A person who is found guilty of driving a motor vehicle while disqualified from holding or obtaining a driver's licence or while the person's licence is suspended, may be gaoled for up to six months (2 years for a subsequent offence) [Motor Vehicles Act 1959 (SA) s 91(5)].
The Supreme Court has frequently emphasised that the ordinary punishment for driving while disqualified must be imprisonment however, the court retains a discretion to suspend the sentence, but only in exceptional circumstances.
The Full Supreme Court (Police v Trevor Harold Cadd, John Patrick Hall, Attila Tibor Illes, Vasilios Vlachos and Mark Adrian Quinn(1997) Judgement No. 618, Mullighan J), held that the punishment 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 ...".
Circumstances to be taken into consideration:
- whether there were exceptional reasons for the offence
- the previous good character of the offender
- the likelihood of the offender responding to a final warning (given by means of a suspended sentence)
- the community interest in rehabilitation without imprisonment
- the traditional reluctance to imprison an offender for the first time
- the consequences of imprisonment for an offender and the offender's family (where relevant), and
- other relevant matters
All these factors require careful consideration under s 38 of the Criminal Law (Sentencing) Act 1988 (SA).
The issue of whether a term of imprisonment in relation to a drive disqualified offence should have been suspended was addressed in Mill v Police  SASC 253. Although the magistrate’s decision to imprison Mr Mill was overturned on appeal the decision clearly shows that most cases of driving whilst disqualified will satisfy the definition of ‘contumacious’ offending (wilfully disobedient) resulting in a term of imprisonment.
Guide to likely terms of imprisonment
As a guide, an unsuspended term of imprisonment may range from 10 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 occurred very soon after the disqualification. The gaol term is significantly more severe for a subsequent offence.
No further period of disqualification imposed by courts
As a matter of custom, courts do not normally impose a further period of disqualification for an offence of driving whilst disqualified. The gravity of a sentence of imprisonment is generally held to be sufficient penalty (see Saddler v Crossman (1988) 142 LSJS 337, von Doussa J).
No distinction between disqualification imposed by courts and disqualification by Registrar of Motor Vehicles
Strictly speaking there is no difference between a disqualification ordered by a court (eg 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 (eg under the points demerit system). Magistrates are required to take the view that Parliament has provided that a substantial sanction be imposed for disobedience to those orders (Crook v Roberts (1990) 53 SASR 236; Maione v Higgins(unreported) Supreme Court, Olsson J. 1 February 1991, Judgment No. 2698).
No distinction between suspension of licence for failure to pay fines and suspension as penalty for offending
Section 91 of the Motor Vehicles Act 1959 (SA) now makes no distinction between a suspension triggered by non-payment of fines and one that is a penalty for an offence. A person driving a vehicle whilst his/her licence is suspended or disqualified (regardless of the reason they have been suspended/disqualified) faces a maximum penalty of imprisonment for 6 months for a first offence and imprisonment of up to 2 years for a subsequent offence [s 91(5)].
Riding petrol-assisted bikes
Drivers disqualified due to drink driving can be charged with driving disqualified if they are found riding a petrol-assisted bike. Unlike ordinary bicycles, or even pedal power-assisted (i.e. electric) bikes, petrol-assisted bikes cannot be legally driven on South Australian roads (see Cyclists).
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