Drive whilst Disqualified is prosecuted under the Road Safety Act 1986 (Vic)
In Victoria, license disqualification or suspension occurs either by administrative action (Vic Roads) or judicial action (court-ordered penalties resulting from mandatory suspension for speeding, drink/drug driving offences).
The offence of Drive Whilst Disqualified is a summary offence and is prosecuted under Section 30 of the Road Safety Act 1986 (Vic)(RSA)
There was a time when this offence carried a mandatory requirement for imprisonment (2nd offence). Law reform removed the penalty of mandatory imprisonment for a second offence, however, the offence remains one of the more serious offences under the Road Safety Act 1986 (Vic).
In this article we explain the elements, penalties, defences and sentencing outcomes for the offence of Drive whilst disqualified.
Table of Contents
Elements to Drive Whilst Disqualified
The Offence has the following elements:
a person drives a motor vehicle.
on a highway
while their authorisation to drive is either suspended or disqualified
Penalties for Drive Disqualified
Section 30 prescribes a maximum penalty of 240 penalty units or 2 years imprisonment.
Under Section 28 of the Road Safety Act 1986 (Vic), the Court has the discretion to impose a period of license suspension for this offence.
Sentencing Outcomes for Drive Whilst Disqualified
As the offence of Drive whilst disqualified is a summary offence it is most often heard in the Magistrates' Court unless it is uplifted to a higher court to be sentenced alongside other strict indictable offences such as dangerous driving causing death, or culpable driving causing death (refer to sections 318 and 319 of the Crimes Act 1958 (Vic)).
The penalty imposed for the offence of Drive whilst disqualified will depend on a myriad of factors including the offender's past driving history (and how many priors for Drive whilst disqualified are included in that history).
Some guidance can be gleaned from the sentencing statistics published by the Sentencing Advisory Council (SAC). For the period of 1 July 2016 - 30 June 2019, the sentencing outcomes for Drive whilst disqualified were:
Imprisonment - 23.4%
Community Correction Order - 20.6%
Fine - 49.1%
Defences to Drive Whilst Disqualified
Perhaps the most frequent defence argued for Drive Whilst Disqualified is a defence of honest and reasonable mistake of fact.
A person wanting to argue this defence must establish 2 things:
an honest belief that on the day and time of the offence, the accused honestly believed that their license was not suspended; AND
this honestly held belief was based on reasonable grounds.
A successful defence based on honest and reasonable belief will always turn upon the particular facts that give rise to whether the honestly held belief was on reasonable grounds.
Simply informing the police that a suspension notice was not received will not without more, support a defence.
The driving must also occur on a 'highway' for the purposes of prosecuting this offence. The Road Safety Act defines a 'highway'.
In other circumstances, a defence of necessity may be available.
Conclusion
Contact us for an assessment of your situation if charged with Drive Disqualified.
The severity of this offence will depend upon other factors such as whether other traffic offences have been charged arising from the same incident (for example, dangerous driving, careless driving, drink/drug driving).
Other aggravating features include whether the offence was committed for a first occasion or a subsequent.
The Court will consider the issue of whether to impose a period of suspension for this offence in addition to other penalties described above.
