Drive Whilst Cancelled
It is an offence under section 32(3) of the Road Transport (Driver Licensing) Act to drive whilst your licence is cancelled.
To convict you of an offence under this section, the Police must prove beyond reasonable doubt that you:
- Drove a motor vehicle on a road or road related area;
- Whilst your application for an Australian driver licence is refused in any jurisdiction or your Australian driver licence is cancelled;
- Without having subsequently obtained an Australian driver licence.
The offence of “drive whilst cancelled” is committed when a person whose Australian drivers licence has been cancelled by any Court or law, or has been refused an application for an Australian drivers licence drives a motor vehicle on a road or road related area without having obtained an Australian driver licence.
It is also an offence under this section for a person to apply for a drivers licence and fail to mention the refusal of the previous application or cancellation of licence in the subsequent application.
Generally, the starting point for a magistrate at sentencing is to record a conviction, impose a fine and a disqualification period. Penalties will depend on whether or not the offence is a first or a repeat offence.
For a first offence: the maximum fine is 50 penalty units, and the maximum term of imprisonment is 6 months. The automatic disqualification period is 12 months and there is no maximum disqualification period restricting the Magistrate.
For a repeat offence within five years: the maximum fine is 100 penalty units, and the maximum term of imprisonment is one year. The automatic disqualification period is 24 months and there is no maximum disqualification period restricting the Magistrate.
Regardless of how bad your traffic record is the court has discretion whether to record a conviction against you for the offence. If the court decides not to record a conviction, you will not be disqualified from driving. Section 17 of the Crimes (Sentencing) Act allows a court that finds a person guilty of an offence the discretion not to impose a conviction against them.
The most common defence to this offence is the defence of honest and reasonable mistake of fact. You must give evidence that you were unaware at the time of driving that you were disqualified because you were not notified by the RTA or the Court. In order to successfully raise the defence you must prove that your belief that you were not suspended was both honest and reasonably held.
Whilst it is normally easy to prove that you were not notified by the RTA that your licence was cancelled, it is more difficult to show that your belief is a reasonable one. Knowing that you had (or that it was possible that you had) exceeded your demerit points or that you had outstanding fines may show that your belief was not reasonable.
WHERE TO NEXT?
In NSW, traffic offences are treated seriously. Therefore, it is important to get competent legal advice as early as possible, whether you have received a penalty notice, had your licence suspended or been charged with a serious offence. Our lawyers are highly experienced and understand the difficulties you face without a licence. We can guide you through the process while dealing with the various authorities related to your matter.