In NSW, driving while disqualified is an offence under section 54(1)(a) of the Road Transport Act 2013 (NSW) to drive during a period of disqualification and under section 54(3)(a) to drive whilst suspended. Both offences carry automatic disqualification periods and in the most serious of cases can result in terms of imprisonment.
What constitutes Disqualified Driving?
Under section 54(1)(a) the offence of disqualified driving is committed when a person who has been disqualified from driving by a court drives a motor vehicle on a public road or road related area during the period of disqualification.
A licence suspension is different to disqualification as it can only be imposed by police or the RMS. At the end of the suspension period a person does not need to reapply for their license. The offence of driving whilst suspended is committed when a person, whose licence is currently suspended, drives a motor vehicle on a public road during the period of suspension.
What the Police must Prove
For a person to be found guilty of the offence of driving whilst disqualified, the police must prove that the person:
- Was driving a vehicle on a road or road related area; and
- Was disqualified from driving at the time.
Possible defences for a Disqualified Driving charge
It is always a defence where you believe that an essential element of an offence can not be proved by the prosecution some specific defences to this type of offence include:
HONEST AND REASONABLE MISTAKE OF FACT
For both the offences of drive whilst disqualified and drive whilst suspended the most common defence is one of honest and reasonable mistake of fact. For this defence to be accepted you will have to provide some evidentiary basis for it to be raised as an issue. It will then be for the police to prove that you did not hold an honest and reasonable belief that your licence was not suspended or disqualified.
If the court is not satisfied that you were not labouring under an honest and reasonable mistake of fact then you will be found not guilty of the offence.
Penalties for Disqualified Driving in NSW
If a person is found guilty of the offence of drive disqualified or drive suspended there are a range of sentencing options available to the court.
The maximum penalty for a first offence against this section is:
- $3,300 fine,
- 6 months imprisonment,
- Or both.
For a second offence the penalty is:
- $5,500 fine;
- 6 months imprisonment;
- Or both.
For first offenders the court may sentence an offender to be of good behaviour for a period specified by the court. This is done by way of a Conditional Release Order. The court will also have the option after taking into account all relevant circumstances to not record a conviction against the offender.
If the court does decide to record a conviction they must impose a mandatory license disqualification period.
For a first offence
- The automatic disqualification period is 6 months with a minimum period of 3 months.
For a second offence
- The automatic disqualification period is 12 months with the minimum period being 6 months.
The Court may also impose any of the following sentences:
Conditional Release Order
Conditional Release Orders (CRO) are often used to deal with first time offenders and less serious offences where the offender is unlikely to present a risk to the community.
A CRO is an order of the court that you are to be of good behaviour (not commit any other offences) for a specific period of time.
CROs can include conditions such as drug and alcohol abstention, requirements to attend programs, non-association requirements or place restrictions where appropriate. CROs can also have a supervision condition. Courts have discretion to not impose a conviction on a CRO, if they consider it appropriate. CROs can be for a maximum period of 2 years.
The CRO acts as a warning and provides the option to divert less serious offenders out of the criminal justice system, freeing up resources to deal with the offenders who cause the greatest concern to the community. If an offender commits any further offences while on a CRO, subsequent penalties may be more severe.
Community Corrections Order
Community Correction Order’s (CCO) are used to punish offenders for offences that do not warrant imprisonment or an Intensive Corrections Order, but are too serious to be dealt with by a fine or lower level penalty.
CCO’s are a flexible sentence that the court can tailor to reflect the nature of the offender and the offence. The court can select from the range of conditions, such as supervision by Community Corrections Officers, community service work (up to 500 hours) and curfews, to hold offenders to account and reduce their risk of reoffending. CCOs can be imposed for a period of up to three years.
Intensive Corrections Order
An Intensive Corrections Order (ICO) is a custodial sentence that the court decides can be served in the community. Community safety is the court’s paramount consideration when making this decision. ICO’s can be for a maximum of 2 years for single offences and up to 3 years where there are multiple offences.
Supervision is a mandatory condition of an ICO. Further the Courts must impose at least one additional condition. Conditions that can be included in an ICO are: home detention, electronic monitoring, curfews, community service work (up to 750 hours), alcohol/drug bans, place restrictions, or non-association requirements. Offenders may also be required to participate in programs that target the causes of their behaviour.
The ICO is the most serious sentence that an offender can serve in the community. ICOs are not be available for offenders who have been convicted of murder, manslaughter, sexual assault, any sexual offence against a child, offences involving discharge of a firearm, terrorism offences, breaches of serious crime prevention orders, or breaches of public safety orders.
A person convicted of a domestic violence offence can only be sentenced to an ICO if the court is satisfied that the victim or likely co-residents can be adequately protected. For example, a domestic violence offender is not eligible for an ICO with a home detention condition if they are intending to reside with the victim.
Full Time imprisonment
Full Time imprisonment is the most serious penalty a court can impose. The sentence involves a period of time that will be spent inside an NSW correctional centre. When imposing a full time custodial sentence in most circumstances the court will apply a Non-Parole period, this is the minimum time that must be spent in a correctional centre. After the expiration of the Non-Parole period you will be eligible for release with the remainder of the sentence to be spent in the community on parole.
Book a Free Consultation for a Disqualified Driving charge
Persons convicted of driving offences in NSW account for a large proportion of inmates in NSW correctional centres. What may seem like trivial offences can have serious consequences.
If you or anyone you know has been charged with driving while disqualified or driving while suspended you should contact First Offence Legal and book a free no obligation consultation. Remember you can always make First Offence Legal your First Offence.