 section 16 to refrain from ordering that a conviction be recorded [see Bates v SA Police (1997) 70 SASR 66; [1997] SASC 6430); Valentincic v Police [1997] SASC 6477 for examples]. However, it must be conceded that without conviction cases would be rare in view of the serious nature of the offence. In addition to trivial or emergency situation examples, driving which would be accepted as non-contumacious would normally include those cases where the driver has acted under a mistake of law, such as where the driver was in genuine error as to the operative dates of the disqualification, or the time at which the disqualification came into effect or expired, or was under an honest but not reasonable misapprehension as to the operation of an administrative disqualification by the Registrar of Motor Vehicles. However, prosecution may challenge the “non-contumacious” basis of a plea of guilty and the defendant and any witnesses may be required to give evidence on oath as to the circumstances and state of mind which led to the driving.

When is driving "contumacious"?

There still exist opposing judicial views as to the type of driving which should be held to exhibit “contumaciousness”.

In Bates v Police, Perry J stated (at 73):

... the law draws a distinction between conduct which is merely wilful and conduct which is contumacious, the latter apparently involving some element of defiance ... I am of the view that to satisfy the element of defiance necessary to convert a wilful disobedience of an order of suspension into a contumacious breach of the section, it is sufficient that a person who well knows that he or she is disqualified from driving, deliberately drives in circumstances in which the passage of driving is more than momentary or for a short distance, such as removing a car from a street into an adjacent driveway, and is not ameliorated by reference to circumstances such as an emergency or some other form of duress.

In Harshazi v Police, Mullighan J disagreed (at 319, 320):

After considering the meaning of contumacious and concluding, correctly in my view, that “the law draws a distinction between conduct which is merely wilful and conduct which is contumacious, the latter apparently involving some element of defiance”, which is the view expressed in Cadd, Perry J went on to say ... It is not appropriate, in my view, in effect to circumscribe the circumstances which amount to contumacious offending in the manner expressed by Perry J. The offending may not be contumacious even though the driving is over more than a short distance and in circumstances [that] do not involve an emergency of duress. The present case is an example. The offending was foolish, not contumacious. If the meaning of contumacious in the present context was defined in that way so as to exclude only very few types of cases from its reach, there would be a very different sentencing standard than that expressed by the majority in Cadd.

"Defiance"

Of particular note, both views (as cited above) appear to be in agreement that ‘the law draws a distinction between conduct which is merely wilful and conduct which is contumacious, the latter apparently involving some element of defiance’. The quality of “defiance” required to characterise the driving as contumacious was discussed by Lander J in Johns v Police (at 7):

Because the test is contumacy the inquiry must be more directed to attitude. The reasons for driving a motor vehicle, in circumstances where the offender well knew that he or she had been ordered by a Court or by administrative action not to drive a motor vehicle, are important. If the driving exhibits an attitude of defiance then that would normally amount to contumacy and may call for a sentence of imprisonment. To drive a motor vehicle in circumstances where the person is disqualified because it is convenient to do so and because it would be inconvenient not to drive probably does suggest an attitude of defiance. It rather suggests that it does not suit the driver to obey the order of the Court. If the offender’s attitude exhibits defiance that would suggest contumacy.

Appeal cases where suspended imprisonment was held to be appropriate

The defendant was disqualified due to demerit points and was a first offender. He made regular arrangements for alternative transport to adjust to the disqualification and had arranged for a friend to drive him and his two sons to Port Pirie for a BMX race meeting. The friend was too intoxicated to drive them back to Adelaide three days later so the defendant drove. Lander J was not prepared to categorise his behaviour as contumacious because it did not indicate an attitude of total disregard of, and disobedience to the authority which had ordered the disqualification. Up until the point in time when he drove the car his behaviour had suggested appropriate obedience to the disqualifying authority [see Johns v Police [1998] SASC 6729].

The defendant was a 23-year-old man who drove his unregistered and uninsured car to obtain parts for it, but only thirteen days after the disqualification imposed. He had prior convictions for unregistered and uninsured driving. Perry J held that the driving was contumacious and that an immediate sentence of imprisonment would have been appropriate were it not for the effect of his incarceration on the two young children of his sister to whom he was sole de facto parent, his sister having suicided in custody some four years before. The effect on dependants is a matter which must be taken into account in accordance with the Criminal Law (Sentencing) Act 1988 section 10 [see Bates v Police (1997) 70 SASR 66; [1997] SASC 6430].

The defendant was disqualified for a PCA offence. The sentencing Magistrate characterised the defendant’s act of taking over the driving whilst his friend consumed food bought at a service station stop, and in so doing driving at 162 kph in a 110 kph zone, as “foolish”. The defendant received an immediate term of imprisonment of two weeks. Mullighan J substituted this penalty with an order for 50 hours community service on the basis that the Magistrate did not conclude that the offending was contumacious and did not have sufficient regard to the personal circumstances of the appellant and in particular to his employment and family circumstances [see Harshazi v Police (1998) 71 SASR 316; [1998] SASC 6663].

The defendant’s only prior conviction was for the PCA offence which had led to his disqualification, and he had positive character references from his employers. The driving was “one-off” in nature: the defendant had been riding his bicycle to work regularly and had not told his employer of his disqualification, fearing he would be dismissed. On the occasion of the offence, the employer had unexpectedly required him to travel to an associated place of work at the end of his late shift when no public transport was available. The defendant panicked, rode his bicycle home to get his car and drove to the required destination. On appeal it was held not to be a premeditated, positive act of defiance with a number of substantial mitigating features. The original sentence of immediate imprisonment for a period of seven days was set aside, and a sentence of twenty-one days imprisonment (suspended) substituted [see Theophilus v Police [1998] SASC 6521].

The defendant was disqualified by order of the Registrar of Motor Vehicles for non-payment of fines. He drove from home to Hungry Jack’s because he ‘just wanted a burger’ and intended to drive back home. He had a de facto wife and a five-year-old child, and he had undergone training and obtained permanent employment since the offence. He was ordered to serve an immediate term of imprisonment for a period of twenty-one days. On appeal, it was held that the offending was contumacious and warranted a term of imprisonment but it would be appropriate to suspend the term of imprisonment. The grounds for this decision was based upon the realisation that an immediate term of imprisonment would likely undo the rehabilitation undertaken by the appellant during the six months between the offence and the date of the hearing [see Hinds v Police[1997] SASC 6259 (Unreported, Lander J, 15 July 1997). This was a decision handed down soon after Cadd ].

Appeal cases where immediate imprisonment was upheld

The defendant had received concurrent sentences of twenty-one days each for driving whilst disqualified and driving under the influence of alcohol. He had been disqualified as a result of a previous PCA offence but had never before served a custodial sentence. He had driven from Murray Bridge to Mannum reluctantly and under a considerable degree of pressure from his intoxicated friend, his own judgement being impaired by alcohol. Olsson J held the breach to be clearly contumacious saying: ‘... even if he was in an alcoholic haze at the time, the appellant well appreciated the seriousness of driving in the manner in which he did, and of the possible consequences of that driving.’ Although the situation was ‘perhaps somewhat near to the borderline in relation to consideration of suspension’ there was nothing that would take the case out of the usual run-of-the-mill cases of this type and no error found in declining to suspend [see Valentincic v Police [1997] SASC 6477].

The defendant drove a friend’s vehicle from a city hotel with a blood alcohol reading of 0.254. This was his fourth drink driving offence in the space of six years. It was argued that a requirement to serve a sentence of immediate imprisonment would result in a loss of employment and would cause distress to his ill and elderly Greek parents. On appeal it was held that an antecedent record for “like” offences and an extreme degree of intoxication were aggravating factors which could not be mitigated by the submission that he was so befuddled by his state of intoxication as to take the driving out of the “contumacious” category [see Drivas v Police [1998] SASC 6520].

The defendant had received an immediate sentence of imprisonment of fourteen days. He was a fifty-five-year-old grandfather on a disability support pension. He had taken his six-year-old grand-daughter to the Royal Show and had returned to his wife’s house with her to get a lift home. His wife was not home and the house was locked. There was no public transport available and no money for a taxi. It was raining heavily and the child was crying with discomfort. The defendant took the spare car key from outside the house and drove home with the child. On appeal, despite some sympathy for the circumstances, it was found there was no error in not exercising the discretion to suspend. Leniency was appropriately shown by ordering an immediate sentence of imprisonment of fourteen days only [see French v Police [1998] SASC 6532].

The defendant was a sole parent to two young children. She drove to pick her sons up from an access visit with their father, when a prior arrangement fell through due to her mother’s illness. There was a background of severe violence from the children’s father and a psychiatrist’s report advising against imprisonment. A sentence of ten days imprisonment to be served was upheld [see Ballone v Police [1998] SASC 6534].

The defendant had a background of post-traumatic stress disorder and clinical depression. He was disqualified as a result of a PCA offence. When driving under disqualification he had a blood alcohol reading of 0.227. The defendant had not intended to drive but had run out of alcohol and took his girlfriend’s car keys from the table without thinking, to go to the hotel for more alcohol. An order to serve twenty-eight days imprisonment was upheld on appeal. While the background and circumstances of the appellant did justify some compassion, the driving was contumacious and aggravated by the high blood alcohol reading in the context of the prior PCA disqualification [see Wood v Police [1998] SASC 6543].

The defendant had a deplorable record including offences involving the use of motor vehicles. The drive whilst disqualified offence was committed while the defendant was on parole. He rode a motorcycle a short distance from a reserve at Morgan to the house where the motorcycle was kept. Psychiatrist’s and parole officer’s reports indicated that a sentence of imprisonment would have a detrimental effect on his continuing rehabilitation. On appeal it was held that although this was not a particularly serious example of an offence of its type, it was nevertheless not a case of a minor breach nor one committed by a first offender. Therefore there was no proper basis for suspending. The sentence with a non-parole period of twenty-eight days was appropriate [see Cox v Police[1997] SASC 6110 (Unreported, Duggan J, 11 July 1997)].

Mitigation of penalty

The degree of defiance in the offending will be important in consideration of penalty [see Johnston v Wilkinson (1983) 11 A Crim R 140]. The Court will look at the following factors in determining defiance:

  • whether the offence was pre-meditated;
  • whether the offence demonstrated a flagrant disregard of the disqualification order;
  • if the offence was committed at an early stage of this disqualification;
  • if the driver was placed in an unusual situation of real emergency;
  • the gravity of the offence;
  • whether there was a concentration of alcohol in the defendant’s blood;
  • the manner of driving;
  • whether speeding was involved, or recklessness;
  • whether it was a minor breach of an unintentional nature, such as miscalculating the date.

Defying a disqualification order for the purpose of engaging in unlawful activities such as driving a “getaway car” is a serious offence. Driving whilst disqualified, coupled with a manner of driving which breaches any provisions in the Road Traffic Act 1961, and particularly where that breach repeats the breach that resulted in the initial disqualification, will be viewed seriously by the Court [see Evans v Higgins (1989)153 LSJS 454].

Defence of honest and reasonable mistake of fact

The defence of honest and reasonable mistake of fact is available for the offence of drive whilst disqualified [see Davis v Bates (1986) 43 SASR 149]. This defence may arise where the driver claims that he or she was unaware of disqualification, such as where the driver was not present in court when the order was made or where the driver doesn't receive a demerit point notice informing him or her of a licence disqualification.

NO NOTIFICATION OF DISQUALIFICATION

It is important for the duty solicitor to note that if a person is disqualified other than by court order and denies receiving notification of that disqualification, it is up to the prosecution to prove that the notice was received. Without such proof the charge would ordinarily be withdrawn after negotiations.

Appeal cases on the defence of honest and reasonable mistake of fact

Appeal cases on defence of honest and reasonable mistake of fact

The defendant was convicted of illegal use of a motor vehicle and disqualified until further order. The defendant was under the impression that he was disqualified for nine months and had applied and received a licence after the nine months had elapsed. On appeal it was held that no offence is committed if there is an honest and mistaken belief, based on reasonable grounds, as to the state of facts, which if true, would render the act itself innocent [see Davis v Bates (1986) 43 SASR 149].

The defendant was disqualified for a breach of probationary conditions and disqualified for three months until the twenty-fifth of January. He was caught driving on the twenty-fifth of January and raised the defence of an honest mistaken belief on reasonable grounds. On appeal it was held that the mistaken belief as to the effect of the endorsement on the licence was a mistake of law and the defence was therefore not available. The defendant made a mistake about the interpretation of the true effect in law of the endorsement on his licence which stated ‘disqualified to 25th January 1988’. That is, he was mistaken as to the legal significance of the relevant facts, whereas a mistake of fact would be where the driver made a mistake as to the actual facts [see Khammash v Rowbottom (1989) 51 SASR 172; Webb v Owen[1991] SASC 3207 (Unreported, Legoe J, 12 December 1991); Police v Pace (2008) 186 A Crim R 113; [2008] SASC 182].

Alcohol/ Drugs and Driving Offences

The Road Traffic Act 1961 creates three major offences involving the combination of driving and drugs or alcohol. These are commonly known as:

  • DUI (driving under the influence of alcohol or drugs);
  • PCA (driving with a prescribed concentration of alcohol); and
  • refusing to blow (refusing to comply with directions in relation to a breath test).

Alcohol and drug testing

A police officer can require a person to take a breath test in a number of circumstances including where that person was involved in an accident, has committed a driving offence, or where the person’s manner of driving shows that they may be affected by alcohol.

A police officer may also require the driver of any motor vehicle that approaches a random breath testing station to submit to an alcotest, which is a small hand held unit that drivers blow into, usually without leaving their vehicles. Alcotest units must comply with the requirements of the Road Traffic Act 1961 [see s 47H].

The police have a broad power to require a person to submit to an alcotest or breath analysis, or both. A police officer can require a person to submit to an alcotest where that police officer believes on reasonable grounds that a person is driving, or has driven a motor vehicle; is attempting, or has attempted to put a motor vehicle in motion; or is acting, or has acted as a qualified supervising driver for the holder of a permit or licence [see Road Traffic Act 1961s 47E(1)]. In addition, a police officer can randomly direct a person driving a vehicle to stop the vehicle and submit to an alcotest or breath analysis [see ss 47E(2); s 47EA for exercise of random testing powers]. A person may not, in the exercise by police of random testing powers, be required to submit to a breath analysis unless an alcotest indicates that the prescribed concentration of alcohol may be present in the blood of the person [see s 47E(2ab)]. An alcotest or breath analysis may not be commenced more than eight hours after the conduct of the person which gave rise to the requirement [see s 47E(2b)].

When an alcotest shows that the prescribed concentration of alcohol may be present in the blood of a driver, the driver can be required to submit to a breath analysis. If the breath analysis indicates the prescribed concentration of alcohol, the police officer who conducted the test must tell the driver of their right to have a blood test taken and that, if a blood test is not taken, the result of the breath test cannot be challenged in court [see Road Traffic Act 1961 s 47K(2a)(a); Road Traffic (Miscellaneous) Regulations 2014 regs 21 and 22]. Furthermore, a police officer may request further testing by way of a drug screening test, an oral fluid analysis, or a blood test in certain circumstances [see Road Traffic Act 1961 s 47EAA for further information].

Driving under the influence of alcohol (DUI)

It is an offence to drive a vehicle, or attempt to put a motor vehicle in motion, while so much under the influence of intoxicating liquor (or a drug) as to be incapable of exercising effective control of the vehicle [see Road Traffic Act 1961 s 47; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 r 4(b)].

First Offence: a fine of not less than $1100 and not more than $1600, or imprisonment for not more than three months, and a mandatory licence disqualification for not less than twelve months [see Road Traffic Act 1961 ss 47(1)(a) and 47(3)(a)(i)].

Subsequent Offence: a fine of not less than $1900 and not more than $2900, or imprisonment for not more than six months, and a mandatory licence disqualification for not less than three years [see ss 47(1)(b) and 47(3)(a)(ii)].

In the case of a first offence, where the Court is satisfied by evidence given on oath that the offence is trifling the court may order a lesser period of disqualification but for not less than one month [see s 47(3)(b)]

For the purposes of this offence, a person is deemed to be incapable of exercising effective control of a vehicle if any physical or mental faculty is lost or appreciably impaired [see s 47(2)]. It is therefore possible to be convicted of driving under the influence of alcohol even if the blood alcohol level is less than the prescribed concentration. In attempting to prove charges of driving under the influence, prosecution submit evidence of the manner in which the vehicle was being driven and any signs of intoxication, for example the smell of alcohol about the driver, unsteadiness, watery or bloodshot eyes, and slow or slurred speech.

Prescribed concentration of alcohol (PCA)

It is an offence for a person to drive a motor vehicle, or attempt to put a motor vehicle in motion while there is present in his or her blood the prescribed concentration of alcohol [see Road Traffic Act 1961 s 47B(1); Motor Vehicles Act 1959 s 81C for licence disqualification upon expiation; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 reg 4(b)]. The prescribed concentration of alcohol is a concentration of .05 grams or more of alcohol in 100 millilitres of blood. For unlicensed, learner or probationary drivers the prescribed concentration of alcohol is zero [see Road Traffic Act 1961 s 45A for definition]. The following penalties apply:

Category One Offence

Where the concentration of alcohol is more than .05 and less than .08 grams in 100 millilitres of blood [see Road Traffic Act 1961 s 45A for definition; s 47B(1) for penalties; s 47B(3) for licence disqualifications].

First Offence: $1100 fine and mandatory licence disqualification for not less than three months.

Second Offence: $1100 fine and mandatory licence disqualification for not less than six months.

Third Offence: $1100 fine and mandatory licence disqualification for not less than nine months.

Subsequent Offence: $1100 fine and mandatory licence disqualification for not less than twelve months.

Category Two Offence

Where the concentration of alcohol is less than .15 grams, but not less than .08 grams, in 100 millilitres of blood [see Road Traffic Act 1961 s 45A for definition; s 47B(1) for penalties; s 47B(3) for licence disqualifications].

First Offence: a fine of not less than $900 and not more than $1300 and mandatory licence disqualification for not less than six months.

Second Offence: a fine of not less than $1100 and not more than $1600 and mandatory licence disqualification for not less than twelve months.

Third Offence: a fine of not less than $1500 and not more than $2200 and mandatory licence disqualification for not less than two years.

Subsequent Offence: a fine of not less than $1500 and not more than $2200 and mandatory licence disqualification for not less than two years.

Category Three Offence

A concentration of alcohol of .15 grams or more in 100 millilitres of blood [see Road Traffic Act 1961 s 45A for definition; s 47B(1) for penalties; s 47B(3) for licence disqualifications].

First Offence: a fine of not less than $1100 and not more than $1600 and mandatory licence disqualification for not less than twelve months.

Second Offence: a fine of not less than $1600 and not more than $2400 and mandatory licence disqualification for not less than three years.

Third Offence: a fine of not less than $1900 and not more than $2900 and mandatory licence disqualification for not less than three years.

Subsequent Offence: a fine of not less than $1900 and not more than $2900 and mandatory licence disqualification for not less than three years.

In determining whether an offence is a first, second, third or subsequent offence, any previous drink or drug driving offence for which the defendant has been convicted by a court within the prescribed period immediately preceding the date on which the offence under consideration was committed will be taken into account [see Road Traffic Act 1961s 47B(4)]. The prescribed period is three years in the case of a previous offence that is a category one offence (that being an offence against section 47B(1) involving a concentration of alcohol of less than .08 grams in 100 millilitres of blood) and five years in any other case [see s 47A(3) for definition of prescribed period].

In the case of a first offence, where the court is satisfied by evidence given on oath that the offence is trifling the court may order a lesser period of disqualification but not for less than one month [see s 47B(3)(b)].

The definitions for category 1, 2 and 3 offences came into effect on 1 May 2009, and apply to any offence which occurred on or after that date [see Statutes Amendment (Transport Portfolio-Alcohol and Drugs) Act 2009].

VOLUNTARY BLOOD TEST
When a person’s blood alcohol level is ascertained by a breath test, it is presumed to have been the person’s blood alcohol level for the two hours immediately before the test [see Road Traffic Act 1961 s 47K(1)]. As this presumption cannot be challenged in court in any way except by the results of a blood test, whenever a breath analysis reading shows 0.08 or more the person should consider asking that a blood test be taken.

Driving with prescribed drug present in oral fluid or blood

It is an offence for a person to drive a motor vehicle, or attempt to put a motor vehicle in motion while a prescribed drug is present in his or her oral fluid or blood [see Road Traffic Act 1961 s 47BA; Motor Vehicles Act 1959 s 81D for licence disqualification upon expiation; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 reg 4(b)]. For the purposes of this section, a prescribed drug is: delta-9-tetrahydrocannabinol, methyl amphetamine or 3, 4-methylenedioxymethamphetamine (MDMA) [see Road Traffic (Miscellaneous) Regulations 2014 reg 16].

First Offence: a fine of not less than $900 and not more than $1300 and mandatory licence disqualification for not less than three months.

Second Offence: a fine of not less than $1100 and not more than $1600 and mandatory licence disqualification for not less than six months.

Third Offence: a fine of not less than $1500 and not more than $2200 and a mandatory licence disqualification for not less than twelve months.

Subsequent Offence: a fined of not less than $1500 and not more than $2200 and a mandatory licence disqualification for not less than two years.

In determining whether an offence is a first, second, third or subsequent offence, any previous drink or drug driving offence(s) for which the defendant has been convicted by a court within the prescribed period immediately preceding the date on which the offence under consideration was committed will be taken into account [see Road Traffic Act 1961s 47BA(5)]. The prescribed period is three years in the case of a previous offence that is a category one offence (that being an offence against section 47B(1) involving a concentration of alcohol of less than .08 grams in 100 millilitres of blood) and five years in any other case [see s 47A(3) for definition of prescribed period].

WHERE CHARGES ARE LAID FOR DUI AND PCA
Where a defendant is pleading guilty, and charges have been laid for both DUI and PCA arising from the same incident or set of facts, the Court should first deal with the DUI offence. After that offence has been dealt with, if the PCA charge is not withdrawn by the police, it should be dismissed without proceeding to conviction or penalty [see Police v Jozinovic (2004) 40 MVR 385;[2004] SASC 64].

Refusing a breath test

It is an offence to refuse or fail to comply with all reasonable directions of a police officer in relation to the requirement to submit to an alcotest or breath analysis, particularly to refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted [see Road Traffic Act 1961 s 47E(3) for offence and defences; Jasinski v Police (2004) 234 LSJS 262; [2004] SASC 183 for strict liability offence].

First Offence: a fine of not less than $1100 and not more than $1600 with mandatory licence disqualification for a period not less than twelve months.

Subsequent Offence: a fine of not less than $1900 and not more than $2900 with mandatory licence disqualification for a period not less than three years [see Road Traffic Act 1961 s 47E(3); s 47E(6) for mandatory licence disqualifications].

In the case of a first offence, where the court is satisfied by evidence given on oath that the offence is trifling the Court may order a lesser period of disqualification but for not less than one month [see s 47E(6)(b)].

In determining whether an offence is a first or subsequent offence, any previous drink or drug driving offence(s) for which the defendant has been convicted by a court within the prescribed period immediately preceding the date on which the offence under consideration was committed will be taken into account [see s 47E(7)]. The prescribed period is three years in the case of a previous offence that is a category one offence (that being an offence against section 47B(1) involving a concentration of alcohol of less than .08 grams in 100 millilitres of blood) and five years in any other case [see s 47A(3) for definition of prescribed period].

Penalties for drink driving offences

Most of the offences for drink and drug driving under the Road Traffic Act 1961 provide that where a person has been convicted by a court previously for a drink or drug driving offence, and that has occurred within the “prescribed period” immediately preceding the date on which the offence under consideration occurred, those previous offences will be taken into account to determine whether the offence is a first, second, third or subsequent offence.

Section 47A provides the “prescribed period” is three years in the case of a previous offence that is a category one offence (that being an offence against section 47B(1) involving a concentration of alcohol of less than .08 grams in 100 millilitres of blood) and five years in any other case [see s 47A(3) for definition of prescribed period].

On this basis, if a person commits an offence having committed a drink or drug driving offence within the previous five years, they are to be dealt with as a second or subsequent offender.

A person who has committed an offence more than five years earlier will be given a penalty within a first offence category, but the Court may choose to take the previous offence into account and give the driver a higher penalty within that range.

The Court has very limited power to reduce the penalties below the minimum. A court can reduce the minimum disqualification to one month for a first offence if it is satisfied that the offence is trifling. When deciding whether or not an offence is trifling, the court takes into account all of the surrounding circumstances, including the blood alcohol level, the extent of impairment of faculties, the locality, the nature and extent of the driving and the actual or potential damage to the public. A low alcohol reading alone will not be enough to be considered trifling; there must be additional circumstances that are rare and exceptional. A person’s need for a licence is also not relevant. Only rarely will an offence be considered trifling.

Most defendants lose their licence for at least the minimum period, and it is not possible to retain a driver’s licence, even on a restricted basis such as during working hours, even if a defendant establishes that he or she will lose employment as a result. When the disqualification period is over, a person must hold a probationary licence for at least one year.

Section 47J assessment for recurrent offenders

Where a defendant is convicted of a prescribed offence that was committed in metropolitan Adelaide before 1 February 2010, and he or she has previously been convicted of a prescribed offence committed within three years before the date of the later offence, the court must, upon conviction for the later offence and before imposing any penalty, order that the person attend an assessment clinic to determine whether the person is dependent on alcohol or drugs or both [see Road Traffic Act 1961 s 47J; Road Traffic (Miscellaneous) Regulations 2014 reg 26]. A prescribed offence is any offence against:

  • section 47(1): DUI; or
  • section 47B(1): PCA (but does not include an offence against section 47B(1) that is a category one offence); or
  • section 47E(3): refuse an alcotest or breath test; or
  • section 47I(14): refuse to submit to a blood sample) [see Road Traffic Act 1961 s 47J(12) for definition].

The assessment clinic will report to the court on its examination of a defendant. A court that is satisfied that a defendant suffers from alcoholism, or addiction to a drug, must disqualify that person from holding or obtaining a driver’s licence until further order [see Road Traffic Act 1961 s 47J(4)]. It is important to note that if a defendant is ordered to attend a 47J assessment, and does not attend the appointment, the court has the power treat them as if they do suffer from alcoholism or drug addiction, and disqualify them until further order [see s 47J(4)].

To once again be licensed, a person subject to an order may apply to the court for its revocation following the minimum period of disqualification to which he or she would have been liable if dealt with otherwise than under section 47J. This disqualification period also takes into account any disqualification under an instant loss of license.

The Court may revoke an order on the basis that a person no longer suffers from alcoholism or drug addiction or that there is other proper cause for him or her to be allowed to drive, and it may grant a full or conditional licence. Before applying to the Court for this order, a person must submit to a further assessment by the assessment clinic, which then makes a report to the Court [see s 47J].

Alcohol Interlock Scheme conditions

An alcohol interlock device is a breath testing device fitted to a motor vehicle that requires a person to pass a breath alcohol test before they can start their motor vehicle or continue to operate the vehicle. The Statutes Amendment (Transport Portfolio-Alcohol and Drugs) Act 2009 substantially amended the provisions in relation to the Alcohol Interlock Scheme by repealing Division 5A of the Road Traffic Act 1961 sections 48 to 53AA as of 1 May 2009, and introducing sections 81E to 81H into the Motor Vehicles Act 1959 effective from 1 May 2009.

As a consequence, there is currently a mandatory alcohol interlock scheme in accordance with section 81E of the Motor Vehicles Act 1959, and a transitional voluntary alcohol interlock scheme in accordance with schedule 6, clause 1 of that Act. The transitional conditions apply where prior to 1 May 2009, a person has received notice from the Registrar of Motor Vehicles or an order from a court which allows him or her to partake in the alcohol interlock scheme after the half-way point on their licence disqualification [see Motor Vehicles Act 1959 - Schedule 6(1) for further information and penalties].

In accordance with the Motor Vehicles Act 1959 section 81E(3), if a person who applies for a licence has been disqualified by an order of a court on conviction for a serious drink driving offence (which is any drink driving offence but not a category one offence or a category two, first offence) which was committed on or after commencement of this section, and that person has not held a licence since the end of the period of disqualification, a licence issued to that person must be subject to mandatory alcohol interlock scheme conditions [see Motor Vehicles Act 1959 s 81E(1) for definition of serious drink driving offence; s 81E(3)(3) for the prescribed minimum period; s 81F for alcohol interlock conditions; s 81H for contravention penalties].

The new alcohol interlock scheme conditions came into effect on 1 May 2009, and apply to any offence which occurred on or after that date [see Statutes Amendment (Transport Portfolio-Alcohol and Drugs) Act 2009].

Serious driving offences

Aggravating factors

Aggravating factors are those factors particular to the offence, the victim or the defendant which may warrant a higher penalty.

The Criminal Law Consolidation Act 1935 contains specific maximum penalties for basic and aggravated offences [see s 5 for interpretation]. Factors which aggravate an offence committed whilst using a motor vehicle are:

  • for an offence of causing death or harm by dangerous driving: that the offence was committed whilst attempting to escape pursuit by police [see s 5AA(1a)(a)];
  • in relation to dangerous driving to avoid police pursuit: that the motor vehicle was stolen or subject to an illegal use [see s 5AA(1b)(a)];
  • for an offence of causing death or harm by dangerous driving: that at the time of the offence the offender was driving whilst disqualified [see s 5AA(1a)(b)];
  • for an offence of causing death or harm by dangerous driving: that the offence was committed as part of a prolonged, persistent and deliberate course of very bad driving or vessel operation [see s 5AA(1a)(c)];
  • for an offence of causing death or harm by dangerous driving: that the offender committed the offence while there was present in his or her blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood [see s 5AA(1a)(d)];
  • for an offence of causing death or harm by dangerous driving: that at the time of the offence, the offender was driving a vehicle (or operating a vessel) at excessive speed, or whilst under the influence of alcohol or prescribed drugs such that the offender was incapable of exercising effective control of the vehicle (or vessel) [see s 5AA(1a)(e)];
  • in relation to dangerous driving to avoid police pursuit: that the offender was driving whilst disqualified [see s.5AA(1b)(b)];
  • in relation to dangerous driving to avoid police pursuit: that the offender committed the offence while there was present in his or her blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood [see s.5AA(1b)(c)];
  • in relation to dangerous driving to avoid police pursuit: that at the time of the offence, the offender was driving a motor vehicle whilst under the influence of alcohol or prescribed drugs such that the offender was incapable of exercising effective control of the vehicle [see s 5AA(1b)(d)].

For further information in relation to aggravating factors see the Sentencing chapter.

Reckless and Dangerous Driving

It is an offence to drive a vehicle recklessly or at a speed or in a manner which is dangerous to any person. The maximum penalty is imprisonment for two years [see Road Traffic Act 1961 (SA) s 46(1); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 reg 4(b)].

A mandatory licence disqualification applies:

  • for a first offence, for a period not less than twelve months;
  • for a subsequent offence, for a period not less than three years [see Road Traffic Act 1961 (SA) s 46(3)].

In determining whether the offence is a first or subsequent offence, only a previous offence against section 46(1) for which the defendant has been convicted, and which was committed within the period of five years immediately preceding the commission of the offence under consideration, will be taken into account [see s 46(4)].

In considering whether an offence has been committed under this section, the Court must take into account a number of factors, including the nature, condition and use of the road on which the alleged offence occurred, the amount of traffic on the road at the time of the alleged offence, the amount of traffic reasonably expected to enter the road from other roads and places, and all other relevant circumstances [see s 46(2)].

Dangerous driving to escape police pursuit

It is an offence to drive a motor vehicle in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to any person intending to escape pursuit by police or cause police to engage in a pursuit [see Criminal Law Consolidation Act 1935 (SA) s19AC(1)]. The maximum penalty for a basic offence is imprisonment for three years and mandatory licence disqualification for not less than two years. The maximum penalty for an aggravated offence is imprisonment for five years and mandatory licence disqualification for not less than two years [see Criminal Law Consolidation Act 1935 (SA) ss 19AC(1) and 19AC(2)].

Using motor vehicle without consent

It is an offence to drive, use or interfere with a motor vehicle without first obtaining the consent of the owner of the vehicle [see Criminal Law Consolidation Act 1935 s 86A]. For a first offence the maximum penalty is imprisonment for two years, for a subsequent offence imprisonment for not less than three months and not more than four years. There is also a mandatory licence disqualification for twelve months [see s 86A(2)].

Causing death or injury by driving

OFFENCES RELATED TO DEATH OR INJURY
Where a person has been killed or injured in a motor vehicle accident as a result of the driver driving with undue care, or dangerous or reckless driving, the person responsible may face serious charges. As such, these matters are much more serious than regular traffic offences and are considered criminal offences. They are not to be dealt with by duty solicitors other than on the basis of a remand or bail application. The following information is included for completeness.

Reckless and dangerous driving which causes death or harm

Causing death

It is an offence to drive a vehicle in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to any person, and by that culpable negligence, recklessness or other conduct, cause the death of another [see Criminal Law Consolidation Act 1935 (SA) s19A(1)]. The maximum penalty for a first offence which is a basic offence is imprisonment for fifteen years and mandatory licence disqualification for ten years or longer as the Court sees fit. The maximum penalty for a first offence which is an aggravated offence or for a subsequent offence is imprisonment for life and mandatory licence disqualification for ten years or longer as the Court sees fit [see s19A].

Causing harm

It is an offence to drive a vehicle in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to any person and by that culpable negligence, recklessness or other conduct, cause harm to another [see Criminal Law Consolidation Act 1935 (SA) s19A(3)]. Where serious harm was caused to a person, the maximum penalty for a first offence which is a basic offence is imprisonment for fifteen years and mandatory licence disqualification for ten years or longer as the Court sees fit. The maximum penalty for a first offence which is an aggravated offence, or for a subsequent offence is imprisonment for life and mandatory licence disqualification for ten years or longer as the Court sees fit [see s 19A].

Where serious harm was not caused the maximum penalty for a first offence which is a basic offence is imprisonment for five years and mandatory licence disqualification for one year or longer as the Court sees fit. The maximum penalty for a first offence which is an aggravated offence or for a subsequent offence is imprisonment for seven years and mandatory licence disqualification for three years or longer as the Court sees fit [see s 19A].

Aggravated driving without due care

It is an offence to drive without due care or attention or without reasonable consideration for other persons using the road [see Road Traffic Act s 45(1)]. Where a court convicts a person for an aggravated offence against this section, the maximum penalty is imprisonment for twelve months and mandatory licence disqualification of not less than six months [see Road Traffic Act s 45(2); Arthur v Police (2008) 101 SASR 529; [2008] SASC 213; Police v Jachmann (2010) 57 MVR 171; [2010] SASC 345; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 reg 4(b)].

An aggravated offence is:

  • an offence that caused death or serious harm to a person [see Road Traffic Act 1961 s 45(3)(a); s 45(5) for definition of “serious harm”]; or
  • an offence which was committed in the course of attempting to escape pursuit by police [see s 45(3)(b)(i)]; or
  • one where at the time of the offence the defendant was disqualified or suspended from driving [see s 45(3)(b)(ii)]; or
  • one where at the time of the offence, the offender had in his or her blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood [see s 45(3)(b)(iii)]; or
  • an offence where the offender was driving the vehicle in contravention of the Road Traffic Act 1961 section 45A (excessive speed) [see s 45(3)(b)(iv)]; or
  • an offence where the offender was driving the vehicle in contravention of the Road Traffic Act 1961 section 47 driving under the influence [see s 45(3)(b)(iv)].

Other related offences include cause death or physical harm by driving without due care and failure to satisfy the statutory obligations of a driver in relation to a car accident [see Criminal Law Consolidation Act 1935 s 19AB for further information].

Brief penalty summary

BRIEF PENALTY SUMMARY - TRAFFIC OFFENCES (as at 22 October 2014)

Description of offence Section Maximum Penalty (Fine/Imprisonment/Mandatory Licence Disqualification)
Motor Vehicles Act 1959    
     
Drive or cause unregistered motor vehicle to stand on road s 9(1) $7500
Own unregistered motor vehicle that is driven or standing on road s 9(3) $7500
Drive unlicensed s 74(1) $1250
Drive unlicensed (never held a licence) s 74(2)

First Offence: $2500

Subsequent offence: $5000 / 1 year / disqualification 3 years [see s 74(5)]

Drive unlicensed (previous disqualification for serious drink driving offence) s 74(2a) $5000 / 1 year / disqualification 3 years [see s 74(5)]
Drive disqualified s 91(5)

First Offence: / 6 months

Subsequent Offence: / 2 years

Fail to produce drivers licence (within 48 hours) s 96(1) $1250
False representation to police as to being the person named in licence s 96(3) $750
Fail to produce licence to a court s 97(1) $1250
Fail to immediately produce drivers licence (probationary, provisional licence or learner’s permit) s 98AAB $1250
Drive uninsured s 102(1) $10000
Owner of uninsured motor vehicle driven or standing on road s 102(2) $10000
Fail to notify insurer of accident causing death or injury to a person s 124(2) $1250 / 3 months
Fail to answer questions as to identity of driver s 137 $750
     
Road Traffic Act 1961    
     
Fail to stop motor vehicle at police request s 40H(5) $5000
Fail to provide personal details to police s 40V(4) $5000
Fail to stop, give assistance, and present to a police officer following involvement in an accident in which a person is killed or injured s 43(1) 5 years / disqualification not less than 1 year (but if trifling not less than 1 month) [see s 43(2)]
Misuse motor vehicle s 44B(5) Unspecified compensation may be payable
Due care s 45(1)
Aggravated offence: 12 months / disqualification not less than 6 months
Exceed a speed limit by 45 kilometres or more s 45A(1)

First Offence: not less than $1100 and not more than $1500 / disqualification not less than 6 months

Subsequent Offence: not less than $1200 and not more than $1700 / disqualification not less than 2 years

Drive recklessly or at a speed or in a manner which is dangerous s 46(1)

First Offence: 2 years / disqualification not less than 12 months

Subsequent Offence: 2 years / disqualification not less than 3 years

Driving under the influence (DUI) s 47

First Offence: not less than $1100 and not more than $1600 / or not more than 3 months / disqualification not less than 12 months (but if trifling not less than 1 month)

Subsequent Offence: not less than $1900 not more than $2900 / or not more than 6 months / disqualification not less than 3 years

Prescribed concentration of alcohol (PCA) s 47B(1)  
Category One Offence
less than .08 grams in 100 millilitres of blood
s 47B(1)

First Offence:$1100 / disqualification not less than 3 months (but if trifling disqualification not less than 1 month)

Second Offence: $1100 / disqualification not less than 6 months

Third Offence: $1100 / disqualification not less than 9 months

Subsequent Offence: $1100 / disqualification not less than 12 months

Category Two Offence
less than .15 grams, but not less than .08 grams in 100 millilitres of blood
s 47B(1)

First Offence: not less than $900 not more than $1300 / disqualification not less than 6 months (but if trifling disqualification not less than 1 month)

Second Offence: not less than $1100 not more than $1600 / disqualification not less than 12 months

Third Offence: not less than $1500 not more than $2200 / disqualification not less than 2 years

Subsequent Offence: not less than $1500 not more than $2200 / disqualification not less than 2 years

Category Three Offence
.15 grams or more in 100 millilitres of blood
s 47B(1)

First Offence: not less than $1100 not more than $1600 / disqualification not less than 12 months but if trifling disqualification not less than 1 month

Second Offence: not less than $1600 not more than $2400 / disqualification not less than 3 years

Third Offence: not less than $1900 not more than $2900 / disqualification not less than 3 years

Subsequent Offence: not less than $1900 not more than $2900 / disqualification not less than 3 years

Prescribed drug present in oral fluid or blood s 47BA(1)

First Offence: not less than $900 not more than $1300 / disqualification not less than 3 months

Second Offence: not less than $1100 not more than $1600 / disqualification not less than 6 months

Third Offence: not less than $1500 not more than $1800 / disqualification not less than 12 months

Subsequent Offence: not less than $1500 not more than $2200 / disqualification not less than 2 years

Fail to submit to an alcotest or breath analysis s 47E(3)

First Offence: not less than $1100 not more than $1600 / disqualification not less than 12 months but if trifling disqualification not less than 1 month

Subsequent Offence: not less than $1900 not more than $2900 / disqualification not less than 3 years

     
Australian Road Rules    
     
Fail to stop and give particulars Rule 287 $2500
     
Criminal Law (Consolidation) Act 1935    
     
Cause death by dangerous driving (where a motor vehicle was used in the commission the offence) s 19A(1)

Basic Offence (first offence): 15 years / disqualification for at least 10 years

Aggravated or any Subsequent Offence: imprisonment for life / disqualification for at least 10 years

Cause serious harm by dangerous driving (where a motor vehicle was used in the commission of the offence) s 19A(3)

Basic Offence (first offence): 15 years / disqualification for at least 10 years

Aggravated or any Subsequent Offence: imprisonment for life / disqualification for at least 10 years

Cause harm (but not serious harm) by dangerous driving (where a motor vehicle was used in the commission of the offence) s 19A(3)

Basic Offence (first offence): 5 years / disqualification for at least 1 year

Aggravated or any Subsequent Offence:

7 years / disqualification for at least 3 years

Drive without due care causing death and fail statutory obligations in relation to the incident s 19AB(1)

First Offence: / 15 years imprisonment / disqualification for at least 10 years

Subsequent Offence: imprisonment for life / disqualification for at least 10 years

Drive without due care causing physical harm and fail statutory obligations in relation to the incident s 19AB(2)

For serious harm:

First Offence: / 15 years imprisonment / disqualification for at least 10 years

Subsequent Offence: imprisonment for life / disqualification for at least 10 years

Not serious harm:

First Offence: / 5 years imprisonment / disqualification for at least 1 year

Subsequent Offence: / 7 years imprisonment / disqualification for at least 3 years

Dangerous driving to escape police pursuit s 19AC

Basic Offence: 3 years / disqualification for at least 2 years

Aggravated Offence: 5 years /disqualification for at least 2 years

Illegal use/interference motor vehicle s 86A

First Offence: 2 years / disqualification 12 months

Subsequent Offence: not less than 3 months and not more than 4 years / disqualification 12 months

     
Summary Offences Act 1953    
     
Fail to provide personal details, or provide false and misleading information s 74A(3) $1250 / 3 months
Fail to provide, or provide false information re identity of the driver of a motor vehicle s 74AB(2) $1250 / 3 months
     
Link to sa.gov.au - find what you're looking for

© Legal Services Commission 2017 - All Rights Reserved
Funded with the support of the Governments of Australia and South Australia Website by CeRDI