9Determination of “first offence” and “second or subsequent offence”

#### 9 Determination of “first offence” and “second or subsequent offence” 9 Determination of “first offence” and “second or subsequent offence” (cf DL Act, ss 25(5) and 25A(11); Gen Act, s 96; STM Act, cl 2 of Dict) > > (1) Application of section This section applies to the determination of whether an offence against a provision of this Act or the statutory rules is— > > > > > (a) a first offence, or > > > > > (b) a second or subsequent offence. > > > > Note. > > > > The Act and the statutory rules provide in some cases for different penalties or disqualification periods, or for forfeitures or the making of mandatory interlock orders, in connection with an offence depending on whether a particular offence is a first offence or a second or subsequent offence. > > > (2) Second or subsequent offence If a person is convicted of an offence (the new offence) against a provision of this Act or the statutory rules, the new offence is a second or subsequent offence only if— > > > > > (a) the person, within the applicable re-offending period (if any) for the offence concerned, was convicted of another offence (the previous offence) that was— > > > > > > > (i) an offence against the same provision, or > > > > > > > (ii) an offence against a former corresponding provision, or > > > > > > > (iii) an equivalent offence to the new offence, and > > > > > (b) the occasion when the new offence occurred was different from the occasion when the previous offence occurred. > > > (2A) Second or subsequent offence where previous offence dealt with by way of penalty notice If a person is convicted of an offence against this Act (the new offence), that offence is a second or subsequent offence if— > > > > > (a) within the period of 5 years immediately before being convicted of the new offence, the person committed an alcohol or other drug related driving offence (the previous offence), and > > > > > (b) that previous offence— > > > > > > > (i) was against the same provision as, or was an equivalent offence to, the new offence, and > > > > > > > (ii) was dealt with by way of penalty notice, and > > > > > (c) the occasion when the new offence occurred was different from the occasion when the previous offence occurred. > > > (3) Except as provided by subsection (4), the applicable re-offending period for a particular offence for the purposes of subsection (2)(a) is— > > > > > (a) the period of 5 years, or > > > > > (b) such other period as may be specified by a provision of this Act (in the case of offences against this Act) or the statutory rules (in the case of offences against the statutory rules) as the applicable re-offending period for the offence for the purposes of this section. > > > (4) An offence does not have an applicable re-offending period if a provision of this Act (in the case of offences against this Act) or the statutory rules (in the case of offences against the statutory rules) specifies that there is no such period for the offence for the purposes of this section. > > > (5) A previous offence is an equivalent offence to a new offence for the purposes of subsection (2)(a)(iii) or (2A)(b)(i) if— > > > > > (a) where the new offence is an offence against section 54(1)—the previous offence was an offence against section 53(3) or 54(3) or (4) or a corresponding former provision or a major offence, or > > > > > (b) where the new offence is an offence against section 54(3)—the previous offence was an offence against section 53(3) or 54(1) or (4) or a corresponding former provision or a major offence, or > > > > > (c) where the new offence is an offence against section 54(4)—the previous offence was an offence against section 53(3) or 54(1) or (3) or a corresponding former provision or a major offence, or > > > > > (d) where the new offence is an offence against a provision of Chapter 5 or Schedule 3—the previous offence was a major offence, or > > > > > (e) a provision of this Act (in the case of offences against this Act) or the statutory rules (in the case of offences against the statutory rules) declares the offence to be an equivalent offence to another offence for the purposes of this section. > > > (6) Without limiting subsection (5)(e), an offence against a law of another jurisdiction may be declared to be an equivalent offence for the purposes of this section. > > > (7) In determining whether an offence is a second or subsequent offence, the following matters are immaterial— > > > > > (a) the order in which the offences concerned are committed, > > > > > (b) whether or not the offences concerned were subject to the same penalties. > > > (8) First offence An offence against a provision of this Act or the statutory rules is a first offence if it is not a second or subsequent offence. > > > (9) If the court is satisfied that a person is guilty of an offence but cannot determine (from the information available to the court) whether the offence is a first offence for which the person was convicted, the court may only impose a penalty for the offence as if it were a first offence. > > **s 9:** Am 2014 No 42, Sch 1 \[3\]; 2018 No 54, Sch 1 \[4\] \[5\].