In New South Wales there is a particularly powerful provision under the Crimes (Sentencing Procedure) Act 1999 that is section 10, that section provides the court may discharge an offence after a person is found guilty or pleaded guilty to court despite the fact that offence has been admitted or has been proven correct.
It's important to note that section 10 only applies to charges in New South Wales and doesn't apply in Queensland but do we have something in Queensland that is similar?
Why does section 10 exist?
Section 10 was set up in New South Wales so that certain people, especially first time offenders or those pleading guilty to minor offences, could despite having breached the law, receive no punishment as a reflection of their previous good behaviour or the impact that a conviction for a minor offence might have on their future.
It's a way for the court to balance out punishment to ensure that people do not suffer more than they should.
Where a traffic offence is discharged under section 10 no disqualification will need to be served, no fine is imposed, no conviction is recorded and no demerit point accrue.
Generally a person applying for section 10 would be a first time offender with good prospects of rehabilitation however there is actually nothing under the act to say that a person cannot have more than one section 10 though we understand this is unusual.
If we don't have section 10 in Queensland then what do we have?
The closest Queensland has to section 10 is an absolute discharge under section 19 of the Penalties and Sentences Act.
This power to absolutely discharge a person has traditionally been very rarely given and only for the most minor of offences. While a rich tradition has built up around section 10’s in New South Wales the same cannot be said for an absolute discharge under Queensland law.
It is actually quite strange why Queensland has sought to restrict an absolute discharge so much. One would have thought that where a punishment will be crushing on a person even for a minor offence especially a first time offender the court should be encouraged to give that person a chance.
Perhaps the main reason an absolute discharge under section 19 of the Penalties and Sentences Act is so rarely done in Queensland, in regards to traffic offences at least, is that if the law states that the court must impose a licence disqualification then the court must at least impose the minimum disqualification even if the charge is absolutely discharged.
This is a key difference between Queensland and New South Wales the NSW court does not have to impose any disqualification however that is not the case in Queensland if there is a minimum disqualification.
Most offences such as a drink driving, drug driving, unlicenced driving, disqualified driving, dangerous driving etc even if the court were to discharge a person absolutely under section 19 the minimum disqualification would still be imposed.
To illustrate this let’s look at an example a low-range drink driving offence. If committed in New South Wales and the court gave an absolute discharge the driver might end up with no disqualification or fine however if that same offence was committed in Queensland they would have to be a period of disqualification imposed even if they were absolutely discharged from that drink driving offence.
It should be noted that, unlike New South Wales, Queensland does have the ability for the court to grant a work licence to some people who have lost their licence.
As the well respected and now retired Judge Robertson in the case of Strickland v Klupfel said when discussing the fact that an absolute discharge does not prevent mandatory disqualification periods from being imposed:
In my opinion this case is a clear example of the individual injustice that inevitably
follows when mandatory sentencing regimes are introduced. The same result
followed, but with much more severe consequences, when mandatory six month
imprisonment terms were introduced in the last century for disqualified driving.
It is not however for courts to make the law. It is the role of the courts at this level
to interpret and apply the law and give effect to it.
Conclusion
Although Queensland does have a similar law to section 10 that section is in fact much more restrictive.
While the author believes that section 19 should be used more often in Queensland. The fact is when it comes to traffic matters that have mandatory periods of disqualification, as almost all traffic offences before the court do, even if the court were to grant an absolute discharge the fact remains the disqualification periods would still be imposed under the law.
Perhaps it is time for the government to revisit whether section 19 should be expanded so that people who have committed minor traffic offences like low range drink driving or unlicensed driving could in appropriate circumstances not have a disqualification period Imposed.
