Driving whilst disqualified is regarded by the court as a very serious offence because it usually constitutes a defiance of, and contempt for, an order either of the court or a Registrar. As a general rule a penalty of imprisonment will be imposed by the sentencing court.
- For a first offence the penalty is imprisonment to a maximum of six months [see Motor Vehicles Act 1959 s 91(5)];
- For a second or subsequent offence the penalty is imprisonment to a maximum of two years [see s 91(5)].
Strictly speaking there is no difference between a disqualification ordered by a court (such as for a drink-driving or other traffic offence or for an illegal use/interference offence) and a disqualification ordered by the Registrar of Motor Vehicles (such as under the points demerit system or as a result of an enforcement order made by the court in respect of unpaid fines). Magistrates are required to take the view that Parliament has provided that a substantial sanction be imposed for disobedience to those orders [see Crook v Roberts (1990) 53 SASR 236; Maione v Higgins  SASC 2698; and Springall v Police (2007) 252 LSJS 160;  SASC 425 for interstate disqualifications].
|LIMITATIONS OF THE ROLE OF THE DUTY SOLICITOR|
|Duty solicitors should not conduct pleas of guilty for people charged with driving whilst disqualified. The exception may be where an unrepresented defendant is in a position of extreme disadvantage. Even then the duty solicitor should only act after obtaining a senior practitioner's advice, and with signed instructions. |
The usual role for a duty solicitor with defendants charged with driving whilst disqualified is to advise them of the procedures and penalties, and to encourage them to seek legal aid or private representation.
Many defendants do not realise the seriousness of this offence, nor that the penalty may be a sentence of imprisonment in “run of the mill” cases, even for a first offence. It is important that the duty solicitor explains to the defendant that:
- there is a very real risk of immediate imprisonment for this offence;
- it is important that the defendant adjourns the matter so that he or she can instruct a solicitor to represent them because they may have grounds that might persuade the court to suspend a sentence of imprisonment or, in unusual circumstances, even impose some lesser penalty, and
- a duty solicitor does not have the time to take the detailed instructions required to do this.
Where a defendant insists on pleading guilty unrepresented, it is important to emphasise that a Magistrate may well find no grounds to suspend a sentence of imprisonment, and that the defendant may be taken into custody immediately following sentencing.
A duty solicitor is not in a position to take the necessary detailed instructions to present submissions in mitigation; these would include:
- the reason(s) for the defendant driving whilst under disqualification and any exceptional or extenuating circumstances surrounding his or her decision to drive; and
- any personal circumstances, including the defendant’s family situation and effect of incarceration on any dependants, and any work, character and medical references which may satisfy the court that there is good reason to suspend a sentence of imprisonment even where there is little to submit in mitigation of the driving offence itself.
Failure to adequately prepare submissions in mitigation could adversely affect the chances of a defendant who later wishes to appeal an immediate sentence of imprisonment, owing to the fact that he or she was represented by counsel at the time of sentencing [see Guilty Pleas chapter].
|DEFENDANTS IN CUSTODY|
|A duty solicitor may be of genuine assistance by representing a defendant on a guilty plea to a charge of drive disqualified where the defendant has been refused bail on that charge alone, and has already spent a period in custody without instructing a solicitor. |
Such situations arise rarely, and if they do you must seek senior advice before proceeding on a guilty plea.
REMEMBER: never act on a guilty plea for drive disqualified without first getting senior advice, keeping detailed notes and obtaining signed instructions [see Guilty Pleas chapter].
As a rule of thumb, an unsuspended term of imprisonment may range from ten days to one month depending on the circumstances. It may be longer where aggravating factors are alleged, such as a high blood alcohol reading, reckless driving, a prior offending record which suggests long-term contempt for road traffic laws, or where the offence has occurred very soon after the disqualification. A term of imprisonment for a subsequent offence is significantly more severe.
Courts do not normally impose a further period of disqualification for an offence of driving whilst disqualified. The gravity of a sentence of immediate imprisonment is generally held to be sufficient penalty [see Saddler v Crossman (1988) 47 SASR 331]. It should be noted, however, that this authority refers specifically to a case where the penalty was an immediate period of imprisonment. As the discretion to suspend a sentence of imprisonment has now been restored by Police v Cadd & Others (1997) 69 SASR 150; SASC 6187 (as discussed below), a question is now raised as to whether Magistrates may sometimes take the view that where imprisonment is suspended it may be appropriate to order a further disqualification by way of penalty. There is discretion to impose a licence disqualification for any offence relating to motor vehicles, including where a motor vehicle was involved in the commission of an offence, or where the commission of an offence was facilitated by the use of a motor vehicle [see Road Traffic Act 1961 s 168(1); R, J v Police  SASC 153].
- Case authority prior to Cadd
- Case authority since Cadd
- Appeal cases where suspended imprisonment was held to be appropriate
- Appeal cases where immediate imprisonment was upheld
- Mitigation of penalty
- Defence of honest and reasonable mistake of fact
- Appeal cases on the defence of honest and reasonable mistake of fact
The following commentary is intended only as a general guide to the sentencing principles and standards in relation to drive disqualified offence(s), mitigating factors and the defence of honest and reasonable mistake of fact. Since the judgments of the Full Court in Police v Cadd & Others (1997) 69 SASR 150;  SASC 6187 (‘Cadd’), there have been many single Judge decisions on appeal on the subject of the proper approach to sentencing defendants convicted of driving whilst disqualified. There remains disagreement and inconsistency as to the proper application of the principles in Cadd . This is another good reason why duty solicitors must be cautious when dealing with defendants charged with the offence of driving whilst disqualified.
Prior to Cadd the leading authority was Coombe v Douris (1987) 47 SASR 324, which was subsequently followed in Eldridge v Bates (1989) 51 SASR 532. These cases established rigorous sentencing standards under which there was no discretion to suspend a sentence of imprisonment in any but rare and exceptional circumstances, such as a decision to drive in a situation of serious emergency. Where it was submitted that such a situation had arisen at the time of driving, the sentencing Magistrate should hear evidence as to those facts.
Since Cadd it appears that the sentencing Magistrate’s discretion to consider whether there was good reason to suspend a sentence of imprisonment or to depart from the penalty provided by the legislation was restored by virtue of the previous Criminal Law (Sentencing) Act 1988 (SA) ss 10, 11, 18 and 38 [see current Sentencing Act 2017 (SA) ss 10, 11 and 96].
Several propositions may be extracted from Cadd and later single Judge decisions:
Weight should be given to general deterrence
The sentencing Magistrate should give appropriate weight to the principle of general deterrence. The prevalence of the offence and its corrosive effect upon the efficacy of licence disqualification as a punishment require the court to maintain a sentencing standard which reflects the seriousness of the offence.
Serving a custodial sentence is not inevitable
Contrary to the decision in Coombe v Douris, a custodial sentence and the requirement to actually serve that period of imprisonment is no longer to be taken as an almost inevitable consequence of conviction. Such a sentencing standard would fetter the discretion of a sentencing Magistrate.
A custodial sentence is normally appropriate where the driving is "contumacious"
As explained by Mullighan J, in Cadd (at 179):
[The] standard, accepting these matters and giving appropriate emphasis to general deterrence should be imprisonment in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment such as a substantial fine or community service in the appropriate case. I use the word “contumacious” in the sense that it is understood in the law: see [Witham v Holloway (1995) 183 CLR 525;  HCA 3] at 542-543. It means something more than mere intention to drive disqualified which is an essential element of the charge. It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it. In other cases involving a first offender where the offending is otherwise, the starting point need not necessarily be imprisonment. The obligation to have regard to the matters set out in [the previous] ss 10 and 11 of the Criminal Law (Sentencing) Act 1988 and established sentencing principles are sufficient further guide to the sentence.
*Please note that the previous Criminal Law (Sentencing) Act 1988 (SA) as referred to above was replaced by the Sentencing Act 2017 (SA) which commenced on 30 April 2018.
The court must consider "good reason" for suspension even where imprisonment seems appropriate
Even where a sentence of imprisonment may be appropriate because of the contumacious character of the driving itself, the sentencing Magistrate should nevertheless have regard to whether there is good reason to suspend that sentence [see Sentencing Act 2017 (SA) s 96].
Alternative penalties may be considered where the offending is not contumacious
Where the circumstances of the offending do not amount to contumaciousness the Magistrate may find there is good reason to substitute an alternative penalty such as a fine or community service [see Sentencing Act 2017 (SA) s 25].
Suspension of sentence for second or subsequent offenders is not possible
In the case of a second or subsequent offence, it will naturally be harder but not necessarily impossible for the sentencing Magistrate to order a penalty other than an immediate sentence of imprisonment. As explained by Lander J, in Cadd (at 201):
For each further offence of driving whilst under suspension the prospects of the offender being imprisoned and/or failing to satisfy a sentencing Magistrate that good reason exists for suspending the sentence, increase. A person who commits a second or subsequent offence will, because of the circumstances of the offence, be more likely to be imprisoned in relation to that offence. That is because a second offence would ordinarily exhibit contumacy on the part of the offender. So also will that person be more likely to be unable to satisfy the court that good reason exists for the suspension of the sentence. Again however, in my opinion, having regard to the fact that this type of offence is simply one which must be considered in relation to the circumstances of the offence and the circumstances of the offender it would be inappropriate to lay down any further guidelines than that.
Similarly, Mullighan J, in Cadd (at 180):
Of course, different considerations must apply to the offender who is before the Court on this charge for a second or subsequent occasion. Circumstances which would justify other than a sentence of imprisonment actually to be served do not readily come to mind, but that is not to say that they cannot exist.
Progressive steps must be taken in determining penalty
The Court is required to approach the sentencing task by progressive steps to determine the appropriate penalty in the individual case. English v Police  SASC 6266 (Unreported, Lander J, 22 July 1997), which was one of the first appeal cases after Cadd. The appellant had been sentenced to an immediate term of imprisonment for 21 days just prior to the decision in Cadd. Counsel for the appellant submitted that the appellant believed the disqualification had expired at the time he drove. The appeal was allowed and the matter remitted back to the summary court for sentencing afresh and to hear evidence if necessary. The sentencing Magistrate would have to first satisfy him or herself whether the circumstances amounted to contumacious offending to determine whether a sentence of imprisonment should be imposed. If it were, the question of suspension would then need to be considered.
The procedural steps to determining penalty are:
1. Is the decision to drive whilst disqualified one which should be characterised as “contumacious”?
If so, then the starting point should be a sentence of imprisonment. If not, the court may find good reason to impose a lesser penalty such as a fine or community service.
For example, in Harshazi v Police (1998) 71 SASR 316;  SASC 6663, the sentencing Magistrate did not first conclude that the driving was “contumacious”, describing it instead as “foolish”. The defendant had been detected driving at 162 kph in a 110 kph zone. He had been a passenger but had taken over driving while his friend consumed food bought at a service station stop. Justice Mullighan allowed the appeal stating (at 318):
[u]pon consideration of the circumstances of the offending, a foolish and not contumacious act, and the personal circumstances of the appellant, application of the sentencing standard in Cadd would not lead to a sentence of imprisonment.
[see Nash v Police  SASC 112; Scholes v Police  SASC 116; Rhodes v Police  SASC 191 regarding “foolish” offending; White v Police (2000) 76 SASR 430; SASC 127) for “foolish and unthinking”; Wright v Police  SASC 462for employment; Lennon v Police (2005) 238 LSJS 185; SASC 11) for good explanation of "contumacious"]
2. Where the driving is found to have been contumacious the court should have regard to the personal circumstances of the offender to consider whether there is good reason to suspend a sentence of imprisonment.
Circumstances such as previous good character, age, medical or mental health factors, whether the offence was premeditated, whether the defendant has employment, whether the defendant’s incarceration would cause hardship for any dependants, whether there were any extenuating circumstances in the context of the decision to drive under disqualification are among the circumstances which the court may have regard to.
On this point, Justice Lander in Johns v Police  SASC 6729, said (at 7):
However, even if it is contumacious behaviour it will not necessarily give rise to an immediate sentence of imprisonment. There will still need to be an inquiry into whether good reason exists for suspending the sentence [see Sentencing Act 2017 (SA) s 96].
3. Where the driving is found not to be contumacious or may be characterised as trivial or committed in the context of genuine emergency the full range of sentencing options and principles arising under the Sentencing Act 2017 (SA) is available to the sentencing Magistrate.
There would appear to be no reason why the court should not consider exercising its discretion under the Sentencing Act 2017 (SA) section 24 to refrain from ordering that a conviction be recorded, if it proposes to order a fine, a sentence of community service, or both [see Bates v SA Police (1997) 70 SASR 66;  SASC 6430); Valentincic v Police  SASC 6477 for examples]. However, it must be conceded that without conviction cases would be rare in view of the serious nature of the offence. In addition to trivial or emergency situation examples, driving which would be accepted as non-contumacious would normally include those cases where the driver has acted under a mistake of law, such as where the driver was in genuine error as to the operative dates of the disqualification, or the time at which the disqualification came into effect or expired, or was under an honest but not reasonable misapprehension as to the operation of an administrative disqualification by the Registrar of Motor Vehicles. However, prosecution may challenge the “non-contumacious” basis of a plea of guilty and the defendant and any witnesses may be required to give evidence on oath as to the circumstances and state of mind which led to the driving.
When is driving "contumacious"?
There still exist opposing judicial views as to the type of driving which should be held to exhibit “contumaciousness”.
In Bates v Police, Perry J stated (at 73):
... the law draws a distinction between conduct which is merely wilful and conduct which is contumacious, the latter apparently involving some element of defiance ... I am of the view that to satisfy the element of defiance necessary to convert a wilful disobedience of an order of suspension into a contumacious breach of the section, it is sufficient that a person who well knows that he or she is disqualified from driving, deliberately drives in circumstances in which the passage of driving is more than momentary or for a short distance, such as removing a car from a street into an adjacent driveway, and is not ameliorated by reference to circumstances such as an emergency or some other form of duress.
In Harshazi v Police, Mullighan J disagreed (at 319, 320):
After considering the meaning of contumacious and concluding, correctly in my view, that “the law draws a distinction between conduct which is merely wilful and conduct which is contumacious, the latter apparently involving some element of defiance”, which is the view expressed in Cadd, Perry J went on to say ... It is not appropriate, in my view, in effect to circumscribe the circumstances which amount to contumacious offending in the manner expressed by Perry J. The offending may not be contumacious even though the driving is over more than a short distance and in circumstances [that] do not involve an emergency of duress. The present case is an example. The offending was foolish, not contumacious. If the meaning of contumacious in the present context was defined in that way so as to exclude only very few types of cases from its reach, there would be a very different sentencing standard than that expressed by the majority in Cadd.
Of particular note, both views (as cited above) appear to be in agreement that ‘the law draws a distinction between conduct which is merely wilful and conduct which is contumacious, the latter apparently involving some element of defiance’. The quality of “defiance” required to characterise the driving as contumacious was discussed by Lander J in Johns v Police (at 7):
Because the test is contumacy the inquiry must be more directed to attitude. The reasons for driving a motor vehicle, in circumstances where the offender well knew that he or she had been ordered by a Court or by administrative action not to drive a motor vehicle, are important. If the driving exhibits an attitude of defiance then that would normally amount to contumacy and may call for a sentence of imprisonment. To drive a motor vehicle in circumstances where the person is disqualified because it is convenient to do so and because it would be inconvenient not to drive probably does suggest an attitude of defiance. It rather suggests that it does not suit the driver to obey the order of the Court. If the offender’s attitude exhibits defiance that would suggest contumacy.
The defendant was disqualified due to demerit points and was a first offender. He made regular arrangements for alternative transport to adjust to the disqualification and had arranged for a friend to drive him and his two sons to Port Pirie for a BMX race meeting. The friend was too intoxicated to drive them back to Adelaide three days later so the defendant drove. Lander J was not prepared to categorise his behaviour as contumacious because it did not indicate an attitude of total disregard of, and disobedience to the authority which had ordered the disqualification. Up until the point in time when he drove the car his behaviour had suggested appropriate obedience to the disqualifying authority [see Johns v Police  SASC 6729].
The defendant was a 23-year-old man who drove his unregistered and uninsured car to obtain parts for it, but only thirteen days after the disqualification imposed. He had prior convictions for unregistered and uninsured driving. Perry J held that the driving was contumacious and that an immediate sentence of imprisonment would have been appropriate were it not for the effect of his incarceration on the two young children of his sister to whom he was sole de facto parent, his sister having suicided in custody some four years before. The effect on dependants is a matter which should be taken into account [see Bates v Police (1997) 70 SASR 66;  SASC 6430].
The defendant was disqualified for a PCA offence. The sentencing Magistrate characterised the defendant’s act of taking over the driving whilst his friend consumed food bought at a service station stop, and in so doing driving at 162 kph in a 110 kph zone, as “foolish”. The defendant received an immediate term of imprisonment of two weeks. Mullighan J substituted this penalty with an order for 50 hours community service on the basis that the Magistrate did not conclude that the offending was contumacious and did not have sufficient regard to the personal circumstances of the appellant and in particular to his employment and family circumstances [see Harshazi v Police (1998) 71 SASR 316;  SASC 6663].
The defendant’s only prior conviction was for the PCA offence which had led to his disqualification, and he had positive character references from his employers. The driving was “one-off” in nature: the defendant had been riding his bicycle to work regularly and had not told his employer of his disqualification, fearing he would be dismissed. On the occasion of the offence, the employer had unexpectedly required him to travel to an associated place of work at the end of his late shift when no public transport was available. The defendant panicked, rode his bicycle home to get his car and drove to the required destination. On appeal it was held not to be a premeditated, positive act of defiance with a number of substantial mitigating features. The original sentence of immediate imprisonment for a period of seven days was set aside, and a sentence of twenty-one days imprisonment (suspended) substituted [see Theophilus v Police  SASC 6521].
The defendant was disqualified by order of the Registrar of Motor Vehicles for non-payment of fines. He drove from home to Hungry Jack’s because he ‘just wanted a burger’ and intended to drive back home. He had a de facto wife and a five-year-old child, and he had undergone training and obtained permanent employment since the offence. He was ordered to serve an immediate term of imprisonment for a period of twenty-one days. On appeal, it was held that the offending was contumacious and warranted a term of imprisonment but it would be appropriate to suspend the term of imprisonment. The grounds for this decision was based upon the realisation that an immediate term of imprisonment would likely undo the rehabilitation undertaken by the appellant during the six months between the offence and the date of the hearing [see Hinds v Police SASC 6259 (Unreported, Lander J, 15 July 1997). This was a decision handed down soon after Cadd ].
The defendant had received concurrent sentences of twenty-one days each for driving whilst disqualified and driving under the influence of alcohol. He had been disqualified as a result of a previous PCA offence but had never before served a custodial sentence. He had driven from Murray Bridge to Mannum reluctantly and under a considerable degree of pressure from his intoxicated friend, his own judgement being impaired by alcohol. Olsson J held the breach to be clearly contumacious saying: ‘... even if he was in an alcoholic haze at the time, the appellant well appreciated the seriousness of driving in the manner in which he did, and of the possible consequences of that driving.’ Although the situation was ‘perhaps somewhat near to the borderline in relation to consideration of suspension’ there was nothing that would take the case out of the usual run-of-the-mill cases of this type and no error found in declining to suspend [see Valentincic v Police  SASC 6477].
The defendant drove a friend’s vehicle from a city hotel with a blood alcohol reading of 0.254. This was his fourth drink driving offence in the space of six years. It was argued that a requirement to serve a sentence of immediate imprisonment would result in a loss of employment and would cause distress to his ill and elderly Greek parents. On appeal it was held that an antecedent record for “like” offences and an extreme degree of intoxication were aggravating factors which could not be mitigated by the submission that he was so befuddled by his state of intoxication as to take the driving out of the “contumacious” category [see Drivas v Police  SASC 6520].
The defendant had received an immediate sentence of imprisonment of fourteen days. He was a fifty-five-year-old grandfather on a disability support pension. He had taken his six-year-old grand-daughter to the Royal Show and had returned to his wife’s house with her to get a lift home. His wife was not home and the house was locked. There was no public transport available and no money for a taxi. It was raining heavily and the child was crying with discomfort. The defendant took the spare car key from outside the house and drove home with the child. On appeal, despite some sympathy for the circumstances, it was found there was no error in not exercising the discretion to suspend. Leniency was appropriately shown by ordering an immediate sentence of imprisonment of fourteen days only [see French v Police  SASC 6532].
The defendant was a sole parent to two young children. She drove to pick her sons up from an access visit with their father, when a prior arrangement fell through due to her mother’s illness. There was a background of severe violence from the children’s father and a psychiatrist’s report advising against imprisonment. A sentence of ten days imprisonment to be served was upheld [see Ballone v Police  SASC 6534].
The defendant had a background of post-traumatic stress disorder and clinical depression. He was disqualified as a result of a PCA offence. When driving under disqualification he had a blood alcohol reading of 0.227. The defendant had not intended to drive but had run out of alcohol and took his girlfriend’s car keys from the table without thinking, to go to the hotel for more alcohol. An order to serve twenty-eight days imprisonment was upheld on appeal. While the background and circumstances of the appellant did justify some compassion, the driving was contumacious and aggravated by the high blood alcohol reading in the context of the prior PCA disqualification [see Wood v Police  SASC 6543].
The defendant had a deplorable record including offences involving the use of motor vehicles. The drive whilst disqualified offence was committed while the defendant was on parole. He rode a motorcycle a short distance from a reserve at Morgan to the house where the motorcycle was kept. Psychiatrist’s and parole officer’s reports indicated that a sentence of imprisonment would have a detrimental effect on his continuing rehabilitation. On appeal it was held that although this was not a particularly serious example of an offence of its type, it was nevertheless not a case of a minor breach nor one committed by a first offender. Therefore there was no proper basis for suspending. The sentence with a non-parole period of twenty-eight days was appropriate [see Cox v Police SASC 6110 (Unreported, Duggan J, 11 July 1997)].
The degree of defiance in the offending will be important in consideration of penalty [see Johnston v Wilkinson (1983) 11 A Crim R 140]. The Court will look at the following factors in determining defiance:
- whether the offence was pre-meditated;
- whether the offence demonstrated a flagrant disregard of the disqualification order;
- if the offence was committed at an early stage of this disqualification;
- if the driver was placed in an unusual situation of real emergency;
- the gravity of the offence;
- whether there was a concentration of alcohol in the defendant’s blood;
- the manner of driving;
- whether speeding was involved, or recklessness;
- whether it was a minor breach of an unintentional nature, such as miscalculating the date.
Defying a disqualification order for the purpose of engaging in unlawful activities such as driving a “getaway car” is a serious offence. Driving whilst disqualified, coupled with a manner of driving which breaches any provisions in the Road Traffic Act 1961, and particularly where that breach repeats the breach that resulted in the initial disqualification, will be viewed seriously by the Court [see Evans v Higgins (1989)153 LSJS 454].
The defence of honest and reasonable mistake of fact is available for the offence of drive whilst disqualified [see Davis v Bates (1986) 43 SASR 149]. This defence may arise where the driver claims that he or she was unaware of disqualification, such as where the driver was not present in court when the order was made or where the driver doesn't receive a demerit point notice informing him or her of a licence disqualification.
|NO NOTIFICATION OF DISQUALIFICATION|
It is important for the duty solicitor to note that if a person is disqualified other than by court order and denies receiving notification of that disqualification, it is up to the prosecution to prove that the notice was received. Without such proof the charge would ordinarily be withdrawn after negotiations.
Appeal cases on defence of honest and reasonable mistake of fact
The defendant was convicted of illegal use of a motor vehicle and disqualified until further order. The defendant was under the impression that he was disqualified for nine months and had applied and received a licence after the nine months had elapsed. On appeal it was held that no offence is committed if there is an honest and mistaken belief, based on reasonable grounds, as to the state of facts, which if true, would render the act itself innocent [see Davis v Bates (1986) 43 SASR 149].
The defendant was disqualified for a breach of probationary conditions and disqualified for three months until the twenty-fifth of January. He was caught driving on the twenty-fifth of January and raised the defence of an honest mistaken belief on reasonable grounds. On appeal it was held that the mistaken belief as to the effect of the endorsement on the licence was a mistake of law and the defence was therefore not available. The defendant made a mistake about the interpretation of the true effect in law of the endorsement on his licence which stated ‘disqualified to 25th January 1988’. That is, he was mistaken as to the legal significance of the relevant facts, whereas a mistake of fact would be where the driver made a mistake as to the actual facts [see Khammash v Rowbottom (1989) 51 SASR 172; Webb v Owen  SASC 3207 (Unreported, Legoe J, 12 December 1991); Police v Pace (2008) 186 A Crim R 113;  SASC 182].