FATIGUE BREACH: An alleged offence by a client carried a maximum penalty of a $16,830 fine and the loss of four demerit points.
FATIGUE BREACH: An alleged offence by a client carried a maximum penalty of a $16,830 fine and the loss of four demerit points.

DID YOU KNOW: Paying a fine stays on record

I HAVE been asked to comment upon a penalty notice that was issued by Victoria Police to a truck driver for failing to have his address correctly recorded in a logbook.

Logbook offences are a common problem faced by truck drivers. It's fair to say that your logbook will almost certainly be reviewed by a police officer or compliance officer on a regular basis.

The difficulty for most people who receive a penalty notice is that while you may feel the penalty is unfair, the fine may be less than the cost of taking the matter to court.

Sometimes drivers decide they may as well just pay the fine.

A consequence of accepting the penalty notice is that it will appear on your record and may be taken into account at a later point in time.

You should be aware that once a penalty notice is paid it will remain on your record forever.

One avenue available is to make representations to the relevant authority that the penalty notice should be withdrawn due to extenuating circumstances at the time of the alleged offence.

Representations are often made by solicitors on behalf of drivers and these representations can sometimes be successful.

In the event that the representation is not successful it is still possible to take the matter to court and have a magistrate consider the fine independently.

If the fine you are facing is substantial or your job is at risk, you also have the option to court elect the penalty notice.

When a court considers a matter that arises through a penalty notice or by way of a court attendance notice, the following are generally taken into account:

The court will firstly have regard to the seriousness of the offence.

On a plea of "guilty” the magistrate will consider the circumstances surrounding the offence, the person's driving history and any previous offences that may have come before the court.

On a plea of "not guilty” you will need to satisfy the magistrate that you did not commit the offence that is alleged in the penalty notice or court attendance notice.

It should be noted when court electing a ticket that the penalties available to the court can be significantly higher than the original fine.

It should also be noted that time limitations apply and you have to take the penalty notice to court within the defined period if you wish to court elect the penalty.

One of my solicitors recently dealt with a "critical risk” logbook offence in which the client had no previous record and we were able to satisfy the court that the matter should be dismissed pursuant to Section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999.

Before deciding what to do, ask a solicitor to assess your case to determine the best course of action.

Fatigue management

An employed driver from Newcastle contacted us to get advice on a court attendance notice he had been issued in NSW.

He had been charged with solo driver rest less than BFM minimum time - critical risk - Heavy Vehicle National Law (NSW) Section 254(1)(b). This offence carries a maximum penalty of a $16,830 fine and the loss of four demerit points.

Our client has more than 13 years of experience driving heavy vehicles in Europe, Afghanistan and Australia. He has been driving for his current employer for the past 12 months and is highly regarded by the owners. He is a qualified firefighter and has served in the armed forces in Europe.

Our client was in the process of obtaining Australian citizenship and had paid out more than $18,000 in application and filing fees. He was very concerned that a conviction could jeopardise his application for citizenship and see him lose his employment.

Our client was said to have failed to observe the required seven hours of unbroken rest over the 24 hours between 3.30am on January 24, 2019 and 3.30am on January 25, 2019.

We reviewed the wider context of his work and rest patterns before and after the period in which the office took place, especially in relation to our client's personal habits and his actual periods of sleep as opposed to just "rest”.

Fourtree Lawyers solicitors set about explaining to the magistrate the circumstances leading up to the offence.

In addition, our client's extensive experience driving heavy vehicles, his faultless driving record, his good character and the technical nature of the breach were relevant to the submissions with which we argued for leniency.

After considering our submissions, the magistrate found the offence proven, however the charge was dismissed under section 10(1)(a) of the Crimes (Sentencing Procedure) Act.

Our client was very relieved at the outcome.

If you have been issued with a logbook breach notice you should discuss the background leading up to the offence with one of our solicitors. It may be possible to avoid a conviction if a strong case can be put to the magistrate.

Fourtree Lawyers provide assistance with heavy vehicle matters Australia wide.

DISCLAIMER: The material in this article is provided for general information purposes in summary form on legal topics that are current when published. The content does not constitute legal advice and should not be relied upon as such. Appropriate legal advice should be obtained in actual situations.

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