Driving Disqualified

People can be disqualified from obtaining a licence for a various reasons. Any person who is found guilty or drink driving or drug driving will have their licence cancelled and be disqualified from driving for a fixed period of time. You can also become disqualified by traffic infringement notice.

A person who is disqualified from obtaining a licence is unable to drive during the period of disqualification and cannot drive until they have successfully applied for a new licence.

The Offence

Pursuant to s 30(1) of the Road Safety Act 1986 (Vic) (“the Act”), a person must not drive a motor vehicle on a highway during a period of disqualification from obtaining a licence or permit.

The Elements of driving disqualified

The prosecution must prove each of the following four elements beyond a reasonable doubt for an accused to be found guilty of this offence.

Element 1: The accused drove

Section 3 of the Road Safety Act 1986 (Vic) states that ‘drive’ includes being in control of a vehicle. Section 3AB of the Act states that a person steering a motor vehicle being towed by another motor vehicle is taken to be driving the towed vehicle.

Element 2: The accused drove a motor vehicle

‘Vehicle’ is defined by s 3 of the Act and means a conveyance that is designed to be propelled or drawn by any means and includes bicycles and other pedal-powered vehicles.

‘Motor vehicle’ is defined by s 3 of the Act and means a vehicle that is used or intended to be used on a highway and that is built to be propelled by a motor that forms part of the vehicle but does not include a vehicle intended to be used on a railway or tramway, a motorised wheelchair not capable of a speed of more than 10kmh which is used solely for the conveyance of an injured or disabled person, or a vehicle that the Governor in Council has declared to not be a motor vehicle.

Are motorised eskies ‘motor vehicles’?

There have been cases interstate involving motorised eskies and they have been found to be ‘motor vehicles’. It would appear that the Victorian definition ‘motor vehicle’ outlined above would capture motorised eskies.

Element 3: The accused drove on a highway

Highway is defined by s 3 of the Act to mean ‘road’ or ‘road related area’. ‘Road’ is also defined in s 3 of the Act and means ‘an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicle, or a place that the Governor in Council has declared a road.

‘Road related area’ means an area that divides a road, a footpath or nature strip adjacent to a road, an area that is open to the public and is designated for use by cyclists or animals, an area that is not a road and that is open to or used by the public for driving, riding or parking motor vehicles, a place that the Governor in Council has declared a road related area.

Element 4: The accused was disqualified

Section 3AD of the Act outlines the circumstances in which a person is taken to be disqualified from obtaining a driver licence or permit. They include where a person has had their licence or permit cancelled for drink and drug driving infringements; excessive speed infringements; has been convicted of a serious motor vehicle offence such as manslaughter involving driving and has had their licence cancelled (s 89(1) of the Sentencing Act 1991 (Vic)); has been convicted of the offence of dangerous or negligent driving whilst being pursued by police (s 319AA of the Crimes Act 1958 (Vic)) and has had their licence cancelled; has been convicted of stealing or attempting to steal a motor vehicle and has had their licence cancelled (s 89(4) of the Sentencing Act 1991 (Vic)); or has otherwise has had their licence cancelled by a court for committing any offence (s 89A(1)(b)of the Sentencing Act 1991 (Vic)).

Pursuant to s 3AE of the Act, a person who holds a valid interstate licence but who has been disqualified in Victoria cannot drive.

Penalties

For a first offence, a sentence of up to 30 penalty units ($4,428.30 as at 1 July 2014) or imprisonment for four months may be imposed. For a subsequent offence, a sentence of up to 240 penalty units ($35,426.40) or imprisonment for up to two years may be imposed.
There is no associated mandatory licence loss of licence however the court may exercise the general discretion vested in it by s 28 of the Act to suspend or cancel a driver’s licence for such time as it thinks fit.

Drive whilst disqualified does not attract a demerit point penalty.

Which court will this charge be heard in?

The charge is usually heard in the Magistrates’ Court however pursuant to ss 242 and 243 of the Criminal Procedure Act 2009 (Vic), the County Court and Supreme Court may hear and determine the charge if the accused is before those courts for indictable offences.

If the charge is a ‘related’ offence, meaning that it is an offence ‘founded on the same facts or form, or is part of a series of offences of the same or a similar character’, then it may be heard in the County Court or Supreme Court. It may be transferred if the accused pleads guilty to an indictable offence or is found guilty of a related indictable offence, and it must be transferred if the accused is awaiting trial in either the County or Supreme Courts for a related indictable offence.

Pursuant to s 243 of the Criminal Procedure Act 2009 (Vic), the County Court or Supreme Court may hear and determine an unrelated charge of drive disqualified if the accused is before the court for an indictable offence, intends to plead guilty to the drive disqualified, and consents. If these criteria are not satisfied then the charge will remain in the Magistrates’ Court.

Defences

Factual dispute

The accused did not drive

The circumstances in which someone is taken to be driving a motor vehicle are set out above. Notably, drive includes being in control of a motor vehicle which is different to being in charge of a motor vehicle which relates to drink-driving charges. If you were merely in charge of the vehicle and not in control you will be not guilty. In charge is defined in s 3AA of the Act and includes where a person is attempting to start the motor vehicle.

It could also be the case that you deny you were driving and say that someone else was. If this defence is raised, the police may pursue you under s 60 of the Act which makes it an offence to not give information which may lead to identification of the driver if the person can give it.

It is also important to note though that there have been cases where the driver and passenger have swapped seats and then lied about who was driving. This may result in a charge of attempting to pervert the course of justice which is a serious offence punishable by up to 25 imprisonment.

The accused did drive but not on a highway

The accused was not driving a ‘motor vehicle’

Honest and reasonable mistake of fact

If the accused had an honest and reasonable belief that their licence was not disqualified, this provides a defence to the charge. This is often raised in situations where the accused claims to not have been notified of the disqualification or where there has been inconsistent communication received from VicRoads. This is ultimately a question of fact for the Magistrate.

In DPP v Foster [2000] VSC32, the Director of Public Prosecutions appealed the finding of a Magistrate in a case involving a charge of driving whilst suspended. After conducting a licence check a police officer had told the plaintiff that his licence had been suspended. The issue on appeal was whether or not the plaintiff had reasonable grounds for holding the belief that he was entitled to drive. In refusing the appeal, Hedigan J held that while it would rarely be the case that a reasonable belief could be held that the person was entitled to drive because his or her licence was not suspended after having been told by a police officer that it had been suspended, that this was such a case. Hedigan J found that it was open to the Magistrate to find that the belief was reasonable in circumstances where the plaintiff had not been notified in writing that his licence was suspended and where he felt that the police were ‘picking’ on him.

Necessity

It may be that you say you had no option but to drive because there was an emergency. The law of necessity is complex however, if this defence is raised, the onus is on the accused to show: (i) that the harm sought to be avoided outweighed the danger of driving whilst disqualified; (ii) there was no reasonable alternative; (iii) he ceased to drive as soon as the danger passed; and (iv) he or she did not create the danger sought to be avoided.

Sentencing

The Sentencing Advisory Council has released sentencing statistics for people sentenced in the Magistrates’ Court for the offence of drive whilst disqualified for the period 1 January 2010 to 31 December 2012.

Of the 15,144 people sentenced for drive whilst disqualified during this period, 17.2% of people received a period of imprisonment, 3.6% received a partially suspended period of imprisonment, 20.9% received a wholly suspended period of imprisonment, 14.4% received some form of community based order, 40.5% received a fine, and 2.9% received an adjourned undertaking or were discharged or dismissed.

Aggregate sentencing occurs when a Magistrate imposes one sentence for multiple charges as opposed to individual sentences for each charge.

Of the 17.2% of people who were sentenced to a period of imprisonment: 14.1% received an aggregate term of less than 3 months imprisonment and 23.7% received a non-aggregated term of less than three months; and 19.1% received an aggregate term of imprisonment of between 3 and 6 months imprisonment and 8.8% received a non-aggregated term of between 3 and 6 months;

Of the 20.9% of people who received a wholly suspended period of imprisonment: 18.6% received an aggregate term of less than 3 months and 38.6% received a non-aggregated term of less than months; 22.5% received an aggregate term of between 3 and 6 months and 8.9% received a non-aggregated term of between 3 and 6 months; 8.8% received an aggregate term of between 6 and 12 months and 1.7% received a non-aggregated term of between 6 and 12 months.

Of the 40.5% of people who received a fine: 4.7% received an aggregate fine of less than $500 and 11% received a non-aggregated fine of less than $500; 27.1% received an aggregate fine of between $500 and $1,000 and 29.6% received a non-aggregated fine of between$500 and $1,000; 18.3% received an aggregate fine of $1,000 to $2,000 and 5.9% received a non-aggregated fine of between $1,000 and $2,000.

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