Ainsley Law

Home Our Services Unrestricted Licence Holder Demerit Point Offences

13 Demerit Points

As a unrestricted licence holder in NSW you are allowed to accrue up to 12 demerit points in a 3 year period. If you accrue 13 points then you will be sent a suspension notice.

Demerit points are applied from the date of the offence (i.e. they count back the 3 years from the most recent offence date). However, it is the practice of Transport for NSW to only consider any demerit point offences on your record from within the last 3 years and 4 months.

Good Behaviour Licence

Unrestricted licence holders will be offered the choice to go onto a ‘good behaviour licence’ if they exceed their demerit point limit. This is where you have 1 demerit point for 12 months. If you successfully complete the 12 months then you get all your demerit points back and do not serve a suspension. However, if you get 2 or more demerit points in that 12 months your licence will be suspended for double the original suspension period.

Good behaviour licences are offered automatically to all unrestricted licence holders who exceed their demerit point limit. The instructions for electing the good behaviour licence are included in the suspension letter.

Going To Court

If you do not want to choose a good behaviour licence, then the only way to avoid a suspension is to avoid the demerit points from being added to your record.

The main ways to avoid the demerit points from a new offence are to elect to take it to court and:

  1. Through negotiations the prosecutors decide to withdraw the charge,
  2. After a hearing you are found not guilty of the offence, or
  3. The magistrate finds you guilty but dismisses the matter without conviction.

Not Guilty

If you think you are not guilty of an offence and would like personalised advice, please call us on 0416 224 601 to arrange a paid consultation for a personalised assessment of your case.

Guilty

If you are guilty of the offence but are concerned about accruing the demerit points, then you can take the matter to court, plead guilty and seek that the matter be dismissed without conviction. This is sometimes called a ‘section 10’ or ‘non-conviction’. If the court agrees not to record the conviction then you won’t receive the demerit points.

The decision not to convict an offender is a “discretionary one” – so it is up to the magistrate hearing the matter to decide whether they will extend leniency in your case.

When making their decision, the Magistrate will consider the circumstances of the offence (whether there is a good story or explanation behind what happened), your traffic record (which may not assist you if you are about to run out of demerit points) and anything else that is relevant- like your completion of the traffic offender’s program. Your need for a licence MAY be considered here, but as the magistrate isn’t directly deciding whether or not to take you licence off you and because the option of the good behaviour licence will be available to you if you are convicted- this factor does not usually weigh heavily.

Generally, our advice is that if you do not have a good explanation for the offence and your record isn’t good, then your chances of getting a non-conviction are usually limited.

You must also consider the risks- if you are convicted, then:

  1. The matter can appear on criminal record checks
  2. The Court could increase your fine
  3. The demerit points will be put on your record and, if they put you over your limit, Transport for NSW will send you a notice of suspension
  4. The magistrate can impose an additional licence disqualification period (although this is very rare, it is worth being aware of the risk if your record is particularly bad)
  5. There will be court costs of approximately $180 (as at July 2023)

If you have read this and would like personalised advice, please call us on 0416 224 601 for a paid consultation.

Mobile Phone Offences

We receive many calls from drivers who have been charged with mobile phone offences. Generally, drivers are concerned either because they don’t understand the mobile phone rules and so aren’t sure if what they were doing with their phone was illegal, or they are concerned about accruing either 5 or 10 demerit points (if it is double demerits).

What Counts As Using A Mobile Phone?

What you can’t do:

  • Hold or touch your phone (even if you’re not using any functions)
  • Look at anything displayed on the screen
  • Turn the phone on or off
  • Enter information into the phone or send information from the phone
  • Operate any function of the phone (e.g. make calls, send messages, use an app)

What you can do:

  • Take calls via hands free (making sure you don’t touch the phone)
  • if your phone is mounted properly in a holder:
    • Take calls
    • Play audio- like music, podcasts and audiobooks
    • Operate sat nav
    • Use dispatch systems- like Uber
  • Pass the phone to a passenger
  • Pay at the McDonald’s (or other) drive thru

What P plate drivers can do:

The only thing provisional licence holders can do with a phone while the car is not parked is use it to pay in the drive thru. All other uses of a phone or its functions is illegal. This includes using systems like Apple Car Play, which display functions of the phone through a car’s entertainment system.

If you have been caught doing something with your phone that seems objectively less serious than texting or calling while driving, this could form part of an argument for leniency in court. That said, it is not a silver bullet- as Courts see many drivers claiming that they did not understand the rules, and so feel the need to send the message that simply not knowing your obligations does not get you out of consequences.

If you would like personalised advice, please call us on 0416 224 601 for a paid consultation.

Demerit Points For Mobile Phone Offences

The demerit points for mobile phone offences add up quickly- especially if you have committed multiple, or have been caught on a double demerit point weekend. While sometimes this can form part of an argument for leniency in court, it is a double-edged sword, as the points are high because Parliament recognises the dangers of mobile phone use while driving, especially on holiday weekends when there are more people on the road.

Taking Your Mobile Phone Offence To Court

The main way to avoid demerit points for a mobile phone offence is to take the case to court.

Once your case is at court you will have the option to either plead ‘not guilty’ (i.e. I did not commit the offence) or ‘guilty’ and seek leniency.

If you are found not guilty then the points will not be applied to your record.

If you are found or plead guilty, the magistrate will then decide the sentence to impose. One option is a ‘non-conviction’ (which you might also hear called a ‘section 10’ or ‘conditional release order without conviction’). This is where they find you guilty but a conviction is not recorded.

If you receive a ‘non-conviction’ then the points won’t be applied to your record.

There are some important factors to consider:

  1. There is no guarantee that you will be found ‘not-guilty’ or receive a ‘non-conviction’.
  2. They are “all or nothing” outcomes. Either you get the points and a fine or you do not.
    It is not possible for the Court to:

    • a) reduce the number of demerit points for an offence
    • b) give you a fine but no points
    • c) reduce a demerit point suspension period on a court election.
  3. If you are convicted, and this is a more common outcome, than a non-conviction, it can make your situation worse:
    • a) The matter can appear on criminal record checks
    • b) The Court could increase your fine
    • c) The demerit points will be put on your record and, if they put you over your limit, Transport for NSW will send you a notice of suspension
    • d) The magistrate can impose an additional licence disqualification period (although this is very rare)
    • e) There will be court costs of approximately $180 (as at July 2023)

Generally courts treat mobile phone offences seriously and are reluctant to offer leniency unless there are extenuating circumstances. If you would like personalised advice, please call us on 0416 224 601 for a paid consultation.

Good Behaviour Licence

If you exceed your 13 demerit point limit, then you will receive a notice from Transport for NSW that offers you a choice between service a suspension period of 3-5 months, depending on how far over 13 points you have gone, and taking up a good behaviour licence.

The good behaviour licence is an opt in agreement between you and Transport for NSW, where you agree not to accrue 2 or more points during the period of a year. If you get through the year without accruing 2 or more demerit points, then you get all your points back. If you incur 2 or more points during the year, then your licence will be suspended for a period that is double your original suspension, so 6-10 months. After serving that time off the road, you get all your points back.

If You Have Committed An Offence In Breach Of A Good Behaviour Licence

The main way to avoid the demerit points from a new offence are to elect to take it to court and:

  1. Through negotiations the prosecutors decide to withdraw the charge,
  2. After a hearing you are found not guilty of the offence, or
  3. The magistrate finds you guilty but dismisses the matter without conviction.

Not Guilty

If you think you are not guilty of the new offence and would like personalised advice, please call us on 0416 224 601 to arrange a paid consultation for a personalised assessment of your case.

Guilty

If you are guilty of the offence but are concerned about accruing the demerit points, then you can take the matter to court, plead guilty and seek that the matter be dismissed without conviction. This is sometimes called a ‘section 10’ or ‘non-conviction’. If the court agrees not to record the conviction then you won’t receive the demerit points, and in turn your licnece is not suspended.

The decision not to convict an offender is a “discretionary one” – so it is up to the magistrate hearing the matter to decide whether they will extend leniency in your case.

When making their decision, the Magistrate will consider the circumstances of the offence (whether there is a good story or explanation behind what happened), your traffic record (which may not assist you if you are about to run out of demerit points) and anything else that is relevant- like your completion of the traffic offender’s program. Your need for a licence MAY be considered here, but as the magistrate isn’t deciding whether or not to suspend your licence, but only the appropriate penalty for the new offence, your need for a licence often won’t be given much weight.

Generally, our advice in most cases is that your chances of obtaining a non-conviction for a matter in breach of a good behaviour licence are around 30%. Your explanation for the offence, traffic record and personal circumstances could impact on your chances.

You must also consider the risks- if you are convicted, then:

  1. The matter can appear on criminal record checks
  2. The Court could increase your fine
  3. The demerit points will be put on your record and, if they put you over your limit, Transport for NSW will send you a notice of suspension
  4. The magistrate can impose an additional licence disqualification period (although this is very rare, it is worth being aware of the risk if your record is particularly bad)
  5. There will be court costs of approximately $180 (as at July 2023)

If you have read this and would like personalised advice, please call us on 0416 224 601 for a paid consultation.

 

If you have read this and would like personalised advice, please call us on 0416 224 601 for a paid consultation where we can provide a personalised assessment of your case.

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