The sanctions for unlicensed driving offences, particularly driving whilst disqualified, suspended or cancelled are quite severe and many are surprised when advised that terms of imprisonment may apply.
For many people, the importance of holding a driver's licence cannot be overstated. Many rely on their driver's licence for employment purposes or to meet family commitments.
If you have been charged with an unlicensed driving (NSW) offence and require legal assistance, we invite you to contact your nearest Prime Lawyers office.
We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.
A person can be disqualified from holding or obtaining a licence due to committing certain driving offences. It is only the Court that has the power to disqualify a driver, not the RMS or the Police.
There are certain offences that attract mandatory disqualification periods upon conviction, such as:
- All drink driving offences - All drug driving offences - Driving at a speed or manner dangerous - Menacing driving - Street racing - Exceeding the speed limit by more than 30km/h - Negligent driving occasioning grievous bodily harm (GBH) or death - Driving whilst licence is suspended - Driving whilst disqualified - Other dangerous driving offences
The Court also has discretion to disqualify a driver for any other driving offence that comes before a Court, where the person is found to be guilty of the offence. Therefore, in most circumstances where someone is before a Court for a driving offence, they are exposed to the real possibility of being disqualified from holding or obtaining a licence.
The Law
A person who is disqualified from holding or obtaining a licence must not:
(i) drive on a road during the period of disqualification, or
(ii) make an application for a driver's licence during the period of disqualification and in respect of such an application state the person’s name falsely or incorrectly or omit to mention the disqualification.
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
Commentary
New South Wales driving laws can be harsh and the penalties that follow upon conviction for many driving offences are severe. The inability to drive for a prolonged period can me a a reduction in income, loss of employment or the derailment of a particular career. Not being able to continue in one's chosen career can also mean the closing down of a a business and the inability to maintain mortgage repayments. In short, a disqualification period can have devastating consequences.
For that reason, many drivers find it difficult to not drive during a period of disqualification or simply, feel that they are placed in a position where they need to take risks. Of course, the problems that they initially face as a result of a disqualification are magnified if they are detected and later charged by police for driving whilst disqualified.
The typical penalties for driving whilst disqualified vary; and although it is not impossible for the Court to decide to not convict an offender (and therefore not disqualify them further), in the overwhelming majority of cases, a conviction and further disqualification will apply. For repeat offenders, the severity of the punishment, in addition to any disqualification period, increase dramatically and it is not uncommon for repeat offenders to find themselves facing some form of a custodial sentence, including full time imprisonment.
Driving whilst disqualified is considered a serious offence by the Courts, particularly as the offending can be viewed as a direct contravention of a Court order. If continued disqualification periods do not appear to stop a particular offender from re-offending, then Courts often feel that they are left without a choice but to sentence the offender to a term of full time imprisonment.
Second or Subsequent Offence
As noted in the above table, the penalties for a "second or subsequent" offence are more severe for driving whilst disqualified and the automatic/minimum disqualification periods double. It is important to note that an offence of driving whilst disqualified is a second or subsequent offence if the offender has committed certain types of major offences within the period of 5 years prior to the most recent offence. As the previous offence does not have to be a drive whilst disqualified offence, and disqualification periods are generally imposed as a result of the commission of a major offence, invariably, whenever someone is charge with drive whilst suspended, it will be considered a "second or subsequent offence". (For a more detailed analysis on the meaning of "second or subsequent offence", clickhere.)
Defences
It is possible to defend a charge of drive whilst disqualified. The most obvious defence available to the charge is that the accused person was not driving a motor vehicle. This comes down to the particular circumstances of the alleged offending and whether the police are able to prove the identify of the driver of the vehicle. Sometimes, charges are defended on the basis that despite the accused person occupying the driver's seat of the vehicle, he or she was not driving.
Another way of defending allegations of driving whilst disqualified is to raise the reasonable possibility that the accused honestly believed that he or she was entitled to drive. This "defence" can only successfully be argued in very limited circumstances, as it would essentially involve some evidence that the accused person was not aware of the disqualification (or, as some recent Victorian cases have found, was not aware that he or she was not entitled to drive). This usually means that the person was not present in Court when they were convicted and therefore, disqualified. Not only would this occur in limited circumstances, but most Courts would find that not being at Court and then not making attempts to find out the Court outcome once a matter was in Court is simply not reasonable.
Our traffic lawyers have experience defending drive whilst disqualified charges and, where a plea of guilty is entered and the matter proceeds to sentence, appearing before the Court and presenting a plea in mitigation of sentence to obtain a more lenient penalty.
If you have been charged with driving whilst disqualified and require legal assistance, our experts at Prime Lawyers - Traffic Law Division can help. Contact us to make an appointment with a traffic lawyer at your nearest Prime Lawyers office.
When charged with driving while suspended NSW drivers face automatic disqualification periods, with additional penalties that can be severe for repeat offenders. A person's driver's licence can be suspended by either the RMS or the police. The RMS has several powers to suspend licences, whereas the police can only do so in limited circumstances. Below are some of the more common reasons and typical traffic offences that cause licences to be suspended by the RMS and the police.
- Exceeding allowable demerit point limit
- Exceeding the speed limit by more than 30km/h
- Immediate suspension if charged with certain drink driving offences or other forms of dangerous driving, certain speeding offences
- Non payment of fines
The Law
A person whose driver licence is suspended must not:
(i) drive on a road a motor vehicle of the class to which the suspended licence relates, or
(ii) make an application for a driver licence during the period of suspension and in respect of such an application state the person’s name falsely or incorrectly or omit to mention the suspension
Penalties
Where the suspension was for something other than non-payment of fines:
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
Where the suspension is for non-payment of fines:
PENALTIES
FIRST OFFENCE
SECOND OR SUBSEQUENT OFFENCE
Maximum court imposed fine
$3,300
$5,500
Maximum gaol term
N/A
6 months
Automatic disqualification period
3 months
12 months
Minimum disqualification period
1 month
3 months
Maximum disqualification period
Unlimited
Unlimited
Commentary
The Court has the discretion to impose a number of penalties for the charge of "drive whilst suspended". It is important to note that if you plead guilty (or are found guilty by the Court) the Court still has the discretion not to record a conviction against you. This is called a section 10 dismissal of the charge whereby you are found guilty but not convicted. If you are not convicted, then you cannot be penalised.
The Court will consider several factors in determining whether you are an appropriate candidate for a section 10 dismissal such as your driving record, your good character, your need for a licence, your early plea of guilty and your reason for driving.
In determining any penalty or period of disqualification to be imposed on a person for driving whilst suspended due to non-payment of fines a Court must also take into account the effect the penalty or period of disqualification will have on the person’s employment and the person’s ability to pay the outstanding fine that caused the person’s driver's licence to be suspended.
If you plead guilty (or are found guilty by the Court) and the Court does not consider it appropriate to exercise its discretion to deal with the matter pursuant to section 10, the Court must at least impose an automatic/minimum disqualification period. The Court also has the discretion to impose fines, a gaol term, community service orders or a good behaviour bond.
Defences
It is important to first determine whether the driver's excuse for driving may amount to a defence to the charge. Our lawyers have experience determining whether a defence exists to the charge of drive whilst suspended and more importantly, the chances of such a defence succeeding and are able to defend you in Court should you decide to plead "not guilty". An obvious defence is that you were not driving, where you instruct us to force the police to prove identity of the driver; or, where it is proved that you were in the driver's seat, to force the police to prove that you were actually driving at the time.
Another way to defend allegations of drive whilst suspended is on the basis of you having held and honest and reasonable mistaken belief that you were entitled to drive. Once the issue is able to be raised on the evidence, the prosecution is then required to persuade the Court that an honest and reasonable mistake did not occur. Although it is easy to raise this defence, it often does not prove successful. A typical scenario is where someone argues that they did not receive a notice of suspension, informing them that they were not allowed to drive. Even if it is accepted by the Court that prosecution cannot prove that the belief was an honest one, it is usually on the second limb - whether the belief was reasonably held that accused person fails.
If after we assess your case you instruct us that you wish to proceed with a plea of "guilty", then we have the experience to represent you on a guilty plea and present a plea in mitigation of sentence in order to help you achieve the best possible outcome.
If you have been charged with drive whilst suspended and require legal assistance, our experts at Prime Lawyers - Traffic Law Division can help. We have been representing clients charged with driving while suspended NSW wide for many years and appear before most Local Courts. Contact us to make an appointment with a traffic lawyer at your nearest Prime Lawyers office.
Get expert advice from one of our Traffic Lawyers Parramatta, Sydney, Chatswood, Sutherland or Wollongong today.
Second or Subsequent Offence - Drive Disqualified or Suspended
With most serious driving offences, where someone is considered a repeat offender, the law automatically increases the penalties for the offence. More specifically and in most circumstances, if someone has previously been convicted of a serious offence within the period of 5 years leading up to the conviction for the new offence, the penalties and disqualification periods increase. But what does this mean and how does it apply to charges of driving whilst disqualified and driving whilst suspended?
The term "second or subsequent offence" is defined in section 9 of the Road Transport Act 2013 and applies to the offences of drive whilst disqualified and drive whilst suspended. In summary, the law holds that, where a person is convicted of a drive disqualified/suspended offence ("the new offence"), it is to be considered a second or subsequent offence if:
a) within a period of 5 years prior to the conviction for the new offence the person has also been convicted of a previous offence being:
i) a drive disqualified/suspended/cancelled or driver never licensed offence; or
ii) a major offence, and
b) the new offence and previous offence occurred on different occasions.
A "major offence" includes: - All drink driving offences - All drug driving offences - All dangerous driving offences - Any offence where a vehicle is used to cause death or grievous bodily harm - Menacing driving - Predatory driving - Police pursuit - Failing to stop and assist after being involved in an impact that causes injury or death
An obvious example that would fall into the above category is where someone is convicted of a drink driving offence and is disqualified for a set period. Sometime later, during the period of disqualification, the disqualified driver is caught driving, charged with drive whilst disqualified and is again convicted by the Court for the offence of driving whilst disqualified. Upon conviction, the drive whilst disqualified offence becomes a "second offence" and the driver now automatically faces an automatic and minimum period of disqualification of 2 years and a maximum penalty of $5,500 and 2 years' imprisonment. Had the drive whilst disqualified offence not been a second offence, then the driver would be liable to an automatic and minimum period of disqualification of 12 months and a maximum penalty of $2,200 and 18 months' imprisonment.
In the above example, although the driver has committed his or her first ever drive whilst disqualified offence, it is a "second offence" for the purpose of the legislation and more importantly, for the purpose of the mandatory minimum disqualification period. In fact, the state of the law means that the great majority of drive whilst disqualified offences will be "second" offences, because most drivers are disqualified by Courts as a result of having committed a "major offence".
With drive whilst suspended charges, it is not necessary that someone has committed a major offence to receive a suspension. For example, a driver's licence may be suspended as the result of an exceed speed offence, accumulation of demerit points or for non-payment of fines. However, many drivers are also immediately suspended by police for the commission of a mid range or high range drink driving offence, for example. Under these circumstances, a person can well see themselves convicted of a "second or subsequent offence", depending on several factors.
Commentary
Although it is understandable that for many serious driving offences, where the offender has been convicted of one or more serious driving offences in a short period, the person should receive a harsher punishment than a person who has committed only their first major offence, when it comes to the offence of drive whilst disqualified, an unusual situation is created where the typical offender for that category of offence automatically receives the harsher punishment. The only time that a person convicted of a drive whilst disqualified charge will not be treated as a second time offender for the purpose of the increase in the automatic disqualification period and the penalties, is as follows:
- Where the person was not disqualified as a result of a previous major offence - Where the person was disqualified as a result of a previous major offence, but was disqualified for a period of more than 5 years and the new offence was committed after the 5 year period - Where the person is disqualified as a result of an habitual offender declaration and had not been convicted of a major offence in the previous 5 years
The above scenarios are not where the typical offender lies. For that reason, it is important to advise all clients who are convicted of any major driving offence that if they drive during the disqualification period for that offence, they will be treated as a second time offender and will be liable for a minimum of 2 years' disqualification.
It is argued that the law is harsh when dealing with the charge of drive whilst disqualified. It takes someone to have a good knowledge of the road transport legislation to understand that most first time offenders for the charge of drive whilst disqualified will actually be treated as second time offenders. It may seem particularly harsh when one considers that the major offence that is taken into account to make the drive whilst disqualified charge a second offence is the very offence that leads to the disqualification in the first place.
With most drive whilst suspended charges, the offender can be treated as a first time offender. Even in circumstances where someone has committed a major offence (such as drink driving), has been suspended by police and then drives whilst suspended before the major offence is dealt with by the Court, a slight anomaly can exist that allows the offender to be treated as a first time offender. This anomaly also arises if a driver commits any two major offences before the first major offence is finalised by the Court.
A plain reading of the definition of "second or subsequent" offence makes it clear that a new offence is to be considered a second or subsequent offence if the person was already convicted for the previous offence before being convicted for the the new offence. This means that, if both offences (although committed on separate occasions) are dealt with by the Court at the same time and the driver is convicted for both of them at the same time, neither of them are to be considered second or subsequent offences. This means that the mandatory minimum disqualification period is not increase and that the Court is not bound by legislation to increase the penalties. Some Courts argue that the definition should not be rad that way and that as long as the offences arose out of different incidents, the second offence is to be considered a second offence. It must be noted, in any event, that the Court is not limited in the amount the disqualification period/s can be increased and therefore, in practice, it may not actually matter whether one of the offences is technically and by law considered a second offence or not.
Finally, for a second or subsequent offence to exist, the offences must be committed on different occasions. If someone, for example, is charged with a drink driving offence while they are suspended and therefore, also charged with drive whilst suspended, both offences will be dealt with as first offences.
If you have been charged with drive whilst disqualified or suspended, particularly where you have also been charged with other offences, our experts at Prime Lawyers - Traffic Law Division can help. Contact us to make an appointment with a traffic lawyer at your nearest Prime Lawyers office.
We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.
A member of our legal team will contact you as soon as possible.
We will endeavour to make this time available to you, however it is possible that your prefered time is already taken.
We will contact you shortly to confirm your appointment time or to arrange another suitable time for you to attend. Please ensure your contact details are correct and please wait until you hear from us to confirm your appointment has been booked.
Tell us about your legal matter so we can provide you with a no obligation quote or details of our costs to help you.
