The general advice of a good lawyer before the decision of RTA v Papadopoulos  NSWSC 33 (Papadopoulos) and the subsequent amendments to the Road Transport (General) Act 2005 (the Act) was that a person who had been declared a Habitual Traffic Offender (HTO) should wait until they near the end of any court imposed disqualification (CID) periods before making an application to quash/reduce disqualification resulting from a Habitual Offender Declaration (Declaration), if the application had not been made/or was not successful at the time of the Declaration being made.
This advice is generally supported by most Magistrates who upon hearing an application to quash a declaration or reduce a period of disqualification from such a declaration may suggest that the application is ‘premature’ if there are still unserved periods of CID.
This advice could now backfire if one does not appreciate the significance of the decision in Papadopoulos and the consequent amendments to the Act.
Who would qualify as a Habitual Traffic Offender?
The Act provides that a person is to be declared a HTO if they are convicted of three relevant offences within a 5 year period.
A HTO Declaration is triggered even if a person has been dealt with for 3 relevant offences within a five year period and an order under section 10 Crimes (Sentencing Procedure) Act (or formerly section 556A Justices Act, now repealed) has been made dismissing the charge or conditionally discharging the person (see below).
What is a Relevant Offence?
The Act provides a list of relevant offences which include:
- Major offences
A major offence is defined as a crime or offence referred to in the definition of a convicted person. A convicted person is defined as a person convicted of any of the following offences (or convicted of aiding, abetting, counselling, or procuring the commission of or being an accessory before the fact to any of the following offences):
- Murder, manslaughter, wounding or grievous bodily harm (GBH) with intent, reckless GBH or wounding, furious driving causing injury, unlawful or negligent act or omission causing GBH (whereby the death or injury arose out of the persons use of a motor vehicle);
- Predatory driving, police pursuits, failing to stop and assist after vehicle impact causing death or GBH;
- Driving furiously, recklessly or at a speed or in a manner dangerous to the public;
- Negligent driving occasioning death or GBH;
- Menacing driving;
- Novice range PCA, Special range PCA, Low, Middle or High range PCA (but only when the person drives a motor vehicle or occupies the drivers seat of a motor vehicle and attempts to put the motor vehicle in motion, and therefore does not apply to a person who is supervising a learner licence holder), refuse or fail to submit to breath analysis, wilfully altering alcohol concentration after request for breath test or breath analysis;
- Hinder or obstruct a health professional taking a blood sample;
- Drive under the influence of alcohol or drugs (but only when the person drives a motor vehicle or occupies the drivers seat of a motor vehicle and attempts to put the motor vehicle in motion, and therefore does not apply to a person who is supervising a learner licence holder);
- Refuse or fail to submit to the taking of a blood or urine sample or wilfully doing anything to alter drug presence in the blood or urine;
- Failing to stop and assist after accident causing injury or death;
- Drive with illicit drug present in oral flood, blood or urine;
- Fail or refuse to provide oral fluid sample;
- Fail or refuse to submit to the taking of a blood sample in accordance with the directions following arrest after a failed or refused oral fluid sample;
- Wilfully introducing or altering presence of prescribed illicit drugs in persons oral fluid or blood; and
- Failing or refusing to submit to a blood or urine sample following a fatal accident
· Exceeding a speed limit by more that 45km/h
· Driving never been licensed (2nd or subsequent offence)
· Drive whilst disqualified, suspended (but not fine default suspended) or cancelled
· Any of the above offences whereby the person has not been convicted but the offence has been proven or the person has been found guilty (dealt with under section 10 or section 556A)
· Offence by a person who has committed the same kind of offence referred to above in another State or Territory
· A relevant offence within the meaning of section 10EA of the Traffic Act as in force immediately before its repeal (which would therefore extend relevant offences to include driving never been licensed 1st offence)
Who or when is a person declared a Habitual Traffic Offender:
A person who has three relevant offences on their record within 5 years is automatically declared a HTO at the time of being convicted or found guilty of the third relevant offence. A person may be made aware of the declaration by the Court or the RTA who will send a notice informing the person of the declaration being made against them. The notice sent by the RTA does not inform a person of their right to apply to the court to have the declaration quashed or period of disqualification reduced.
Effect of a Habitual Traffic Offender Declaration:
Without specific orders of the Court a person’s licence will be disqualified for an additional 5 years on top of any CID periods and any other penalty. The Court may order a longer period (even disqualification for life) or a short period (not less than 2 years) or at the time of conviction quash the declaration.
In effect therefore a court is restricted to reducing the period to two years and if it though fit could not reduce it below 2 years unless it quashed the declaration entirely. There seems to be no justification in the legislation or the second reading speeches for this restriction placed on the court to impose for instance a 6 month disqualification if it saw fit.
What does the court have to be satisfied of to quash or reduce the period of disqualification?
In order for a court to quash or reduce a period of disqualification resulting from a HTO Declaration, the Court must determine that the disqualification imposed by the declaration is a disproportionate and unjust consequence having regard to the total driving record of the person and the special circumstances of the case.
A court must state its reasons for quashing a declaration or reducing the period of disqualification. ‘There must be a rationale basis for intervening to quash a declaration’ (P v Te Pairi NSWLC 17 at ).
There are many persons who are disqualified now for years on end, with no real foreseeable end and no real drive to comply with such lengthy periods of disqualification. Therefore as Chief Magistrate G L Henson stated in the decision of P v Te Pairi  NSWLC 17 at :
A court should have in its mind the need to promote an environment in which the prospect of rehabilitation is real rather than largely unobtainable
When can a person make an application to quash the declaration or reduce the period of disqualification?
A person can make an application to the court at the time of the conviction i.e. the time of being declared a HTO, or at a later time.
When should a person make an application?
Herein the problem lies.This is generally a tactical decision:
a)Should the person ask the court at the time of the conviction which will result in the declaration being made to quash the declaration or reduce the period of disqualification?
If there is any hope that the application to quash may be successful at the time of conviction (remember for the purpose of this Division of the Act a conviction will include a dismissal or discharge under section 10) then this will always be in a person’s best interest.
However if the court is likely to refuse such an application or agree to only reducing the period then perhaps it is better to wait and make an application at some later time.
Once a court agrees to deal with an application and only reduces the disqualification a person can presumably still make an application to quash the declaration at a later time. There seems to be no bar on this approach in the legislation. Furthermore, there seems to be nothing in the Division preventing a person making a further application to the Court at some later stage after a refused application. However, a person is precluded from appealing against the declaration or disqualification being imposed in the first instance.
b) Should the person wait until they have served out some or all of the CID before they make such an application?
A person should wait if they have only court imposed periods of disqualification (CID) for offences chronologically due to be served before a HTO period of disqualification (HTOD) is to be served before they make an application. However, if they have future CIDS after any periods of HTOD’s to serve they should make an application immediately to a court. The more time that lapses before such an application is made the more time a person will serve off the road.
The Act provides that
If while an existing disqualification under this Division is in force, the person is disqualified by a court automatically under another provision of this or any other Act, that further disqualification does not commence until all existing disqualifications under this Division have been completed.
This in effect means that if a person is serving out or due to serve out a period of disqualification which resulted from a HTO Declaration and they are disqualified for any other reason that new period of disqualification will need to commence at the expiration of the HTOD. Without any specific order of a court any orphan periods of disqualification which may result from disqualification periods being annulled, quashed, set aside or varied will automatically cascade back in time to effectively commence at the expiration of any previous period of disqualification.
Following the decision of Papadopoulos and the amendments to the legislation, the law at present provides that when a declaration is quashed this does not invalidate any period of that declaration that had already been served. Therefore any successful application to quash would only have effect from the date of making such an application to the court and any period of future or orphan disqualification to be served will cascade in time to the date of the successful application if it is already being served. So if there are future periods to be served after a HTOD and a person has the HTO Declaration quashed in one years time then any future disqualification periods will commence in one years time.
The problem of course is most prevalent for persons who had been given certain advice before the amendments to the Act and will now be affected by delaying the making of such an application.
c) Should the person never make an application?
In some, but limited cases making an application might trigger correction to a flawed record whereby periods of disqualification which are in fact running concurrently or partially concurrently to existing HTO Declaration periods will be without specific order of the court pr by way of a Sentencing Error hearing altered to commence at a different date which will in effect see a person off the road for a long period than otherwise if they had not made a such an application. It is therefore imperative to know the precise effect of quashing a HTO Declaration before rushing in to making one.