Drive Whilst Cancelled
It is an offence under section 32(3) of the Road Transport (Driver Licensing) Act 1999 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 drives and their licence has been cancelled by any court or law, or their application for a driver licence has been refused. It is also an offence under this section for a person to apply for a driver licence and fail to mention a prior licence cancellation or refusal.
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 ($8000), and the maximum term of imprisonment is 6 months. The automatic disqualification period is 12 months and there is no maximum disqualification period.
For a repeat offence within five years: the maximum fine is 100 penalty units ($16,000), and the maximum term of imprisonment is one year. The automatic disqualification period is 24 months and there is no maximum disqualification period.
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 2005 allows a court the discretion not to impose a conviction.
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 Access Canberra or a court. 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 Access Canberra 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.
For advice or representation in any legal matter, please contact Armstrong Legal.