Penalty notice or court?

2.1The penalty notice regime

Since 20 May 2019 police have had a discretion to deal with a first s 111 offence by penalty notice rather than by Court Attendance Notice [review: commencement date and the enabling provision]. The notice carries a fixed fine, understood to be $572, and an automatic three-month licence suspension imposed administratively by Transport for NSW [review: current amount, suspension period and mechanism]. Payment finalises the matter: no court, no conviction, and no entry on the criminal record, though the offence is recorded on the driving record and counts for the purposes of any later "second offence" characterisation [review: whether a penalty-notice s 111 counts as a prior for s 9 purposes].

2.2The election

The recipient may elect to have the matter dealt with by a court instead of paying. The election must be made within the period stated on the notice, and once made it is irrevocable: the penalty-notice outcome is no longer available and the court sentences on the full range [review: election period and the process on election, including whether a CAN is then issued]. The practitioner's advice at this point is the most consequential in the course, because the client chooses between a certain three-month suspension and an uncertain court outcome that ranges from no disqualification to six months.

2.3The decision framework

The election is advised where the client has a strong s 10 case and a genuine need for the licence that can be evidenced; it is advised against where the client's record, the facts, or the client's inability to prepare make a s 10 unlikely, because the downside is a longer disqualification and a conviction. The practitioner frames it as a comparison of expected outcomes rather than a hope: what is the realistic probability of a s 10 on these facts, and does the client accept the downside if it is refused. A client who will not do the Traffic Offenders Program, assemble references and evidence, and attend court prepared should pay the notice.

2.4Clients who arrive with a CAN

Where police issued a CAN rather than a penalty notice, the election never arose and the court path is the only path. The practitioner does not advise the client to seek a penalty notice retrospectively; police discretion to substitute one after a CAN has issued is limited and rarely exercised [review: whether representations for a penalty notice in lieu of a CAN are entertained].