In New South Wales, the consequences depend upon why the person was unlicensed, whether they have previously held a licence and their previous driving history.

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It is particularly important to distinguish between a person who has previously held a driver's licence but is currently unlicensed and a person who has never been licensed. These circumstances are dealt with differently under the Road Transport Act 2013 (NSW).

Accordingly, it is important to establish whether the person has previously held a licence and whether the person falls within the statutory definition of "never licensed".

At Chidiac & Associates, we provide experienced criminal defence representation to clients facing unlicensed driving charges throughout Sydney and New South Wales. We carefully examine the person's licence history, the circumstances of the alleged driving and the applicable penalties.

For a person who has never been licensed, however, section 205A provides for disqualification consequences for a second or subsequent offence.

What is Driving Unlicensed?

For ordinary section 53(1) unlicensed driving, there is no mandatory automatic period of licence disqualification. General disqualification provisions may apply, and the court has discretion in appropriate circumstances.

The principal offence is contained in section 53 of the Road Transport Act 2013 (NSW).

The position is different from offences such as drink driving and driving while disqualified.

Section 53(1) provides that a person must not, unless exempted by the statutory rules:

Is There Automatic Disqualification for Driving Unlicensed?

drive a motor vehicle on a road without being licensed for that purpose.

These are maximum penalties. They do not mean that a person convicted of the offence will automatically receive the maximum fine or imprisonment.

The offence is commonly referred to as driving unlicensed or driving without a licence.

The offence is different from driving while suspended, cancelled or disqualified, which is dealt with separately under section 54.

Driving Unlicensed Penalties at a Glance

What Does "Unlicensed" Mean?

This distinction is important because a person who has never been licensed can face imprisonment for a subsequent offence.

A person may be unlicensed for a number of reasons.

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

For example, they may:

For a second or subsequent offence, the maximum penalty is:

• have never obtained a driver's licence;
• have previously held a licence but allowed it to expire;
• have failed to renew their licence;
• have surrendered their licence;
• have had their licence cancelled;
• have been suspended or disqualified from driving; or
• hold a licence that does not authorise them to drive the particular vehicle.

20 penalty units

Importantly, driving while suspended, cancelled or disqualified is generally a separate offence from ordinary unlicensed driving.

For a first offence, the maximum penalty is:

The precise reason the person was not licensed must therefore be established before determining the appropriate charge and potential penalty.

Penalties for a Never-Licensed Driver

Driving Without a Licence - Section 53(1)

The legislation defines a person as having "never been licensed" for this purpose where they have not held a driver licence, or equivalent licence of any kind in Australia, for at least five years immediately before the offence.

Under section 53(1)(a), a person must not drive a motor vehicle on a road without being licensed for that purpose.

Under section 53(3), a person who has never been licensed must not, unless exempted by the statutory rules, drive a motor vehicle on a road without being licensed for that purpose.

Maximum penalty

A separate and more serious provision applies to a person who has never been licensed.

The maximum penalty is:

Driving When Never Licensed

20 penalty units

The applicable fine and any licence consequences will depend upon the circumstances and the person's driving history.

There is no term of imprisonment specified as the maximum penalty for the ordinary section 53(1) offence.

At the current NSW penalty-unit value, 20 penalty units equates to a substantial monetary penalty.

Minimum and Maximum Disqualification

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Unlike some major driving offences, ordinary unlicensed driving does not have a prescribed automatic disqualification period in the same way as PCA or dangerous driving offences.

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

This means that the question of disqualification must be considered separately from the maximum fine for the offence.

• confidential advice about your charge;
• examination of your Transport for NSW driving history;
• advice concerning whether you were legally entitled to drive;
• advice concerning overseas and interstate licences;
• analysis of the applicable statutory provisions;
• representation at court;
• preparation of sentencing submissions;
• advice concerning potential licence disqualification;
• negotiations with prosecutors where appropriate; and
• representation in defended proceedings.

For a person who has previously held a licence within the preceding five years, the Judicial Commission notes that there is no mandatory disqualification for a second offence of driving without a licence, although discretionary disqualification powers may apply.

At Chidiac & Associates, we provide:

What is the Difference Between Unlicensed and Disqualified Driving?

A driving unlicensed charge requires careful examination of the person's licence history and the precise circumstances of the alleged offence.

The distinction is extremely important.

How We Can Help

Driving unlicensed

These consequences may be relevant to sentencing submissions where properly supported by evidence.

A person drives without holding the appropriate driver's licence.

• travelling between locations;
• transporting equipment;
• visiting clients;
• driving company vehicles; or
• operating commercial vehicles.

This is generally dealt with under:

A person's ability to obtain or maintain employment may depend upon their ability to drive, particularly where their work involves:

Section 53(1) - Road Transport Act 2013 (NSW)

For some people, a conviction can have consequences beyond the immediate fine.

Driving while disqualified

Driving Unlicensed and Employment

A person drives during a period in which they are prohibited from holding or obtaining a driver's licence.

Such circumstances do not automatically provide a defence to the charge. However, where established by evidence, they may be relevant to the court's assessment of the seriousness of the offending and the appropriate penalty.

This is dealt with under:

• a medical emergency;
• an urgent family situation;
• an immediate safety concern;
• an unexpected problem requiring transportation; or
• another exceptional circumstance.

Section 54(1) - Road Transport Act 2013 (NSW)

For example, the person may have been responding to:

Driving while disqualified carries significantly more serious potential penalties, including imprisonment and mandatory/default periods of further disqualification.

There may be circumstances in which a person drove because of an unexpected or urgent situation.

A person should therefore obtain legal advice to ensure that the correct offence has been identified.

Exceptional Circumstances

What About an Expired Licence?

The reason a person drove without a licence can be particularly important in sentencing.

A person who previously held a driver's licence but allowed it to expire may be dealt with differently from a person who has been disqualified from driving.

• why the person was unlicensed;
• whether they had previously held a licence;
• how long they had been unlicensed;
• whether they knew they were unlicensed;
• the reason for driving;
• the distance travelled;
• whether the driving was otherwise safe;
• whether an accident occurred;
• whether passengers were present;
• the person's traffic history;
• previous convictions;
• employment and family responsibilities;
• the person's personal circumstances;
• prospects of rehabilitation; and
• whether an early guilty plea was entered.

The circumstances surrounding the licence expiry, the person's licence history and whether they were otherwise prohibited from driving should be examined.

Relevant considerations may include:

An expired licence does not necessarily mean that the person is guilty of driving while disqualified.

Where a person pleads guilty or is found guilty, the court will consider the circumstances of the offence and the offender.

What About Driving on an Overseas Licence?

Sentencing for Driving Unlicensed

Whether a person is permitted to drive in NSW on an overseas licence depends upon the circumstances and the applicable NSW legislation.

At Chidiac & Associates, we carefully examine the person's complete driving history and the evidence relied upon by the Prosecution.

Issues may include:

• Transport for NSW licence records;
• police observations;
• CCTV footage;
• dashcam footage;
• registration records;
• photographs;
• admissions;
• correspondence concerning the person's licence;
• previous court orders; and
• other evidence concerning the person's licence status.

• whether the overseas licence is valid;
• whether the licence authorises the person to drive the particular vehicle;
• whether the person is ordinarily resident in NSW;
• how long the person has been living in NSW;
• whether the overseas licence has expired; and
• whether the person is otherwise prohibited from driving in NSW.

The Prosecution may rely upon:

The circumstances should be assessed before assuming that an overseas licence is valid for NSW driving purposes.

Evidence in Unlicensed Driving Cases

Elements of Driving Unlicensed

• the accused was not driving the vehicle;
• the vehicle was not being driven on a road;
• the accused held a valid licence;
• the licence authorised the particular driving;
• the person's licence status has been incorrectly recorded;
• the Prosecution has incorrectly characterised the person as never licensed;
• the person was exempt under the applicable statutory rules;
• the relevant licence had not expired or been cancelled;
• the Prosecution evidence is unreliable; or
• the Prosecution cannot establish the offence beyond reasonable doubt.

To establish an offence under section 53, the Prosecution must establish the relevant elements beyond reasonable doubt.

Depending upon the circumstances, possible issues may include:

1. The Accused Was Driving a Motor Vehicle

The Prosecution must establish the relevant elements of the offence beyond reasonable doubt.

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

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

This may be established through:

Defending a Driving Unlicensed Charge

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

The person's licence records may therefore become important evidence.

Where there is a dispute about who was driving, this may be an important issue in the proceedings.

The Prosecution must establish that the accused did not hold a licence authorising them to drive the vehicle in the circumstances.

2. The Vehicle Was Driven on a Road

3. The Accused Was Not Licensed for That Purpose

The Prosecution must establish that the driving occurred on a road.

The precise location of the alleged driving may therefore be relevant.