A charge may arise where a person drives while disqualified following a previous drink driving offence, dangerous driving offence, excessive speeding offence or another offence resulting in licence disqualification.

The consequences can be particularly serious where a person has previously been convicted of driving while disqualified or has other relevant driving offences within the preceding five years.

At Chidiac & Associates, we provide experienced criminal defence representation to clients facing driving while disqualified charges throughout Sydney and New South Wales. We carefully examine the basis of the disqualification, whether the person was aware of the disqualification and the circumstances surrounding the alleged driving.

What is Driving While Disqualified?

The offence is contained in section 54(1) of the Road Transport Act 2013 (NSW).

A person who is disqualified from holding or obtaining a driver licence must not:

• drive a motor vehicle on a road during the period of disqualification; or
• make an application for a driver licence during the period of disqualification while falsely stating their name or failing to disclose the disqualification.

The offence applies regardless of the reason for which the person was disqualified.

For example, a person may be charged with driving while disqualified after receiving a disqualification for:

• drink driving;
• drug driving;
• dangerous driving;
• excessive speeding;
• negligent driving;
• a previous driving while disqualified offence; or
• another offence resulting in licence disqualification.

The current legislation provides the applicable maximum penalties for the offence.

Elements of Driving While Disqualified

To establish a charge under section 54(1), the Prosecution must prove the relevant elements beyond reasonable doubt.

1. The Accused Was Driving a Motor Vehicle

The Prosecution must establish that the accused was driving a motor vehicle.

This may be established through:

• police observations;
• CCTV;
• dashcam footage;
• registration information;
• admissions;
• eyewitness evidence; or
• other identification evidence.

Where there is an issue concerning who was driving the vehicle, this may be an important aspect of the defence.

2. The Vehicle Was Driven on a Road

The Prosecution must establish that the vehicle was driven on a road.

The circumstances and location of the alleged driving may therefore be relevant.

3. The Accused Was Disqualified

The Prosecution must establish that the accused was disqualified from holding or obtaining a driver licence at the time of the alleged driving.

This may involve evidence concerning:

• the original offence;
• the court order imposing disqualification;
• the commencement and expiry dates of the disqualification;
• subsequent licence status; and
• notices or other records concerning the disqualification.

4. The Driving Occurred During the Disqualification Period

The Prosecution must establish that the accused drove during the period in which they were disqualified.

The precise commencement and expiry dates of the disqualification can therefore be important.

What Are the Penalties for Driving While Disqualified?

Under section 54(1) of the Road Transport Act 2013, the maximum penalty for a first offence is:

• 30 penalty units;
• 6 months' imprisonment; or
• both.

For a second or subsequent offence, the maximum penalty increases to:

• 50 penalty units;
• 12 months' imprisonment; or
• both.

The offence also carries a mandatory/default period of further licence disqualification under section 205A.

First Offence

For a first offence under section 54(1):

• Maximum fine: 30 penalty units
• Maximum imprisonment: 6 months
• Automatic/default disqualification: 6 months
• Minimum disqualification: 3 months

The court has the power to order a shorter or longer period of disqualification, but cannot reduce it below the statutory minimum of three months.

Second or Subsequent Offence

Where the person has been convicted of a relevant previous offence within the preceding five years, the consequences increase.

For a second or subsequent offence:

• Maximum fine: 50 penalty units
• Maximum imprisonment: 12 months
• Automatic/default disqualification: 12 months
• Minimum disqualification: 6 months

Again, the court may impose a shorter or longer period than the default period, subject to the statutory minimum.

Driving While Disqualified - Penalties at a Glance

The further disqualification is in addition to the penalty imposed for the offence.

What Does "Automatic Disqualification" Mean?

The automatic or default disqualification is the period that applies unless the court makes an order imposing a different period.

Importantly, the automatic period is not necessarily the final period of disqualification.

For a first offence, the court can reduce the six-month default period to a minimum of:

3 months

For a second or subsequent offence, the 12-month default period can be reduced to a minimum of:

6 months

The court can also impose a period longer than the default period where appropriate.

This distinction is important when preparing sentencing submissions because the court should be invited to consider the appropriate period of disqualification having regard to the circumstances of the individual case.

What Counts as a Previous Offence?

For the purposes of determining whether the offence is a first or subsequent offence, the legislation looks at relevant previous offending within the applicable five-year period.

The relevant history can include:

• a previous offence under section 54(1);
• certain other driving while suspended or disqualified offences;
• a major offence; or
• certain alcohol or other drug-related driving offences dealt with by penalty notice.

Accordingly, a person does not necessarily need to have a previous conviction for driving while disqualified for the current offence to attract the more serious second-offence consequences.

What If I Did Not Know I Was Disqualified?

A person may believe that they were entitled to drive because:

• they did not receive a court notice;
• they misunderstood the date on which the disqualification commenced;
• they believed the disqualification had expired;
• they believed their licence had been reinstated;
• they believed they had successfully applied for a new licence; or
• they were unaware that a disqualification imposed in another Australian jurisdiction applied in NSW.

The circumstances surrounding the person's knowledge and the status of their licence may therefore be relevant.

However, simply believing that you were entitled to drive does not automatically provide a defence. The precise circumstances and applicable legislation need to be examined.

Disqualification Imposed in Another Australian State

A person cannot necessarily avoid a NSW disqualification by relying upon a licence or disqualification issued in another Australian jurisdiction.

Under section 207(2) of the Road Transport Act 2013, a disqualification to hold a driver licence in another Australian jurisdiction operates as a disqualification in NSW.

This can be particularly important for people who move between NSW and another state or territory.

Driving While Disqualified After a Drink Driving Offence

Driving while disqualified frequently arises following a previous drink driving offence.

For example, a person may receive a period of disqualification following:

• low range PCA;
• mid range PCA;
• high range PCA;
• driving with a prescribed illicit drug; or
• another alcohol or drug-related driving offence.

If the person subsequently drives during the disqualification period, they may face a separate charge under section 54(1).

The new offence is separate from the original drink driving offence and may result in a further period of disqualification.

Driving While Disqualified After a Dangerous Driving Offence

A person may also be disqualified following a serious dangerous driving offence.

Driving during that period can result in a further criminal Prosecution.

Where the original offence was particularly serious, the court may consider the circumstances of the original offending and the fact that the person chose to drive despite the disqualification when determining the appropriate sentence.

Can I Defend a Driving While Disqualified Charge?

Being charged with driving while disqualified does not mean that you are guilty.

The Prosecution must prove the relevant elements beyond reasonable doubt.

Depending upon the circumstances, possible issues may include:

• the accused was not driving the vehicle;
• the vehicle was not being driven on a road;
• the accused was not disqualified at the relevant time;
• the disqualification period had expired;
• the commencement date of the disqualification was incorrectly calculated;
• the relevant disqualification was subsequently varied, quashed or otherwise affected;
• the Prosecution cannot establish the identity of the driver;
• the evidence concerning the accused's driving is unreliable; or
• the Prosecution cannot establish the offence beyond reasonable doubt.

Each matter must be assessed according to its individual facts and evidence.

Licence Status and Notices

It is important to establish precisely what happened to the person's licence.

This may involve examining:

• the original court orders;
• RMS/Transport for NSW records;
• licence suspension notices;
• disqualification notices;
• previous convictions;
• traffic history;
• licence applications;
• correspondence from Transport for NSW; and
• the dates on which the relevant orders commenced and expired.

Errors concerning dates can be particularly important because a charge may depend upon whether the alleged driving occurred during the actual period of disqualification.

Sentencing for Driving While Disqualified

Where a person is pleading guilty or has been found guilty, the court will consider the circumstances of the offending and the offender.

Relevant sentencing considerations may include:

• the length of time the person had been disqualified;
• why the person was originally disqualified;
• how far the person drove;
• the reason for driving;
• whether the driving was otherwise lawful and uneventful;
• whether the person was stopped by police or involved in an accident;
• whether passengers were present;
• the person's prior driving history;
• previous convictions for driving while disqualified;
• employment and family responsibilities;
• prospects of rehabilitation;
• remorse;
• the person's personal circumstances; and
• whether an early guilty plea was entered.

The circumstances in which the person chose to drive can be particularly important.

Exceptional or Compelling Circumstances

In appropriate cases, the circumstances surrounding the decision to drive may provide important context for sentencing.

For example, a person may have driven because of:

• an unexpected emergency;
• a serious family situation;
• employment circumstances;
• a medical emergency;
• the need to obtain urgent assistance; or
• another exceptional circumstance.

The existence of such circumstances does not automatically excuse the offence. However, they may be relevant to the exercise of the court's sentencing discretion.

Further Disqualification

A further period of disqualification is an important consequence of a conviction for driving while disqualified.

For a first offence, the default period is 6 months, with a statutory minimum of 3 months.

For a second or subsequent offence, the default period is 12 months, with a statutory minimum of 6 months.

The court can order a longer period where appropriate.

Where a person has already served a period of suspension for the offence, section 206B requires the court to take that period of suspension into account when deciding the period of disqualification in circumstances to which that provision applies.

What Happens When the Disqualification Ends?

A person should not simply assume that they can drive as soon as the disqualification period expires.

The disqualification operates to prevent the person from holding or obtaining a driver licence during the relevant period. After the period expires, the person may need to apply for a new licence before driving again.

The NSW Judicial Commission specifically notes that a new licence must be applied for before a person drives again at the expiry of a disqualification.

Evidence in Driving While Disqualified Cases

The Prosecution may rely upon:

• police observations;
• CCTV footage;
• dashcam footage;
• registration information;
• photographs;
• body-worn camera footage;
• admissions;
• eyewitness evidence;
• Transport for NSW records;
• licence records;
• court orders; and
• correspondence concerning the person's licence.

At Chidiac & Associates, we carefully examine both the evidence concerning the alleged driving and the evidence establishing the person's disqualification.

How We Can Help

A driving while disqualified charge requires careful consideration of both the alleged driving and the legal status of the person's licence.

At Chidiac & Associates, we provide:

• confidential advice about your charge;
• examination of your traffic and driving history;
• analysis of licence and disqualification records;
• advice concerning the applicable penalty;
• representation at court;
• advice concerning guilty pleas;
• preparation of sentencing submissions;
• submissions concerning licence disqualification;
• negotiations with prosecutors where appropriate; and
• representation in defended proceedings.

Our approach is built on thorough preparation, practical advice and strong courtroom advocacy.

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