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Driving Whilst Cancelled

Streeton Lawyers Banner GeneralTHE OFFENCE

Driving whilst cancelled is an offence under section 54(4) of the Road Transport Act 2013. However, if your licence was cancelled due to non payment of fines, you will be charged under section 54(5)(b) of the Road Transport Act.

The offence of driving whilst cancelled covers:

  • those who drive a motor vehicle on a road or road related area whilst their licence is cancelled, and
  • those who make an application for a drivers licence whilst their licence is cancelled and state their name falsely or fail to mention that their licence is cancelled.

DRIVING WHILST CANCELLED PENALTIES

Section 54(4) – driving whilst cancelled (other than for non-payment of fines)

Maximum Fine Maximum Imprisonment Automatic Disqualification Minimum Disqualification
       
First Offence $3,300 6 months 6 months 3 months
 
Second Offence $5,500 12 months 12 months 6 months

 

Section 54(5)(b) – driving whilst cancelled due to non-payment of fines

Maximum Fine Maximum Imprisonment Automatic Disqualification Minimum Disqualification
       
First Offence $3,300 N/A 3 months 1 month
 
Second Offence $5,500 6 months 12 months 3 months

What is a “second or subsequent offence”?

A second or subsequent offence means that the offender has either been convicted of a previous offence of drive whilst disqualified within the past 5 years, or another earlier “major offence”, for example drink driving, in the past 5 years. As the offence of drive whilst disqualified requires some disqualification to have already been ordered by a court, it is very common for this offence to constitute a second or subsequent offence.

DEFENCES

It is a defence to a charge of driving whilst cancelled if the defendant can establish that they were under an honest and reasonable mistaken belief that their licence was not cancelled.

There are three general components to this:

  • The belief must be an honest belief (this is a subjective assessment)
  • It must have been reasonable in the circumstances for the defendant to hold that belief (this is an objective assessment)
  • The belief must relate to a mistake of fact and not law

An example of an honest and reasonable mistaken belief for a charge or drive whilst cancelled may be if the defendant was unaware that there licence had been cancelled and they continued to drive even after their licence was cancelled.

Again, it is important to emphasise that the belief that the licence was not cancelled must have been reasonable in all of the circumstances. Many people are caught driving whilst their licence is cancelled because they fail to reapply for their licence at the RMS once their disqualification period ends. However, if you received legal advice, or a magistrate informed you at the time of sentence, that after you serve your disqualification period you must attend the RMS and reapply for your licence, then it is unlikely a defence of honest and reasonable mistake will be successful.

WILL I LOSE MY LICENCE?

Upon conviction, your licence will be disqualified. There is no discretion for the magistrate to impose a period of disqualification less than the minimum period.

The only way to avoid a disqualification after being found guilty, or pleading guilty, is if the court deals with your matter by way of non-conviction. As with any offence, even after a finding of guilt a court can still decide not to record a conviction under  SECTION 10 of the Crimes (Sentencing Procedure) Act 1999.

Should the court convict and disqualify you, the disqualification will commence at the time of conviction unless the court orders that it begins on a later day specified by the court.

WILL THE COURT TAKE INTO ACCOUNT MY NEED FOR A LICENCE?

Your need for a licence is a relevant factor in the sentencing process, and those who will suffer hardship should be in a position to provide evidence to the court proving that hardship. The court is also required to take into account the need to deter other members of the community from committing the same offence, and in many cases, the need to deter individual offenders from committing the same offence again.

Each offender will be sentenced in accordance with all of their relevant circumstances.

For detailed advice about your matter, contact one of our traffic law specialists for a free initial consultation.

WILL I GET A SECTION 10?

As with any offence, even after a finding of guilt a court can still decide not to record a conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999.

A section 10 is not always appropriate or attainable even if an offender has no prior criminal history. This is because a magistrate is required to take into account the following factors when considering sentencing an offender under section 10:

  • The person’s character, antecedents, age, health and mental condition;
  • The trivial nature of the offence;
  • The extenuating circumstances in which the offence was committed; and
  • Any other matter that the court thinks proper to consider.

However, it is important to note that this list is not exhaustive, and simply ticking each box will not guarantee an offender receives a section 10.

Some of the additional factors the court will consider when sentencing you, and when deciding whether an order under Section 10 Crimes (Sentencing Procedure) Act 1999 is appropriate, include:

  • The reason you were driving at the time of the offence
  • Your traffic record
  • Whether you have been convicted of any other offences, and what those offences are
  • Your remorse and contrition, and an attendance at the Traffic Offenders Program

For the full range of penalties that can be imposed, see our Sentencing Options page.

For FREE initial advice about the prospects of your matter, contact one of our criminal law specialists.

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