Maximum Penalties for Repeat Drink Driving: Report

6. Comparison of Statutory Maximum Penalties for Repeat Offenders in Australia

Each Australian jurisdiction has legislation regulating drink driving. Most jurisdictions provide a maximum fine and/or term of imprisonment for the relevant offences. Each jurisdiction also provides ancillary penalties such as cancellation of an offender’s driver’s licence or permit and disqualification from obtaining a new one. In addition some jurisdictions have introduced education programs, alcohol interlock programs and impoundment or forfeiture of vehicles. Comparisons between jurisdictions are made problematic because of the use of different terminology, different categories of drink driving offences and different prescribed penalties. There is also variation as to how ‘repeat’ offenders are classified.

The legislation in most Australian jurisdictions provides a term of imprisonment as the maximum penalty for offenders with prior convictions committing the relevant offences. However, there is marked disparity across Australia in the level of that maximum imprisonment term. Each jurisdiction also provides a mandatory minimum period of disqualification from driving for most of the relevant offences. As Tables 5 to 10 demonstrate, Victoria has the highest minimum period of disqualification from driving for a first or second offence against the relevant provisions. For a third offence against the relevant provisions the minimum disqualification periods provided in Victoria are among the highest in Australia. This should be borne in mind when contrasting the statutory maxima.

6.1 Category A Offences

The Victorian provisions governing the maximum statutory penalty of imprisonment for Category A (reach or exceed prescribed BAC) offences do not distinguish between offenders on the basis of BAC, although that is clearly a factor that the sentencing judge can take into account as part of the circumstances of the offence. Figure 15 (above) illustrates that BAC levels do in fact have an impact on sentence severity. By comparison, the legislation in all other jurisdictions in Australia provides an ascending hierarchy of statutory maximum penalties on the basis of the offender’s BAC level.

Although the maximum available fine in Victoria is comparable with other Australian jurisdictions, it is interesting to compare the Victorian statutory maximum imprisonment term for repeat offenders with the statutory maximum penalties provided for similar offences in other jurisdictions. For the purposes of comparison the statutory maximum penalties are contrasted for offenders at three BAC levels—0.05, 0.10 and 0.15, for a second offence (see Table 4 and Figure 18).

Table 4: Maximum statutory terms of imprisonment (months) in Australia for an offender with one prior offence committing a Category A offence by BAC level

BAC	VIC	ACT	NSW	NT	QLD	SA	TAS	WA
0.05	3	0	0	6	6	0	6	0
0.10	3	6	12	12	6	0	12	0
0.15	3	12	24	12	18	0	24	9

Figure 18: Maximum terms of imprisonment (months) in Australia for an offender with one prior offence committing a Category A offence by BAC level

BAC	Maximum term (months) by jurisdiction
	VIC	ACT	NSW	NT	QLD	SA	TAS	WA
0.05	3	0	0	6	6	0	6	0
0.10	3	6	12	12	6	0	12	0
0.15	3	12	24	12	18	0	24	9

Table 5 shows the statutory maximum penalties across Australia for a first, second or third offence, together with the minimum period of disqualification where the BAC is 0.05. For a second offence involving a BAC of 0.05 the Victorian maximum penalty of three months’ imprisonment falls between the lowest and highest maximum penalty in other jurisdictions. The highest maximum imprisonment term for offenders committing a second offence at this BAC level is six months (Queensland, the Northern Territory and Tasmania). In Queensland the statutory maximum penalty is higher again for a third offence (nine months). The Australian Capital Territory, New South Wales, South Australia and Western Australia do not allow for a sentence of imprisonment for repeat offenders in this category.

Table 5: Maximum penalty and minimum disqualification period for Category A offences with BAC of 0.05

State	Maximum Penalty First Offence	Minimum Disqualification First Offence	Maximum Penalty Second Offence^92	Minimum Disqualification Second Offence	Maximum Penalty Third Offence^93	Minimum Disqualification Third Offence^94
VIC	12 penalty units [PU] ($1,257.72)^95	6 months’ disqualification	25 PU ($2,620.25) or 3 months’ imprisonment	12 months’ disqualification	–	–
ACT	5 PU ($500)	2 months’ disqualification	10 PU ($1,000)	3 months’ disqualification	–	–
NSW	10 PU ($1,100)	3 months’ disqualification	20 PU ($2,200)	6 months’ disqualification	–	–
NT	5 PU ($550) or 3 months’ imprisonment	–	7.5 PU ($825) or 6 months’ imprisonment	–	–	–
QLD	14 PU ($1,050) or 3 months’ imprisonment	1 month’s disqualification^96	20 PU ($1,500) or 6 months’ imprisonment^97	3 months’ disqualification^98	28 PU ($2,100) or 9 months’ imprisonment^99	DEFAULT disqualification of 6 months^100
SA	$700		$700	3 months’ disqualification	$700	6 months’ disqualification^101
TAS	10 PU ($1,000) and/or 3 months’ imprisonment	3 months’ disqualification	20 PU ($2,000) and/or 6 months’ imprisonment	6 months’ disqualification	–	–
WA	4 PU ($200)	–	10 PU ($500)	3 months’ disqualification	–	–

As BAC levels increase so does the statutory maximum penalty available in most jurisdictions. As Table 6 shows, for BAC levels of 0.10, the Victorian statutory maximum penalty of three months’ imprisonment is low compared to those other jurisdictions that provide for imprisonment. The longest statutory maximum penalty of imprisonment available for offenders committing a second offence at this BAC level is 12 months (New South Wales, the Northern Territory and Tasmania). South Australia and Western Australia do not allow for a sentence of imprisonment for repeat offenders in this category.

Table 7 shows the statutory maximum penalty for a first, second or third offence, together with the minimum period of disqualification from driving for an offence where the BAC is 0.15 in each jurisdiction. The Victorian statutory maximum penalty is low compared to other jurisdictions that provide for imprisonment. The longest statutory maximum penalty of imprisonment available for offenders committing a second offence at this BAC level is 24 months (New South Wales and Tasmania). In Queensland for a third offence the offender must be given imprisonment as a whole or part of the sentence in some circumstances. South Australia does not impose a sentence of imprisonment for repeat offenders in this category.

Table 6: Maximum penalty and minimum disqualification period for Category A offences for BAC of 0.10

State	Maximum Penalty First Offence	Minimum Disqualification First Offence	Maximum Penalty Second Offence	Minimum Disqualification Second Offence	Maximum Penalty Third Offence	Minimum Disqualification Third Offence
VIC	12 penalty units [PU] ($1,257.72)	10 months’ disqualification	25 PU ($2,620.25) or 3 months’ imprisonment	20 months’ disqualification	–	–
ACT	10 PU ($1,000) and/or 6 months’ imprisonment	3 months’ disqualification	10 PU ($1,000) and/or 6 months’ imprisonment	6 months’ disqualification	–	–
NSW	20 PU ($2,200) and/or 9 months’ imprisonment	6 months’ disqualification	30 PU ($3,300) and/or 12 months’ imprisonment	12 months’ disqualification	–	–
NT	7.5 PU ($825) or 6 months’ imprisonment	6 months’ disqualification	20 PU ($2,200) or 12 months’ imprisonment	12 months’ disqualification	–	–
QLD	14 PU ($1,050) or 3 months’ imprisonment	1 month’s disqualification^102	20 PU ($1,500) or 6 months’ imprisonment^103	3 months’ disqualification^104	28 PU ($2,100) or 9 months’ imprisonment^105	DEFAULT disqualification of 6 months^106
SA	$900	6 months’ disqualification	$1,200	12 months’ disqualification	$1,800	24 months’ disqualification
TAS	20 PU ($2,000) and/or 6 months’ imprisonment	6 months’ disqualification	40 PU ($4,000) and/or 12 months’ imprisonment	12 months’ disqualification	–	–
WA	30 PU ($1,500)	4 months’ disqualification	30 PU ($1,500)	6 months’ disqualification	30 PU ($1,500)	8 months’ disqualification

Table 7: Maximum penalty and minimum disqualification period for Category A offences for BAC of 0.15¹⁰⁷

State	Maximum Penalty First Offence	Minimum Disqualification First Offence	Maximum Penalty Second Offence	Minimum Disqualification Second Offence	Maximum Penalty Third Offence	Minimum Disqualification Third Offence
VIC	12 penalty units [PU] ($1,257.72)	15 months’ disqualification	25 PU ($2,620.25) or imprisonment for 3 months	30 months’ disqualification	–	–
ACT	15 PU ($1,500) and/or 9 months’ imprisonment	6 months’ disqualification	20 PU ($2,000) and/or 12 months’ imprisonment	12 months’ disqualification	–	–
NSW	30 PU ($3,300) and/or 18 months’ imprisonment	12 months’ disqualification	50 PU ($5,500) and/or 2 years’ imprisonment	2 years’ disqualification	–	–
NT	10 PU ($1,100) or 12 months’ imprisonment	12 months’ disqualification	20 PU ($2,200) or 12 months’ imprisonment	18 months’ disqualification (5 years in some circumstances^108)	–	–
QLD	28 PU ($2,100) or 9 months’ imprisonment	DEFAULT disqualification of 6 months	60 PU ($4,500) or 18 months’ imprisonment	DEFAULT disqualification of 9 or 12 months^109	60 PU ($4,500) or 18 months’ imprisonment.^110	DEFAULT disqualification of 12 or 24 months^111
SA	$1,200	12 months’ disqualification	$2,000	3 years’ disqualification	$2,500	3 years’ disqualification
TAS	30 PU ($3,000) and/or 12 months’ imprisonment	12 months’ disqualification	60 PU ($6,000) and/or 24 months’ imprisonment	24 months’ disqualification	–	–
WA	50 PU ($2,500)	6 months’ disqualification	70 PU ($3,500) or 9 months’ imprisonment	24 months’ disqualification	100 PU ($5,000) or 18 months’ imprisonment	Permanent disqualification