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Are You a Repeat Offender? (ACT)

When a person is charged with driving offences in the ACT, they will generally be categorised as a repeat offender if they have been found guilty of a related offence in the ACT at any time prior to being charged with the new offence. This is different to in New South Wales, where a person is generally charged as a repeat offender only if they have committed a related offence in the five years prior to the new offence. This article deals with the criteria for persons being sentenced for traffic offences to be treated as repeat offenders in the ACT.

Penalties for repeat offenders

Repeat offenders face more severe penalties than first offenders. For example, if you are charged with driving with a prescribed concentration of alcohol in your breath (level two) as a first offender you are liable, on conviction, to a maximum fine of $800 (5 penalty units) and an automatic disqualification period of six months, reducible to a minimum disqualification period of two months.

However, as a repeat offender, the maximum fine doubles to $1600 (10 penalty units). The automatic disqualification period also increases to 12 months, reducible to a minimum period of three months.

Who is a repeat offender?

A key question is whether someone is a repeat offender if they have committed two offences, but the first has not yet been finalised in court. For example, let’s say that Mr Joe Bloggs commits a drink drive offence on 1 January 2021 and his matter is first listed in court on 1 April 2021. However, in February 2021, he commits another drink offence. This matter is also listed at court on 1 April 2021. Assuming that Mr Bloggs is entering pleas of guilty to both offences, is he considered a repeat offender?

The answer is yes. But that is because for certain offences, including drink drive offences, where a person is found guilty or convicted of the first-in-time offence on the same day that they are found guilty or convicted of the second-in-time offence, they are considered a repeat offender.

The relevant section is 4F(2) of the Road Transport (Alcohol and Drugs) Act 1977. A repeat offender is defined as:

  • a person who  has  been  convicted  or  found  guilty  of  a  relevant offence committed at any time before the disqualifying offence was committed (whether or not the person had been convicted or found guilty of the  relevant  offence  when  the  person committed the disqualifying offence); or 
  • a person who is  convicted  or  found  guilty  of  1  or  more  relevant offences concurrently  with  being  convicted  or  found  guilty  of the disqualifying offence, and 1 or more of the relevant offences were committed before the disqualifying offence [emphasis added]; or

A “disqualifying offence” includes:

  • section 19  (Prescribed  concentration  of  alcohol  in  blood  or breath);
  • section 20  (Prescribed  drug  in  oral  fluid  or  blood––driver  or driver trainer);
  • section 22 (Refusing to provide breath sample);
  • section 22A (Refusing to provide oral fluid sample);
  • section 22C (Refusing to undergo screening test);
  • section 23 (Refusing blood test etc);
  • section 24 (Driving under the influence of intoxicating liquor or a drug);
  • another provision of this Act prescribed by regulation.

A “relevant offence” means a disqualifying offence, a corresponding offence, or an offence of culpable driving in contravention of section 29 of the Crimes Act 1900. A corresponding offence is an offence against a law of another jurisdiction that corresponds to a disqualifying offence in the ACT.

If a person is found guilty of two or more disqualifying offences, even if these matters are dealt with on the same day at court, they will be considered a repeat offender in the ACT.

Driving while disqualified repeat offenders

Mot all ACT statutes define repeat offender so broadly. The definition of repeat offender contained at section 32(9) of the Road Transport (Driver Licensing) Act 1999 applies to those charged with the offence of driving while subject to a court-ordered disqualification and states:

(9) In this section

  • a person who is convicted of an offence against this section (the current offence) is a repeat offender in relation to the current offence if the person has been convicted, or found guilty, of an offence against   this   section  within   5   years   before   being convicted of the current offence; and
  • a person who is convicted of an offence against this section is a first offender in relation to the offence if the person is not a repeat offender in relation to the offence.

Under this definition, a person who commits two offences of drive while disqualified that are finalised in court on the same day will not be categorised as a repeat offender.

In the 2012 Supreme Court decision of Scheele v Watson, Justice Refshauge refers to the common law principle of statutory construction (also known as Lord Coke’s canon of statutory construction) and states at [57]:

The essence of the principle is that a law which imposes a higher penalty on repeat offenders should be interpreted as applying only to offences committed after being convicted the first time [emphasis added].”

He goes on to say why this is so, also at [57]:

The theory is that the appropriate lesson will have been learnt on the first or subsequent occasion upon which the offender is dealt with by the court, and he or she, having suffered the punishment, will then be deterred from offending in like manner again. The objective of deterrence, based upon escalating periods of actual imprisonment, would be open to grave doubt, if when before a court for the first time, an offender would be liable to incarceration for a period in excess of that applicable for a first finding of guilt, simply because he or she then stood charged with more than one property offence which happened to be joined on separate informations. The justification for increasing the term of imprisonment on the second finding of guilt would be missing as the offender would not have been previously subjected to punishment aimed at deterrence. There would be no opportunity for the multiple offender, not previously charged, to become aware of the certainty of the severity of punishment for the proscribed criminal behaviour.”

In short, the offender should be afforded the opportunity to appear at court for their offences, be sentenced and then released into the community to see if they have learnt their lesson. All of that should happen before they are considered a ‘repeat offender’, which would require the court to consider a more severe penalty for the second-in-time offence.

It appears that parliament has decided to legislate out of this particular interpretation when it comes to drivers with alcohol or drugs in their system (and other similar offences, such as refusing to provide a breath sample to be tested for alcohol).

To determine if you are repeat offender, it is advisable to read the relevant sections of the legislation carefully and seek legal advice.

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

Rachel Le Bransky - Solicitor - Canberra

This article was written by Rachel Le Bransky - Solicitor - Canberra

Rachel Le Bransky graduated with a Juris Doctor from the University of Sydney and a Bachelor of Arts from the University of Melbourne (Dean’s Honours List). She holds a Graduate Diploma in Legal Practice from the College of Law and was admitted to practice in the Supreme Court of New South Wales in 2017. Rachel practices in criminal and traffic...

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