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Heavy Vehicle Offences
Heavy Vehicle Offences
The Heavy Vehicle National Law (“HVNL”) establishes a national law for heavy vehicles over 4.5 tonnes and creates offences for every party in the chain of responsibility for safety breaches.
The most common offences enforced against heavy vehicles drivers or parties in the chain of responsibility are under the HVNL with fines of up to $20,000.00 (plus CPI increases) or up to $300,000.00 and/or 5 years imprisonment for an individual or $1,500,000.00 for a corporation if a breach involves a risk of death or serious injury.
Many HVNL offences are divided into categories of minor, substantial, severe or critical risks. It is important that the category is determined correctly as this will have a significant impact upon the potential penalty.
While not all offences attract demerit points to your drivers licence, some offences incur up to 4 points which or 8 points during a double demerit point period which may accrue to your NSW drivers licence which may have serious consequences, particularly to professional drivers.
Chain of responsibility
All parties in the chain of responsibility may be held liable for any breach in circumstances if they could have exercised any control or influence to prevent the breach from occurring.
Chain of responsibility compliance applies with respect to things such as mass, dimension, loading, speed, fatigue, vehicle standards and maintenance.
Recent changes to the HVNL mean that parties within the chain of responsibility may be prosecuted even before there is an incident whether these offences occur on site or off.
The possible defences available to HVNL offences, including chain of responsibility offences, are more limited than other areas of traffic law and you should consult your traffic specialist at Catron Simmons Lawyers for advice and guidance in this regard.
Possible defences may include:
- That you did not have any control or influence to prevent the breach from occurring.
- That all reasonably practicable steps were taken to ensure safety of activities undertaken.
- That appropriate steps were taken to eliminate or minimise and manage the relevant risk for example adoption of a registered industry code.
If you are convicted for an offence of driving or permitting a person to drive a heavy vehicle not complying with dimension requirements the following maximum penalties apply:
|Offence category||Maximum penalty|
|Severe risk||$10,000.00 plus CPI|
|Substantial risk||$5,000.00 plus CPI|
|Minor risk||$3,000.00 plus CPI|
|Offences where there are no goods or passengers||$3,000.00 plus CPI|
A heavy vehicle operating under a permit or authority (for example an oversize overmass combination including a low loader) determined to be operating outside the bounds of the permit or authority may be subject to standard dimension and mass requirements. As a result many of these breaches will fall well within the critical risk category with a maximum penalty of $10,000.00 plus CPI.
The maximum penalty for contravening a mass or dimension exemption generally attracts a maximum penalty of up to $6,000.00 plus CPI.
If you are convicted for an offence of driving or permitting a person to drive a heavy vehicle not complying with mass requirements the following maximum penalties apply:
|Offence category||Maximum penalty|
|Severe risk||$10,000.00 plus CPI plus an additional $500.00 plus CPI for every 1% over 120% overload|
|Substantial risk||$6,000.00 plus CPI|
|Minor risk||$4,000.00 plus CPI|
A heavy vehicle operating under a permit or authority (for example an oversize overmass combination including a low loader) determined to be operating outside the bounds of the permit or authority may be subject to standard dimension and mass requirements. As a result many of these breaches will fall well within the critical risk category with a maximum penalty of $20,000.00 plus CPI.
The maximum penalty for contravening a mass or dimension exemption generally attracts a maximum penalty of up to $6,000.00.
The HVNL imposes a positive obligation upon drivers to avoid driving a fatigue regulated heavy vehicles while impaired by fatigued by creating a specific offence for driving while fatigued. This offences has a maximum penalty of $6,000.00 plus CPI.
There are strict requirements with respect to allowable work hours and requirements for drivers to keep accurate records of their work and rest times. Whether you are operating under standard, Basic Fatigue Management (“BFM”), Advanced Fatigue Management (“AFM”) or exemption hours, fatigue related offences will fall into different categories.
You may be liable for more than one offence in the same period of time, for example, you may be issued with a Court Attendance Notice for exceeding your maximum working hours and for not having the required continuous rest time in the same 24 hour period.
While the hours of work and rest time may differ depending upon which hours you are working under the penalties for the different categories are the same and are as follows:
|Offence – Category||Maximum penalty|
|Working more than maximum work time – minor||$4,000.00 plus CPI|
|Resting less than the minimum rest time – minor||$4,000.00 plus CPI|
|Working more than maximum work time – substantial||$6,000.00 plus CPI|
|Resting less than the minimum rest time – minor||$6,000.00 plus CPI|
|Working more than maximum work time – severe||$10,000.00 plus CPI|
|Resting less than the minimum rest time – severe||$10,000.00 plus CPI|
|Work more than maximum work time – critical||$15,000.00 plus CPI|
|Resting less than the minimum rest time – critical||$15,000.00 plus CPI|
In certain circumstances you may be able to raise a defence to the above fatigue related offences, for example where it can be proved that a split rest break or delayed short rest breaks apply and you should consult your traffic specialist at Catron Simmons Lawyers for advice and guidance in this regard.
When completing your log book entries It is important to know that in the majority of cases any part of a 15 minute period that is worked is counted as 15 minutes, for example working 17 minutes is counted as a 30 minute work period whether you work the remaining 13 minutes or not.
My Licence has been suspended, What can I do?
You need to lodge an application to the Local Court, this application must be within 28 days so it is important to get legal advice early.
The test for this appeal is quite high. The applicant must show that there are “exceptional circumstances” as to why you need a licence. Therefore, reasoning such as transport to/from work, school and/or even having your licence as part of your job are not considered exceptional or extraordinary.
Catron Simmons Lawyers, can assist you in preparing, the application to give you the best chance of returning to driving as soon as possible.
What are the alternatives to imprisonment?
You should obtain legal advice before going to court and pleading guilty to any offence. A well presented sentencing will ensure that you receive the best outcome for your situation.
In NSW, a court can impose any of these types of penalties:
Non Conviction Dismissal (s10(1)a)
This is an order of the court that means there is no conviction recorded and no further action/penalties. Essentially as soon as you leave the court the matter is completely finalised.
Conviction Only s10A
This is an order from the court that means you are convicted of the offence but there is no further penalty and the matter is completely finalised once you leave the court room.
Community Release Order (CRO)
A CRO is the less serious of the bonds; they come in two forms conviction CRO and non-conviction CRO. These bonds can be supervised by Community Corrections or not, it is a matter for the court. That being said the court can order supervision and Community Corrections can discontinue supervision if they deem appropriate. A standard condition of all orders is that an offender must not commit any offence and that the offender must appear in court if called upon to do so. Additional conditions can also be imposed like any other bond that can include but not limited to alcohol/drug restrictions and/or rehabilitation, curfew, community service orders, non-association and/or place restriction orders.
A Court can order a fine as the whole or part of a penalty, meaning the court can order a bond in conjunction with a fine. A fine is a conviction. The maximum fine available for each offence varies and is usually articulated as part of the offence as a penalty unit. Generally speaking, after the court has sentenced you and given you a fine you have 28 days to pay, however, the court registry can increase this time to pay the fine and arrange payment plans. Failure to pay the fine will result in an enforcement order, this can have consequences such as suspension of your drivers licence and/or registration. Following this further orders such as a civil enforcement order, community service and/or goal may be utilised instead.
Community Corrections Order (CCO)
A CCO is the more serious of the bonds and are used when the offence is to serious to be dealt with by way of a fine or CRO. The CCO cannot exceed three years. This bond can be supervised or unsupervised by Community Corrections. A standard condition of all orders is that an offender must not commit any offence and that the offender must appear in court if called upon to do so. The court can add additional orders including but not limited to alcohol/drug restrictions and/or rehabilitation, curfew, community service orders, non-association and/or place restriction orders.
Intensive Correction Order (ICO)
An ICO is a type of imprisonment or custodial sentence yo to two courts that the court decides can be served in the community. The ICO is the most serious of court orders that an offender can serve in the community and are not available for a number of offences involving Violence, breaches of public safety and child related matters. The court can add conditions to an ICO such as home detention, electronic monitoring, curfews, community service work, alcohol/drug restrictions, place restrictions, association orders and/or whatever the court see fits. An ICO is monitored and supervised by Probation and Parole NSW and any breaches of the order are referred to the NSW State ParolAuthority (SPA) and not the courts. Often the offender is required to then serve the remainder of their sentence in custody as a result of a serious breach.
What are my options? What is a conviction?
A conviction means that the court has found you guilty and has deicide to record the offence in a ‘formal’ declaration.
It is possible to have a matter ‘proven, but no conviction recorded’ if the court sees fit. This is commonly referred to as a s10 (although it is now a Community Release Order without conviction or s10(1)a)).
If convicted of any offence, this is recorded on your criminal record. This existence of a criminal record may affect future employment, travel especially to places like the United States.
If you believe you are not guilty of an offence it is important to get legal advice early as there are discounts offered by the court for early pleas in sentencing.
What is written notice of pleading? Should I complete it?
A Written Notice of Pleading is a a document that is given to you by Police when charged or alternatively a letter or document sent to the court outlining your wish to plead guilty to the charges enforce the court.
Although this can be an attractive option and the forms seem fairly straightforward and it means that that you would not have to attend court this is actually a bad idea. A written notice stops the court understanding more about you as a person, your income, responsibilities and factors that could mitigate the punishment on sentence.
On a written plea of guilty the magistrate only has the Police Fact Sheet and Criminal Record as information, and often the penalty imposed would be greater, as the Court is not aware of the above factors. It is important to understand and agree with the contents of any fact sheet before they are tendered as this is what the court will base all their decisions on.
At Catron Simmons Lawyers, we can put forward the best case in your defence to often a fairer and more just outcome.