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Driving Whilst Disqualified

 
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  • Section 54(1) Road Transport Act 2013

The offence of driving whilst disqualified covers:

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

PENALTIES

The maximum penalty for drive whilst disqualified is a fine of $3,300 and /or imprisonment for 18 months.

If the offence is a second or subsequent offence, the maximum penalties increase to a fine of $5,500 and / or imprisonment for 2 years.

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.

If the offence is the third major offence in the past 5 years, a conviction could mean that the RTA will declare you a Habitual Traffic Offender and impose an additional 5 year disqualification on top of any disqualification a court orders. Select here for more information: HABITUAL TRAFFIC OFFENDER DECLARATION.

THE DISQUALIFICATION

The offence carries an automatic disqualification upon conviction of 12 months (and 2 years for a second or subsequent offence). Upon conviction, there is no discretion to impose a shorter period of disqualification.

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. For more information in relation to Section 10 please click here: SECTION 10.

Should the court convict and disqualify you, the disqualification will commence after the current disqualification has ended. So for example, if an offender is 4 months into a 6 month disqualification for an earlier offence when they are convicted of driving whilst disqualified, and the court imposes a 12 month disqualification, the 12 month disqualification will only start at the end of the 6 month disqualification.

DEFENCES

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

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 disqualified may be if the defendant was unaware that a conviction was entered in their absence and they continued to drive even after their licence was disqualified by the court.

LIKELY PENALTY

The offence of drive whilst disqualified involves the offender disobeying an order of a court. Additionally, it carries a maximum penalty of 18 months imprisonment which means that the offence is one of the more serious traffic related criminal offences. As a consequence, the courts treat this offence seriously.

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

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.

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