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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 While Cancelled or Suspended


The offences of drive whilst cancelled and drive while suspended are committed by a person who drives a motor vehicle on a public road after their licence has been cancelled or suspended by Transport for NSW.

Regardless of how bad your traffic record is, the court has a 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 10 of the Crimes (Sentencing Procedure) Act 1999 allows a court that finds a person guilty of an offence the discretion not to impose a conviction against them.

If the court decides to convict you of the offence, it will disqualify you for the automatic disqualification period unless it orders a shorter or longer period of disqualification (but not shorter than the minimum disqualification period).

Likely penalties

The penalties are the same for the offences of drive whilst cancelled and drive while suspended

1st offence

  • A maximum fine of $3300
  • An automatic disqualification period of 6 months
  • A minimum disqualification period of 3 months
  • A maximum jail term of 6 months

2nd or subsequent offence within 5 years

  • A maximum fine of $3300
  • An automatic disqualification period of 12 months
  • A minimum disqualification period of 6 months
  • A maximum jail term of 12 months

Possible defences – drive whilst cancelled

The most common defence 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 either cancelled or suspended because you were not notified by Transport for NSW. To successfully raise the defence you have to prove that your belief that you were not cancelled or suspended was both honest and reasonably held.

It is normally easy to prove that you were not notified by Transport for NSW that your licence was cancelled or suspended. However, your belief that you were not cancelled or suspended must be reasonable. Knowing that you had exceeded your demerit points or that you had outstanding fines may prove that your belief was not reasonable.

This defence is often successful as the courts regularly find errors made by Transport for NSW.

Case study – drive while cancelled

This client had a less than favourable driving record that was marked by eight driving offences that attracted 26 demerit points. These had taken place over two and a half years. His licence had been cancelled after the court imposed a disqualification period for the offence of driving while suspended. After the court disqualification had ended, our client’s licence remained cancelled for a period of six months due to the large number of demerit points he had accumulated. Our client was caught driving to work three months before he was entitled to apply for a new licence. He did not have a good excuse for driving.

He was facing serious penalties. Because he was convicted for driving while suspended in the previous year, the present charge was looked at as a second or subsequent offence. His only chance of escaping the harsh mandatory two-year disqualification period was to avoid conviction via a Section 10.

Our client pleaded guilty and received a fantastic outcome.

We highlighted to the court features that allowed the court to deal with our client in a lenient way. He had held a licence in another jurisdiction for over ten years and had not received any court convictions or traffic infringements during this time. He was a highly successful professional man who had overcome significant adversity having grown up in a third  developing country. Though he had a previous court conviction, this had occurred in the circumstances where he attended court without a solicitor and would have avoided the conviction if he had had legal representation.

The magistrate accepted our submissions and found the offence proved but dismissed the charge without proceeding to conviction under Section 10 (1)(a) of the Crimes (Sentencing Procedure) Act 1999.

Two weeks after the court decided the case our client was able to obtain his licence. It was not possible to achieve a better result.

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

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