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A change in the law probably allows courts to count only prior offences committed in NSW

The Road Transport Act 2013 (NSW) defines certain serious traffic offences as “major offences.” Offences that cause the death of another driver, some drink driving and drug driving offences, menacing driving, and hit-and-run causing injury are examples of major offences.

When two major offences are committed within 5 years of each other, the second major offence is treated as a second offence. The penalties for a second offence are substantially more severe.

Other states have adopted similar definitions of major offences. But what if a driver was convicted of a major offence in another state and, less than 5 years later, was convicted of an offence in NSW? Will the new offence be treated as a second offence?

New Legislation

Before the Road Transport Act 2013 was adopted, courts counted a major offence from another state as a first offence, making a major offence conviction in NSW a second offence if it occurred within 5 years of the first offence. Courts relied on a provision of the former Road Transport (General) Act 1999 and related legislation in concluding that Australian states had adopted uniform laws so that traffic offences would be the same all across the country.

The current law repealed certain language that the court had relied upon. The law now defines a second or subsequent offence as a new offence that occurs within 5 years of:

  • an offence against the same law, or
  • an offence against a former corresponding law, or
  • an equivalent offence.

A “former corresponding law” is law that was repealed, if the new offence is simply a new or updated version of the same law.

The first two options are clearly referring to the laws of NSW. An offence under the law of another state would not count as a prior offence under either of those options. The question is therefore whether an offence committed in another state is an “equivalent offence.”

Equivalent Offences

For most traffic offences, the Road Transport Act 2013 (NSW) defines an “equivalent offence” as an offence that the Act or the Regulations adopted pursuant to the Act declares to be an equivalent offence.

At this point, nothing in the Road Transport Act 2013 or in the various Regulations declare an offence committed in another state to be an equivalent offence. For that reason, it seems likely that a court can no longer count a drink driving conviction (or any other major offence) from another state as a prior offence when punishing a driver for a new major offence committed in NSW.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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