Penalty

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 subject to a term of imprisonment:

[Motor Vehicles Act 1959 (SA) s 91(5) and (5a)].

Defence of Honest and Reasonable Mistake of Fact

The defence of honest and reasonable mistake of fact is available for facts, which if true, would have rendered the conduct innocent- see Davis v Bates (1986) 43 SASR 149.This differs to the situation where a defendant has a mistaken understanding of the law.

In Morcom v Police [2017] SASC 147, the Supreme Court held that the defence was made out as the defendant made an inquiry with Service SA and was told that the licence was not suspended. The defendant held an honest and reasonable belief that they were permitted to drive, which amounted in truth to a mistake of fact.

Defence of Sudden or Extraordinary Emergency

Section 15E of the Criminal Law Consolidation Act 1935 (SA) creates a statutory defence of 'sudden or extraordinary emergency'. See DEFENCES.

Imprisonment

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:

All these factors require careful consideration under section 96 of the Sentencing Act 2017 (SA).

Contumacy

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 [2007] 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.

In Police v Nissen [2014] SASCFC 7 and Police v Chilton [2014] SASCFC 76 the respective defendants' driving were held to be contumacious as there was an attitude of total disregard for the disqualifying authority.

In Police v Carletti [2020] SASC 118 the defendant was given an instant loss of licence notice by police for drink driving, but did not realise that they were disqualified as they expected to receive a summons to attend court.The Supreme Court held that defendant's driving was non-contumacious, after hearing evidence on oath and reviewing policy body worn video. The Court imposed a fine, with no conviction.

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).

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).