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  • Writer's pictureGeoff Harrison

Drive Whilst Licence Suspended

Updated: Sep 23, 2023


Criminal Lawyer, Criminal Barrister, Criminal Solicitor, Drive whilst suspended

Published by Geoff Harrison | 22 September 2023


The offence of driving whilst suspended is under s54(3) of the Road Transport Act 2013 ('the Act') which carries a maximum penalty of 30 penalty units ($3,300) and/or 6 months imprisonment or 50 penalty units and/or 12 months imprisonment for a second or subsequent offence. The automatic period of disqualification upon conviction is 6 months with a minimum period of 3 months or 12 months disqualification or a minimum of 6 months disqualification for a second or subsequent offence.


The defence of Honest and Reasonable mistake of fact is available; however, it should be noted that both limbs of this defence need to be satisfied. A person's belief as to the status of their licence may be honest, however, it may not be reasonable. For example:

  • Failure to notify the RMS of a change of address hence, the non-receipt of mail notifying of the licence suspension.

  • The accumulation of demerit points within a short period of time and failure to make any inquiry as to the status of the licence.


Other Resources:

Cases:


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Extracted Legislation:


ROAD TRANSPORT ACT 2013 - SECT 54

Driving or making licence applications while disqualified or licence suspended or cancelled


(cf DL Act, s 25A(1)-(10))


(1) Driving or making licence application while disqualified A person who is disqualified from holding or obtaining a driver licence must not--

(a) drive a motor vehicle on a road during the period of disqualification, or

(b) make an application for a driver licence during the period of disqualification and in respect of the application--

(i) state the person's name falsely or incorrectly, or

(ii) omit to mention the disqualification.

Maximum penalty--30 penalty units or imprisonment for 6 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence).


(2) Subsection (1) does not apply to a driver of a motor vehicle in relation to a period of disqualification the commencement and completion dates of which have been altered by operation of section 206 unless Transport for NSW has given written notice of the altered dates to the driver before the driver is alleged to have driven the vehicle.

Note : Section 276 (and statutory rules made for the purposes of that section) provide for the service and giving of documents to persons under the road transport legislation, which includes this Act.


(3) Driving or making licence application while licence suspended (other than for non-payment of fine) A person whose driver licence is suspended (otherwise than under section 66 of the Fines Act 1996 ) must not--

(a) drive on a road a motor vehicle of the class to which the suspended driver licence relates, or

(b) make an application for a driver licence during the period of suspension for a motor vehicle of the class to which the suspended driver licence relates and in respect of such an application--

(i) state the person's name falsely or incorrectly, or

(ii) omit to mention the suspension.

Maximum penalty--30 penalty units or imprisonment for 6 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence).


(4) Driving or making licence application after licence refusal or cancellation (other than for non-payment of fine) A person whose application for a driver licence is refused or whose driver licence is cancelled (otherwise than under section 66 of the Fines Act 1996 ) must not--

(a) drive on a road a motor vehicle of the class to which the cancelled licence or the refused application related without having subsequently obtained a driver licence for a motor vehicle of that class, or

(b) make an application for a driver licence for a motor vehicle of the class to which the cancelled licence or the refused application related and in respect of the application--

(i) state the person's name falsely or incorrectly, or

(ii) omit to mention the cancellation or refusal.

Maximum penalty--30 penalty units or imprisonment for 6 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence).


(5) Driving or making licence application after licence cancelled or suspended for non-payment of fine A person whose driver licence is suspended or cancelled under section 66 of the Fines Act 1996 must not--

(a) in the case of a suspended driver licence--

(i) drive on a road a motor vehicle of the class to which the suspended licence relates, or

(ii) make an application for a driver licence during the period of suspension for a motor vehicle of the class to which the suspended driver licence relates and in respect of such an application state the person's name falsely or incorrectly or omit to mention the suspension, or

(b) in the case of a cancelled driver licence--

(i) drive on a road a motor vehicle of the class to which the cancelled licence related without having subsequently obtained a driver licence for a motor vehicle of that class, or

(ii) make an application for a driver licence for a motor vehicle of the class to which the cancelled licence related and in respect of the application state the person's name falsely or incorrectly or omit to mention the cancellation.

Maximum penalty--30 penalty units (in the case of a first offence) or 50 penalty units or imprisonment for 6 months or both (in the case of a second or subsequent offence).


(6) In determining any penalty or period of disqualification to be imposed on a person for an offence against subsection (5), a court must take into account the effect the penalty or period of disqualification will have on the person's employment and the person's ability to pay the outstanding fine that caused the person's driver licence to be suspended or cancelled.


(7) No need to state previous licence cancellation or refusal in certain cases For the purposes of subsection (4)(b) or (5)(b)(ii), a person who applies for a driver licence for a class of motor vehicle need not mention a previous cancellation of a driver licence (or refusal of an application for a driver licence) for that class of motor vehicle if the person has obtained a driver licence after any such cancellation or refusal by means of an application that stated the person's name correctly and mentioned the cancellation or refusal.


(11) Offences extend to disqualifications, suspensions and cancellations by court order or under law Subsections (1), (3) and (4) apply to a person who is disqualified from holding a licence, or whose licence is suspended or cancelled, by a court in Australia or under any law in this jurisdiction or another jurisdiction.


(12) Statutory rules may exclude driving of certain motor vehicles Subsections (1), (4)(a) and (5)(b)(i) do not apply to the driving of a motor vehicle in circumstances prescribed by the statutory rules.


ROAD TRANSPORT ACT 2013 - SECT 9

Determination of "first offence" and "second or subsequent offence"


(cf DL Act, ss 25(5) and 25A(11); Gen Act, s 96; STM Act, cl 2 of Dict)


(1) Application of section This section applies to the determination of whether an offence against a provision of this Act or the statutory rules is--

(a) a first offence, or

(b) a second or subsequent offence.

Note : The Act and the statutory rules provide in some cases for different penalties or disqualification periods, or for forfeitures or the making of mandatory interlock orders, in connection with an offence depending on whether a particular offence is a first offence or a second or subsequent offence.


(2) Second or subsequent offence If a person is convicted of an offence (the

"new offence" ) against a provision of this Act or the statutory rules, the new offence is a

"second or subsequent offence" only if--

(a) the person, within the applicable re-offending period (if any) for the offence concerned, was convicted of another offence (the

"previous offence" ) that was--

(i) an offence against the same provision, or

(ii) an offence against a former corresponding provision, or

(iii) an equivalent offence to the new offence, and

(b) the occasion when the new offence occurred was different from the occasion when the previous offence occurred.


(2A) Second or subsequent offence where previous offence dealt with by way of penalty notice If a person is convicted of an offence against this Act (the

"new offence" ), that offence is a

"second or subsequent offence" if--

(a) within the period of 5 years immediately before being convicted of the new offence, the person committed an alcohol or other drug related driving offence (the

"previous offence" ), and

(b) that previous offence--

(i) was against the same provision as, or was an equivalent offence to, the new offence, and

(ii) was dealt with by way of penalty notice, and

(c) the occasion when the new offence occurred was different from the occasion when the previous offence occurred.


(3) Except as provided by subsection (4), the

"applicable re-offending period" for a particular offence for the purposes of subsection (2)(a) is--

(a) the period of 5 years, or

(b) such other period as may be specified by a provision of this Act (in the case of offences against this Act) or the statutory rules (in the case of offences against the statutory rules) as the applicable re-offending period for the offence for the purposes of this section.


(4) An offence does not have an applicable re-offending period if a provision of this Act (in the case of offences against this Act) or the statutory rules (in the case of offences against the statutory rules) specifies that there is no such period for the offence for the purposes of this section.


(5) A previous offence is an

"equivalent offence" to a new offence for the purposes of subsection (2)(a)(iii) or (2A)(b)(i) if--

(a) where the new offence is an offence against section 54(1)--the previous offence was an offence against section 53(3) or 54(3) or (4) or a corresponding former provision or a major offence, or

(b) where the new offence is an offence against section 54(3)--the previous offence was an offence against section 53(3) or 54(1) or (4) or a corresponding former provision or a major offence, or

(c) where the new offence is an offence against section 54(4)--the previous offence was an offence against section 53(3) or 54(1) or (3) or a corresponding former provision or a major offence, or

(d) where the new offence is an offence against a provision of Chapter 5 or Schedule 3--the previous offence was a major offence, or

(e) a provision of this Act (in the case of offences against this Act) or the statutory rules (in the case of offences against the statutory rules) declares the offence to be an equivalent offence to another offence for the purposes of this section.


(6) Without limiting subsection (5)(e), an offence against a law of another jurisdiction may be declared to be an equivalent offence for the purposes of this section.


(7) In determining whether an offence is a second or subsequent offence, the following matters are immaterial--

(a) the order in which the offences concerned are committed,

(b) whether or not the offences concerned were subject to the same penalties.


(8) First offence An offence against a provision of this Act or the statutory rules is a

"first offence" if it is not a second or subsequent offence.


(9) If the court is satisfied that a person is guilty of an offence but cannot determine (from the information available to the court) whether the offence is a first offence for which the person was convicted, the court may only impose a penalty for the offence as if it were a first offence.


s4 Definitions:

"major offence" means any of the following crimes or offences--


(a) an offence by a person (the

"offender" ), in respect of the death of or bodily harm to another person caused by or arising out of the use of a motor vehicle driven by the offender at the time of the occurrence out of which the death of or harm to the other person arose, for which the offender is convicted of--

(i) the crime of murder or manslaughter, or

(ii) an offence against section 33, 35, 53 or 54 or any other provision of the Crimes Act 1900 ,

(b) an offence against section 51A, 51B or 52AB of the Crimes Act 1900 ,

(c) an offence against section 110(1), (2), (3)(a) or (b), (4)(a) or (b) or (5)(a) or (b),

(d) an offence against section 111, 112(1)(a) or (b), 117(2), 118 or 146,

(d1) a combined alcohol and drug driving offence,

(e) an offence against section 117(1) of driving a motor vehicle negligently (being driving occasioning death or grievous bodily harm),

(f) an offence against clause 16(1)(b), 17 or 18 of Schedule 3,

(g) an offence of aiding, abetting, counselling or procuring the commission of, or being an accessory before the fact to, any crime or offence referred to in paragraph (a)-(f),

(h) any other crime or offence that, at the time it was committed, was a major offence for the purposes of this Act, the Road Transport (General) Act 2005 , the Road Transport (General) Act 1999 or the Traffic Act 1909.


ROAD RULES 2014 - REG 10-1

NSW rule: determination of criminal responsibility


(1) Application of Commonwealth Criminal Code Subject to this rule, Chapter 2 of the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth (the

"Commonwealth Criminal Code" ) applies to an offence against these Rules as if the Chapter were in force as a law of New South Wales.

Note : Chapter 2 of the Commonwealth Criminal Code codifies the general principles of criminal responsibility.


(2) Offences are strict liability offences An offence against these Rules is a strict liability offence for the purposes of Chapter 2 of the Commonwealth Criminal Code (as applied by subrule (1)), except where these Rules expressly provide otherwise.


(3) General defence of accident or reasonable effort Without limiting any defence under Chapter 2 of the Commonwealth Criminal Code (as applied by subrule (1)), a person is not liable to a penalty for any offence under these Rules if the person proves to the satisfaction of the court dealing with the case that the offence--

(a) was the result of an accident, or

(b) could not have been avoided by any reasonable efforts on the person's part.


(4) Operation of Crimes (Sentencing Procedure) Act 1999 not affected Nothing in these Rules affects the application of the Crimes (Sentencing Procedure) Act 1999 in relation to these Rules (particularly, Divisions 4 and 5 of Part 2 of that Act).

Note 1 : Divisions 4 and 5 of Part 2 of the Crimes (Sentencing Procedure) Act 1999 contain provisions relating to how offence provisions are to be interpreted. For instance, section 17 of that Act defines the amount of a penalty unit. Similarly, section 18 of that Act sets out rules for interpreting provisions in legislation that impose penalties.

Note 2 : This rule is an additional NSW road rule. There is no corresponding rule in the Australian Road Rules . However, it is intended that each Australian jurisdiction that adopts the Australian Road Rules is to apply the provisions of the Commonwealth Criminal Code to offences against the uniform rules.


ROAD TRANSPORT ACT 2013 - SECT 6

Meaning of "road transport legislation"


(cf Gen Act, s 5)


(1) In this Act,

"road transport legislation" means the following--

(a) this Act and the statutory rules,

(c) the Motor Vehicles Taxation Act 1988 and the regulations under that Act,

(d) any other Act or statutory rule made under any other Act (or any provision of such an Act or statutory rule) that is prescribed by the statutory rules.


(2) Statutory rules referred to in subsection (1)(d) prescribing an Act or statutory rule made under another Act (or provision of such an Act or statutory rule) cannot be made without the concurrence of the Minister administering the Act or statutory rule concerned.


(3) A provision of this Act relating to the road transport legislation does not apply to the road transport legislation if that legislation provides otherwise either expressly or by necessary intendment.







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