Driving Whilst Disqualified
Secure the strong legal defence you deserve
DRIVING WHILST DISQUALIFIED
DRIVING WHILST DISQUALIFIED
Driving whilst disqualified is an offence under section 54(1) of the Road Transport Act 2013.
The offence of driving whilst disqualified covers:
- those who drive a motor vehicle on a road or road related area whilst their licence is disqualified, and
- those who make an application for a drivers licence whilst their licence is disqualification and state their name falsely or fail to mention that their licence is disqualified.
PENALTIES
The available penalties for driving whilst disqualified are as follows:
| PENALTIES | FIRST OFFENCE | SECOND OR SUBSEQUENT OFFENCE |
| Maximum court imposed fine | $3,300 | $5,500 |
| Maximum gaol term | 6 months | 12 months |
| Automatic disqualification period | 6 months | 12 months |
| Minimum disqualification period | 3 months | 6 months |
| Maximum disqualification period | Unlimited | Unlimited |
WHAT IS A “SECOND OR SUBSEQUENT OFFENCE”?
A second or subsequent offence means that the offender has either been convicted of a previous offence of drive whilst disqualified within the past 5 years, or another earlier “major offence”, for example drink driving, in the past 5 years. As the offence of drive whilst disqualified requires some disqualification to have already been ordered by a court, it is very common for this offence to constitute a second or subsequent offence.
It is a defence to a charge of driving whilst disqualified if the defendant can establish that they were under an honest and reasonable mistaken belief that their licence was not disqualified.
There are three general components to this:
- The belief must be an honest belief (this is a subjective assessment)
- It must have been reasonable in the circumstances for the defendant to hold that belief (this is an objective assessment)
- The belief must relate to a mistake of fact and not law
An example of an honest and reasonable mistaken belief for a charge or drive whilst disqualified may be if the defendant was unaware that a conviction was entered in their absence and they continued to drive even after their licence was disqualified by the court. Whilst this may be a difficult defence to run, an experienced criminal lawyer will be able to assist in obtaining the relevant evidence to be able to run this defence effectively and successfully.
WILL I LOSE MY LICENCE?
If the court records a conviction, your licence will be disqualified. The magistrate has no discretion not to impose a period of disqualification less than the minimum period, being 3 months for a first offence and 6 months for a second offence. It is important to note that these are the minimum disqualification periods and the court does have the discretion to increase this disqualification periods to the automatic periods of disqualification.
The only way to avoid a disqualification after being found guilty, or pleading guilty, is if the court deals with your matter by way of non-conviction. As with any offence, even after a finding of guilt a court can still decide not to record a conviction.
Should the court convict and disqualify you, the disqualification will commence at the time of conviction.
CAN I AVOID A CONVICTION?
As with any offence, even after a finding of guilt a court can still decide not to record a conviction under Section 10 of the Crimes (Sentencing Procedure) Act 1999.
A section 10 is not always appropriate or attainable even if an offender has no prior criminal history. This is because a magistrate is required to take into account the following factors when considering sentencing an offender under section 10:
- The person’s character, antecedents, age, health and mental conditions;
- The trivial nature of the offence;
- The extenuating circumstances in which the offence was committed; and
- Any other matter that the court thinks proper to consider.
However, it is important to note that this list is not exhaustive, and simply ticking each box will not guarantee an offender receives a section 10.
Some of the additional factors the court will consider when sentencing you, and when deciding whether an order under Section 10 Crimes (Sentencing Procedure) Act 1999 is appropriate, include:
- The reason you were driving at the time of the offence
- Your traffic record
- Whether you have been convicted of any other offences, and what those offences are
- Your remorse and contrition, and an attendance at the Traffic Offenders Program
Steven Mercael
Principal Lawyer
