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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 Suspended


It is an offence under the Road Transport (Driver Licensing) Act 1999 to drive whilst suspended. Under this Act, there are two sections under which a person can be charged with an offence.

Under section 31A, it is an offence to drive a vehicle in the ACT whilst your right to drive is suspended under an ACT law. Under section 32(2) it is an offence to drive a motor vehicle on a road or road related area when your Australian driver licence has been suspended by a court or law of the ACT or any other jurisdiction, unless under a restricted licence. It is also an offence under this section if a person applies for a licence within their period of suspension and fails to mention the suspension in that application.

Penalties

Under section 32(2)

Generally, the starting point for a magistrate at sentencing is to record a conviction, impose a fine and a disqualification period. For a first offender, the maximum fine is 50 penalty units ($8000), and for a repeat offender the maximum is 100 penalty units ($16,000). It is also open to the magistrate to impose a period of imprisonment, up to 6 months for a first offender or one year for a repeat offender.

If you are convicted of an offence under section 32(2), the automatic period of disqualification depends on the reason for your suspension.

Reason for suspension         Automatic disqualification period
Non-payment of fines         1 month (2 months repeat offender)
Demerit points         2 months (4 months repeat offender)
Any other reason         3 months (12 months repeat offender)

 

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 may lengthen the ban. It is important to note that the court-ordered disqualification period will start after the existing period of suspension has expired.

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 ($3200).

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 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 suspended because you were not notified. 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 suspended; 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.

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