JUSTICES OF THE PEACE TRAINING PROGRAMME Section 49 ROAD TRAFFIC ACT STEPHEN WILSON MAGISTRATENORTHAM 19 TH June 2009

s.49 Road Traffic Act Purpose: To create various offences and penalties for driving a motor vehicle on a road without a current and valid authority to drive a motor vehicle.

s. 49 Road Traffic Act Enforces 3 distinct groups of offences 1. s.49(1)(a)or(b) (Never held or no valid DL) 2. s.49(3)(a) to (c) (Refused, Suspended or Cancelled) 3. s.49(3)(d) (Fines Suspension)

s.49 Road Traffic Act Authorisation to Drive The legislative regime to become a person authorised to drive a motor vehicle is established by Part IV of the RTA (s. 41A to 48) and the Road Traffic (Authorisation to Drive) Regulations.

s.49 Road Traffic Act s. 49(1)(a)&(b) Creates 2 distinct offences: 1. Driving a motor vehicle on a road when not authorised by Part IVA RTA, or 2. Employing or permitting another person to drive a motor vehicle on a road when not authorised under Part IVA RTA. s 49(1)(a) An offence under s 49(1)(a) can occur when a person drives a motor vehicle on a road when they have either never held a drivers licence or have held a drivers licence but it has expired. s 49(1)(b) An offence under s 49(1)(b) can occur when a person employs or permits another person to drive a motor vehicle on a road when that person is not authorised. If the offences occur in those circumstances and not in circumstances provided under s 49(3) of RTA the maximum fine is: 1 st Offence $ Subsequent Offence $ Note these penalties are maximum so the court has discretion to impose a fine of any amount up to the maximum. If the person convicted under s. 49(1)(a) RTA has never held a drivers licence and can only hold a drivers licence on probation or a person holds a probationary drivers licence upon conviction the provisions of s.51(5)&(5a) RTA applies and the Court on conviction must suspend the persons ability to obtain or hold a drivers licence for a minimum of 3 months.

s.49 Road Traffic Act Aggravation of Penalty for offence against s. 49(1)(a) RTA The law recognises a person who drives a motor vehicle whilst not authorised to do so because they have been refused a drivers licence by a licensing authority or their drivers licence has been taken from them by a court or the licensing authority should be subject to higher penalties. Accordingly, s. 49(3) RTA provides for aggravated penalties when the driving of a motor vehicle occurs in the following circumstances: s.49(3)(a) After application for a drivers licence has been refused,or s.49(3)(b) Never held an Australian drivers licence and is disqualified or, has held but has ceased to hold (cancelled) a drivers license except by voluntary surrender or, Fine Suspension, or s.49(3)(c) Drivers Licence has been suspended (including Court Suspension and demerit points) but excludes Fine Suspension. s.49(3)(c) Drivers Licence has been suspended (including Court Suspension and demerit points) but excludes Fine Suspension.

s.49 Road Traffic Act Aggravated Penalties s. 49(3)(a) to (c) A conviction for driving when not authorised in any of the circumstances provided by s.49(3)(a) to (c) RTA provides for the following penalties: First Offence: Fine of not less than $400 and not more than $2000, and, imprisonment for not more than 12 months. Subsequent Offence: Fine not less than $1000 or more than $4000, and, imprisonment for not more than 18 months. Disqualification of Drivers Licence: Upon conviction for driving without authority under circumstances provided by s. 49(3)(a) to (c) the Court shall impose disqualification from holding or obtaining a drivers licence for not less than 9 months to be served cumulatively upon any other term of disqualification being served or may be subject. (see s. 49(8) RTA.) (see s. 49(8) RTA.)

s.49 Road Traffic Act Driving whilst subject to Penalty Enforcement Laws s. 49(3)(d) RTA The RTA takes a different view of driving without authority whilst subject to a Penalty Enforcement Law. ( i.e.: Fines Enforcement or disqualified by a corresponding prescribed law of another jurisdiction) In Burns v Melia [2005] WASCA 57 His Honour Justice Simmonds held a separate penalty regime was established for the offence of driving whilst subject to a drivers licence suspension for non payment of fines. Accordingly, offences of driving without authority under fines suspension, s.49(3)(d), are to be considered separately for the purposes of sentence to those offence under s. 49(3)(a) to (c) RTA. Penalty: Fine not less than $200 or more than $1500, and imprisonment of not more than 12 mths. Disqualification: Court may disqualify from holding or obtaining a driver licence for not more than 3 yrs. Remember: If drivers licence disqualified under s. 49(3)(d) RTA it is not to take effect for 7 days from date of order.

s. 49 Road Traffic Act Establishing what is a Prior Relevant Offences under s. 49(3) RTA for the purposes of calculating Sentencing Offences up to 20 years ago can be taken into account. Offences up to 20 years ago can be taken into account. Prior offences under old legislation for driving under court imposed or demerit point suspension can be taken into account for purposes of sentencing under s. 49(3) RTA. Prior offences under old legislation for driving under court imposed or demerit point suspension can be taken into account for purposes of sentencing under s. 49(3) RTA. Children Court convictions not more than 2 years old can be taken into account. Children Court convictions not more than 2 years old can be taken into account. Scrutinize the prior record and identify past prior convictions for the same offences. Scrutinize the prior record and identify past prior convictions for the same offences. Driving under Fines Suspension under s. 49(3)(d) RTA is not to be regarded as a prior offence of driving under court imposed or demerit point suspension and vice versa. Driving under Fines Suspension under s. 49(3)(d) RTA is not to be regarded as a prior offence of driving under court imposed or demerit point suspension and vice versa. Driving without a valid drivers licence s. 49(1)(a) RTA without any of the circumstances in s. 49(3) RTA is not to be regarded as a prior offence of driving under court imposed or demerit point suspension. Driving without a valid drivers licence s. 49(1)(a) RTA without any of the circumstances in s. 49(3) RTA is not to be regarded as a prior offence of driving under court imposed or demerit point suspension. see s. 49(7) and s. 105 RTA and s. 189 Young Offenders Act

s. 49 Road Traffic Act Section 51(5) & (5a) RTA and its application to s. 49 (1)(a) RTA The provisions of s. 51(5) RTA provides that a court sentencing a person for an offence under s. 49(1)(a) RTA and the person has never held a drivers licence and can only hold a drivers license on probation the court must disqualify that person from driving for a period of not less than 3 months.

s.49 Road Traffic Act Sentencing options other than fines and other issues for offences against s.49(3) RTA S.106(4) RTA provides a court sentencing a person for an offence against S.106(4) RTA provides a court sentencing a person for an offence against s. 49(3) RTA can instead of imposing a fine impose a CBO or an ISO with at least community service requirement. Person should be present if considering placing a person on a CBO or ISO. Person should be present if considering placing a person on a CBO or ISO. If placing a person on a CBO or an ISO must still impose the minimum disqualification from holding or obtaining a drivers licence. If placing a person on a CBO or an ISO must still impose the minimum disqualification from holding or obtaining a drivers licence. Listen closely to the facts as read to you by the Prosecutor and identify if the Accused has been charged with the correct offence under s.49. Listen closely to the facts as read to you by the Prosecutor and identify if the Accused has been charged with the correct offence under s.49. Check the criminal record and ascertain the Accused has been charged with the correct offence. Check the criminal record and ascertain the Accused has been charged with the correct offence. If the Accused has endorsed a plea of guilty, is not present and you discover the offence is incorrect do not accept the plea and adjourn the matter for the issue of a summons to the Accused so an amendment can be made to the charge and a plea then taken. If the Accused has endorsed a plea of guilty, is not present and you discover the offence is incorrect do not accept the plea and adjourn the matter for the issue of a summons to the Accused so an amendment can be made to the charge and a plea then taken.