Call Peter Proctor of Proctor & Associates for an appointment or just some helpful advice if your situation is pertaining to appeal licence suspension – NSW matters on 02 9687 3777 or email him directly at peter@proctorlaw.com.au.
By Peter C Proctor LL.B.
Accredited Specialist in Criminal Law
Proctor & Associates – April, 2016
Appeal Licence Suspension – NSW – Causes for Appeals
This Article deals with the following:
1. Speeding Suspensions
(i) P1 licence suspension
(ii) Over 30 & 45kph speed suspensions
2. Demerit Point Suspension
(i) Full Licence holders and
(ii) P1 & P2 Licence holders
Most of us from one time to another through our driving career, have found ourselves in the unenviable position of losing our licence. This can happen in a variety of ways, but generally it arises either because we incur an excess of demerit points or we commit a speeding offence of 30 or 45 kph over the speed limit. Sometimes it can involve a combination.
1. Speeding Suspensions
What should I do if I receive a Speeding Fine of over 30 or 45 kph and acknowledge the offence? – Should I pay the fine or take it to court?
As a defence lawyer, I am often confronted with these questions. Drivers are well aware, that if they receive a speeding fine for an offence of 30 or 45 kph over the speed limit, then they can expect a suspension or disqualification of their licence. Also, P 1 licence holders are now automatically suspended for any speeding fine.
The question is – what should you do? It is my view that the better option is to pay the fine and lodge an appeal against the suspension. However, you should contact your lawyer before doing so, if you have any doubts, in order to obtain legal advice. Various factors pertaining to particular individuals (eg. their driving record) might justify a different course of action.
(i) P1 Licence suspension
In recent times, the Government (with good cause) has created extremely harsh penalties that govern P1 licence holders. As a P1 licence holder, a minor speeding offence (ie. 10kph or less over the speed limit) will result in such person receiving 4 demerit points and also a suspension of licence for 3 months. If such driver is guilty of committing a speeding offence of over 30 or 45kph, then such driver can expect a suspension of 3 months for the speeding offence itself (having received 4, 5 or 6 demerit points) and an additional 3 months or 6 months for the respective mandatory suspension period. From experience, it seems that the RTA doesn’t understand the principle of serving a suspension concurrently.
Should such misfortune befall you, and you find yourself being suspended for 3, 6 or 9 months then in such circumstances you can lodge an appeal to the court to seek a reduction in the suspension period. However, you will need to provide sound grounds for such appeal.
(ii) Over 30 & 45 kph Suspensions
Generally, when drivers are stopped by police for speeding (without more) they will receive an infringement notice for the offence. This will require that they either pay the fine or fill out the reverse side of the ticket and take it to court. In offences involving speeds of over 45 kph, police have the discretion to suspend the person on the spot. In such cases they might not issue a ticket but rather a court attendance notice which requires the driver to attend court to answer the charge.
If a person who receives an infringement notice decides to take the matter to court, or if the Police issue a court attendance notice, then, when the matter comes before the court, if the person is convicted of the offence, then there is a mandatory minimum disqualification period of 6 months. In the case of a speed of over 30 kph the court, on conviction must disqualify for a minimum period of 3 months. In such circumstances, the offender also receives the allocated demerit points. If the offender is able to convince the court that no conviction should be entered against him/her, and the court grants a s.10 dismissal, then the court will neither fine nor disqualify such person. Thankfully owing to a change in the legislation, which commenced 31 January, 2011 – no demerit points are accrued with a s.10 dismissal.
Alternatively, if a person issued with an infringement notice decides to pay the fine, then a short time later, such person will receive a letter from the RTA advising that from a particular date, he/she will have their licence suspended for a period of 3 or 6 months (depending upon the offence), and as explained above, a P 1 licence holder will be given an additional period for the demerit points as will anyone else who accrues the limit of demerit points.
Can I Appeal?
Any licence holder can appeal licence suspension – NSW by the RMS for an over 30 or 45 kph speeding offence. There must be grounds for such appeal, and those grounds must be seen by the court to be valid and not superficial or hollow. Generally a loss of job or medical issues will found a valid argument for either a successful appeal or a reduction in the suspension period. Remember, the court in an appeal application can reduce the suspension period, which is not available if the offence is taken to court at first instance.
2. Demerit Point Suspension
The number of points resulting in a licence suspension varies for different licence types:
– Full unrestricted licence holders – 13 demerit points in a three-year period. (14 points for professional drivers).
– Full unrestricted professional drivers licence holders – 14 demerit points in a three-year period.
– Provisional P2 licence – 7 points.
– Provisional P1 licence – 4 points.
– Unrestricted licence with a good behaviour period – 2 points within the term of the good behaviour period.
(i) Full unrestricted licence holders
Full licence holders have no licence appeals rights owing to the accumulation of 13 or more demerit points. However, they have the option of taking up a good behaviour licence for a period of 12 months.
If a full licence holder accumulates between 13 – 15 points, then the suspension period is 3 months. If the accumulated demerit points are between 16 – 19 points then the suspension period is 4 months. If 20 points or more are accumulated, then the suspension period is 5 months.
It must be remembered however, that if you take up a good behaviour licence and commit an offence which carries 2 or more points, then you are suspended for double the initial suspension period. There is no appeal to a court in such circumstance.
The effect of this can have serious effects upon those who need a licence for a living, particularly with the proliferation of speed cameras. There are not many offences which carry only 2 demerit points. On 31 January, 2011 however, the Government brought into operation a number of changes to demerit points for speeding offences. The previous regime of speed banding was changed to 10kph and less over the speed limit – 1 point; 11 – 20 kph over the speed limit – 3 points; 21 – 30 kph over the speed limit – 4 points; over 30 kph above the speed limit – 5 points and over 45 kph above the speed limit – 6 points.
(ii) P 1 and P 2 licence holders
P plate licence holders are in a different position to those holding full unrestricted licences insofar as their appeal rights are concerned.
As observed above, a P 1 licence holder will be suspended if he incurs 4 demerit points. Seven points for a P 2 licence holder.
Both licence holders can appeal against a suspension of licence should such situation arise, however such appeal must have merit.
Any opinions expressed by the writer in this article are not provided as legal advice but simply an opinion in respect of the law as it stands as at this date. It is provided as assistance only and should not be interpreted as being legal advice for any particular case. Readers should contact their own lawyer and obtain individual legal advice for their particular case.
Appeal Licence Suspension – NSW – Get in touch now!
Call Peter Proctor of Proctor & Associates for an appointment or just some helpful advice on any Licence Appeals matters on 02 9687 3777 or email him directly at peter@proctorlaw.com.au
Licence Suspension FAQs
How do I appeal a P1 suspension?
You have to lodge an application to the Local Court appealing against the suspension of your licence. An application can be lodged on-line and must be lodged before the suspension commences.
Can I appeal my driving suspension?
Yes you can lodge an appeal with the Local Court to appeal against a suspension of your driver licence.
How do I appeal my licence suspension NSW?
Once you receive a notification of suspension from RMS you have a limited time to file an appeal against the suspension. You can go to your nearest court house and lodge an appeal or do it online.
Can I appeal to get my driver licence back?
If you have been subject to a lengthy disqualification period and want to get your licence back, it is possible, subject to certain limitations and requirements. It is advisable to utilise the services of a lawyer.
What’s the difference between disqualification and suspension?
A disqualification can only be imposed by a court and disqualifies “the person” from driving a motor vehicle for a set period. A suspension is generally imposed by police or the RMS the effect of which means that the licence that the person held, is suspended and the person cannot drive a motor vehicle for the period of suspension or, if it requires a person to appear in court, until the court case is resolved.
How many points do I get back after suspension?
Demerit points have different thresholds depending upon what class of licence you hold. For example, Provisional P1 licence holders have a threshold of 4 demerit points. If that threshold is reached, the driver will be notified of a licence suspension for a period. Once the period of suspension is served, those demerit points that activated the suspension are removed.
Do demerit points reset after suspension NSW?
Following a period of suspension owing to accumulation of demerit points for a Set number of offences, once that suspension period has been served, then those demerit points are removed from your record. Any points for offences which haven’t been included in those for which you were suspended, such points will remain on your record.
