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This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (state and federal industrial tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Drive Whilst Disqualified


It is an offence under section 32(1) of the Road Transport (Driver Licensing) Act 1999 to drive whilst disqualified.

Proving the offence

To convict you of an offence under this section, the police must prove beyond reasonable doubt that you:

  1. drove a motor vehicle on a road or road related area;
  2. whilst being disqualified from holding or obtaining an Australian driver licence;
  3. except in accordance with a restricted licence.

It is also an offence under this section for a person to apply for a driver licence within the period of disqualification and fail to mention the disqualification in that application.

Penalties

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 allows a court the discretion not to impose a conviction.

Possible Defences

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 Access Canberra. You must prove that your belief that you were not suspended was both honest and reasonably held.

It is normally easy to prove that you were not notified that your licence was disqualified; it is more difficult to show that your belief is a reasonable one. For example, knowing that you had (or that it was possible that you had) an order to attend court for a traffic offence may show that your belief was not reasonable.

Reason for suspension Automatic disqualification period
Non-payment of fines 1 month
Demerit points 3 months
Other (first offender) 3 months
Other (repeat offender within 5 years) 12 months

The automatic period of disqualification is the minimum period of disqualification that the court can impose if it convicts you of the offence. The court can extend that ban. It is important to note that the court-ordered disqualification period starts after an existing period of suspension has expired.

Conviction

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.

For advice or representation in any legal matter, please contact Armstrong Legal.

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