By Paul Gregoire and Ugur Nedim
A 2013 NSW parliamentary report into the laws then applying to unauthorised driving found that cases were clogging up the NSW Local Court, penalties were disproportionately steep with no discretion to curb their severity, and their impact was causing havoc within the community.
In response, the Berejiklian government passed the Road Transport Amendment (Driver Licence Disqualification) Bill 2017, which altered the unauthorised driving offences in the Road Transport Act 2013 (NSW) (the Act), by providing flexibility in disqualifications and reductions in prison terms.
“Currently, repeat unauthorised driving penalties in NSW are similar to the state’s maximum penalties for very serious offences, such as high range drink-driving,” said NSW attorney general Mark Speakman on introducing the amendment bill on 12 September 2017.
The state’s chief lawmaker further outlined that the 1998-imposed laws operating prior to the amendments increased reoffending due to their severity, overly impacted regional and rural areas, and in terms of those sent to prison for these crimes, First Nations people were overrepresented.
Released last week, a Bureau of Crime Statistics and Research (BOCSAR) report finds that the 2017 driver licence reforms have been successful in establishing a regime that’s not overly punitive in relation to these lesser offences, although it hasn’t reduced instances of reoffending.
The assessed amendments
The BOCSAR report assessed the impact of the penalty changes made to the offences of driving whilst disqualified, cancelled or suspended, driving whilst cancelled or suspended due to fine default and driving whilst never licensed.
The reforms abolished mandatory penalties for unauthorised driving offences, which had provided fixed term punishments with no variabilities. These were replaced with automatic disqualifications, which are less severe and allow courts discretion to vary the periods applying within set parameters.
Section 54(1) of the Act contains the offence of driving whilst disqualified, suspended or cancelled.
Changes to this section saw a mandatory disqualification period of 12 months, dropped to an automatic period of 6 months, with a minimum of no less than 3 available. For second or subsequent offences, a 2 mandatory years dropped to an automatic 1 year, with no less than 6 months applying.
And a pre-reform maximum penalty of 12 months imprisonment was dropped to 6 months for a first offence, while repeat offences now carry a maximum of 12 months, which dropped down from 2 years prison time.
Section 54(5) of the Act contains the crime of driving whilst cancelled or suspended due to fine default.
These changes saw first offence disqualification remain at 3 months, but with the option to drop the length down to 1 month, whilst for repeat offenders, a mandatory 2 years dropped to an automatic 12 months with the option of this being reduced to 3 months.
In terms of prison time, a possible maximum 18 months was dropped to no custodial penalty applying to first time offenders, whilst for subsequent offences, 2 years dropped to a possible 6 months inside.
The offence of driving whilst never licensed is contained in section 53 of the Act.
For a first time offence, no disqualification period applied before or after the reforms, but for second or subsequent breaches, a mandatory 3 years driving disqualification dropped to 12 months, with the option of at least 3 months.
No prison term has ever applied for a first time offence of driving whilst never licenced, but a maximum of 18 months inside that used to apply for a second or subsequent offence has now been reduced to 6 months imprisonment.
The report findings
The BOCSAR study considered court data relating to cases involving driving whilst disqualified or without a licence over the 5 years to April 2020. And these were compared to cases involving driving whist exceeding the legal limit on alcohol. Over 118,000 finalised cases were considered.
“We found that the reforms significantly reduced the severity of penalties imposed for unauthorised driving offences,” reads the report.
The BOCSAR findings outline that the average period of licence disqualification dropped by 9.6 months – or by 53 percent – whilst in terms of the average prison sentence, these fell by 1.7 months, which corresponded to a 28 percent decrease.
The likelihood of receiving a sentence dropped by 1.7 percentage points, however there was no marked drop in disqualifications.
The impact of the reforms has been greater for First Nations individuals. The probability of receiving a prison sentence for unauthorised driving dropped by 44 percent for Aboriginal people. And while they continued to be sent to gaol more often than the non-Indigenous, this disparity has narrowed.
However, in terms of the impact the reforms have had on the court system, BOCSAR found no reduction in finalised cases for any six month period, which was consistent with the overall report’s finding that reoffending rates have not declined significantly for unauthorised driving post-reforms.
“Our reoffending results are not consistent with deterrence theory,” writes report author Ilya Klauzner. “Recall that classical deterrence theory posits that individuals are less likely to commit crimes that have severe punishments and a high risk of apprehension.”
Despite the drop in penalties there was no huge spike in repeat unauthorised driving offenders, and nor was there a rush on the courts with these types of cases.
However, the proposition that a reduction in disqualification periods would reduce reoffending did not play out either. And this was put down to two possible explanations.
The first being that prior to the reforms repeat offending occurred soon after a disqualification period was imposed and, therefore, the reduced periods simply permitted this general trend to continue.
The other cited explanation was that past studies have found that unauthorised drivers don’t appear to respond to severity in penalties, as the main reason for drivers breaking these laws “is the low probability of detection and the substantial social and economic benefits they derive from driving”.
And following on from the finding that in many cases penalties have halved for unauthorised driving, a key takeaway is that overly burdensome punishments can be reduced without it necessitating an uptick in reoffending rates or court volumes.
The report further shows that changes to sanctions relating to unauthorised driving don’t result in changes to offending behaviour. So, it suggests that other measures could be taken to reduce these continuing crimes, such as increased high-visibility policing or the imposition of vehicle sanctions.
Of particular note, the report author added, was “the reduced disparity between Aboriginal and non-Aboriginal offenders in rates of incarceration which resulted from the reforms.”
“Reducing prison penalties for offences where there are a large number of Aboriginal offenders could be an important step in any attempt to address the significant overrepresentation of Aboriginal people in the criminal justice system,” wrote Klauzner in his concluding remarks.