Drive Whilst Disqualified


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

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 drivers licence;
  3. Except in accordance with a restricted licence.

It is also an offence under this section for a person to apply for a drivers 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, 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.

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 the RTA. 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 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, however, the court may extend that period of disqualification. It is important to note that the court ordered disqualification period will commence after the existing period of suspension has expired.

If you have been convicted of an offence under section 31A:-

Generally, the starting point for a magistrate at sentencing is to record a conviction and impose a fine. The maximum penalty for an offence under this section is 20 penalty units.

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.

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.

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