Traffic offences in NSW
Driving while disqualified in NSW
Of all the traffic charges, this is the one magistrates take most personally. A disqualification is a court order, and driving through it is a breach of that order rather than a lapse of attention. Imprisonment is available on a first offence. It is also a charge that fails more often than people expect, usually on whether you were ever properly told.
Say nothing about what you knew, and do not plead guilty at the first mention
Knowledge of the disqualification is an element the prosecution has to establish. A single sentence at the roadside can hand it to them. Get your traffic record and the notice history before you enter any plea. Call us on 0407 171 626 (Alicia) or 0407 534 594 (Michelle).
Catron Simmons Lawyers are traffic lawyers acting for drivers charged with disqualified driving in Local Courts across New South Wales, from Sydney and the Hills District to the regions.
Driving while disqualified sits in section 54(1) of the Road Transport Act 2013. It is committed when a person who has been disqualified by a court from holding or obtaining a driver licence drives a motor vehicle on a road during the disqualification period. The same subsection also catches applying for a licence during the disqualification while giving a false name or failing to mention the disqualification.
The penalties were reduced on 28 October 2017. The maximum term of imprisonment fell from eighteen months to six on a first offence, mandatory minimum disqualifications were replaced with statutory minimums the court can order down to, and habitual traffic offender declarations were abolished. A large amount of material still online, including on other law firm websites, describes the pre-2017 regime and will overstate what you are facing.
Check your charge first
Disqualified is not the same as suspended
People use these words interchangeably in conversation. The Act does not. They are separate offences, laid under separate subsections, with separate proofs, and a charge laid under the wrong one cannot simply be corrected on the day.
Disqualified
A court disqualified you, almost always as part of a sentence for a drink driving or other major traffic matter. Driving through it is a breach of a court order and is sentenced accordingly. This page.
Suspended
Transport for NSW or a police officer suspended your licence, for demerit points, a speeding offence or an immediate suspension notice. Identical maximum penalties, but a very different thing to explain to a magistrate.
Suspended for an unpaid fine
Revenue NSW suspended your licence under the Fines Act 1996. Treated far less severely: no imprisonment on a first offence, and the court must weigh your employment and your ability to pay the fine.
Read the section number on your court attendance notice rather than the plain English description, which is often abbreviated. If it does not match what actually happened to your licence, that is the first thing to raise.
The elements
What the prosecution has to prove
Every element must be proved beyond reasonable doubt. Police briefs on this charge are often thin, because a licence status check makes the offence look self proving and the file gets built on that assumption.
1. You were driving a motor vehicle
Driving means control of the steering, movement or propulsion. Sitting in a stationary vehicle is not driving. Identity is genuinely in issue more often than you would think, particularly where police did not intercept the car and are working backwards from a camera image, a registration check or an assumption about who usually drives it.
2. On a road
The definition is broad and takes in car parks, driveways serving the public and road related areas. It does not take in every piece of private land. On a rural property, an enclosed worksite or a genuinely private driveway, the element is arguable.
3. You were disqualified at the time
The prosecution must prove a valid court order was in force on the date charged. It does this with a certificate of your driving record. Certificates are evidence, not proof, and disqualification periods are miscalculated with some regularity, especially where several run consecutively, where a period was varied on appeal, or where an earlier conviction was annulled or set aside.
4. You knew, or ought to have known
This is where the charge is won or lost. Where a disqualification’s start and finish dates have been altered by the operation of section 206, section 54(2) says in terms that you are not guilty unless Transport for NSW gave you written notice of the altered dates before the driving. More broadly, if the order was made in your absence, if notice went to a superseded address on your licence record, or if it was returned undelivered, the element is in doubt.
Do not resolve that doubt for the prosecution
“I knew I wasn’t supposed to be driving” is the single most damaging thing said at the roadside on these matters, and it is said constantly. You are not obliged to answer questions about your licence status beyond identifying yourself.
What you are facing
Penalties
Section 54(1), current law
The numbers a magistrate is working with
A penalty unit in NSW is $110. Any disqualification is imposed in addition to the fine, and in addition to the disqualification you were already serving.
Maximum fine, first offence
Maximum imprisonment, first offence
Shortest disqualification the court can order
| First offence | Second or subsequent offence | |
|---|---|---|
| Maximum fine | $3,300 (30 penalty units) | $5,500 (50 penalty units) |
| Maximum imprisonment | 6 months | 12 months |
| Automatic disqualification | 6 months | 12 months |
| Minimum disqualification | 3 months | 6 months |
| Maximum disqualification | Unlimited | Unlimited |
When is it a second or subsequent offence?
Being charged as a second offence roughly doubles your exposure, so it is worth checking rather than accepting. Under section 9 of the Act, a section 54(1) charge is a second or subsequent offence if, within the five years before you are convicted, you were convicted of:
- an offence against section 54(1), (3) or (4), that is disqualified, suspended or cancelled driving, or
- an offence against section 53(3), driving while never licensed, or
- a major traffic offence, which includes drink driving, driving under the influence, driving with an illicit substance, refusing a breath, blood or oral fluid sample, furious, reckless or dangerous driving, menacing driving, police pursuit, and negligent driving occasioning death or grievous bodily harm.
Note the five years runs back from the date of conviction, not the date of the driving. A prior fine default offence under section 54(5) does not count. Disqualification periods for this offence are set by the Table to section 205A of the Act.
The question everyone asks
Will I go to gaol?
Imprisonment is available on a first offence and it is imposed. It is not, however, the usual outcome for a driver with an otherwise reasonable record who drove once, a short distance, for a reason a magistrate can understand.
What moves a matter towards custody is the pattern rather than the single act: prior convictions for the same offence, driving repeatedly through the disqualification, driving badly while disqualified, or a disqualification that came from a serious matter in the first place. What moves it away is a short and explicable episode, a plea entered early, and evidence that the underlying problem has been dealt with.
A section 10 is not off the table
Section 203 of the Act removes the section 10 non conviction option where a person has had one applied within the last five years for an “applicable offence”. Disqualified driving is not on that list. Neither is any offence under section 53 or 54. So a driver who received a section 10 for a low range drink driving matter three years ago is not statutorily barred from receiving one now. Whether the court will exercise the discretion is a separate question, but the bar many people assume exists is not there.
Concurrent or consecutive matters
The court has a discretion whether the new disqualification runs concurrently with, or consecutively to, the one you were already serving. That discretion is exercised on submissions. If nobody makes them, consecutive is the default assumption, and this is how a six month disqualification becomes three years for a driver who is caught twice.
If you were disqualified for drink driving and have been drinking and driving since, the alcohol issue is the real matter before the court and should be addressed before the sentence hearing, not mentioned at it. That is the difference between a Community Correction Order and a gaol sentence more often than any submission we could make on the day.
Often overlooked
What police can do to your car
Repeat unauthorised driving is a sanctionable offence under Part 7.6 of the Act. Police can confiscate your number plates or impound the vehicle at the roadside, and they use it.
- Sanctions ordinarily run for three months, and up to six months where you were disqualified at the time of the offence.
- The trigger includes being convicted of driving while disqualified, or driving while never licensed, on two or more occasions in the previous five years.
- A disqualified driver caught exceeding the limit by more than 30km/h can also be sanctioned on the spot.
- If the same vehicle is used for another sanctionable offence within five years, it can be forfeited, then sold at auction, used for crash testing or destroyed.
- Where you are not the registered operator, Transport for NSW may instead send the owner a suspension warning notice, and a second offence in that vehicle can see its registration suspended for three months.
You can apply to the Local Court for the vehicle or the plates to be released, and the court weighs public safety, the likelihood of further offending and any extreme hardship to someone other than the registered operator. Even where release is ordered, the movement, towing and storage fees still have to be paid. Applications are time sensitive, so tell us about an impounded vehicle at the first conference rather than the week before court.
Your options
Defences
This charge is laid on the assumption that it cannot be contested. Often it can, and the most productive ground is almost always notice.
You were never properly notified
Where the disqualification was imposed in your absence, or where the dates were recalculated afterwards, you have to have been told. Section 54(2) is explicit about altered dates. Orders made in absentia, notices sent to an old address on the licence record, and notices returned undelivered are all common.
The disqualification had ended
Miscalculation is frequent where several disqualifications run consecutively, where a period was varied on appeal, or where an earlier conviction was annulled. The certificate the prosecution produces can be wrong, and it is worth checking against the court orders themselves.
Honest and reasonable mistake of fact
A genuine and reasonable belief in a state of facts which, if true, would mean you were entitled to drive. Believing the period had expired, or that an appeal had succeeded, or that a licence had been reissued. The belief has to be reasonable, so it needs support beyond your own account.
Not a road
The driving took place on land outside the statutory definition. Narrower than most people hope, but real on rural properties, enclosed worksites and private driveways that serve nobody but the occupier.
Identity
You were not the driver. Where the vehicle was not stopped, the case may rest entirely on an image or an inference from ownership. You are under no obligation to fill that gap for the prosecution.
Necessity or duress
You drove to avoid serious and immediate danger and the driving was a proportionate response. Rarely available and closely scrutinised, but a genuine medical emergency or a threat of violence has succeeded.
Even where the charge cannot be defended, the police fact sheet deserves close attention. Distance driven, the reason for driving and the manner of driving all bear directly on sentence, and the first draft routinely overstates all three. The court sentences on the facts you agree to.
Sentencing
What a court can order
Get advice before pleading guilty. A non conviction order is the only outcome that avoids a further disqualification entirely, and the court gives a discount for a plea entered early.
- Section 10(1)(a) dismissal. Guilty, but the charge is dismissed. No conviction, no penalty and no further disqualification.
- Conditional Release Order without conviction. A good behaviour bond of up to two years with no conviction recorded, supervised or unsupervised.
- Conviction with no other penalty. Under section 10A a conviction is recorded, and the disqualification follows, but no further penalty is imposed.
- Fine. Usually payable within 28 days, with time to pay available on application. Unpaid court fines lead back to an enforcement order and another suspension.
- Conditional Release Order with conviction. A bond following a conviction, with conditions such as supervision, treatment or abstinence.
- Community Correction Order. Up to three years, and may include community service, a curfew or supervision by Community Corrections.
- Intensive Correction Order. A sentence of imprisonment served in the community under strict supervision, with conditions such as home detention or electronic monitoring.
- Full time imprisonment. Up to six months on a first offence and twelve on a second or subsequent offence.
The Traffic Offender Program
The Traffic Offender Intervention Program is a court recognised road safety course with legislated content. Completing it before sentence demonstrates insight rather than asserting it, and on a charge that is fundamentally about disregarding a court order, that carries real weight. Check the provider is on the Local Court’s registered list. We refer clients to one near them as soon as we are engaged.
Your licence
Getting your licence back
Appealing the sentence to the District Court
If a Local Court has already convicted and disqualified you and the disqualification is longer than it should be, you can appeal the severity of the sentence to the District Court under section 11 of the Crimes (Appeal and Review) Act 2001. The appeal is as of right if lodged within 28 days, and by leave of the District Court for up to three months.
Two things make the 28 days matter more than people realise. Lodging within that period stays the disqualification, so you keep driving while the appeal is on foot. Lodge after it and there is no stay until the District Court grants one. The District Court can also impose a heavier sentence, though it must give a warning before doing so, and it still cannot go below the statutory minimum disqualification. This is a different thing from appealing a suspension, which is covered on our page about licence suspension appeals.
Removing a disqualification early
Since 2017 a disqualified driver can apply to the Local Court to have all outstanding disqualifications removed. You must have been free of any driving offence for the relevant offence free period, which is four years where a disqualification arose from a serious offence and two years in other cases. The court then decides whether removal is appropriate, weighing public safety, your complete driving record, and your family and employment obligations. If an application is refused, another cannot be made for twelve months. See removing a licence disqualification.
Some convictions make you permanently ineligible
Under section 221D, a person convicted at any time of a never eligible offence cannot apply at all, whether or not a disqualification was imposed for it. These are the offences involving death or grievous bodily harm caused by driving, predatory and menacing driving, and failing to stop and assist. No waiting period cures it.
Habitual traffic offender declarations are gone
The scheme was abolished on 28 October 2017 and no new declaration can be made. Old declarations remain in force until served, and that is precisely the situation the removal scheme was built for. If you are carrying a disqualification running into the 2030s because of one, it is worth a conversation.
There is no work licence in NSW
Despite what you may have been told, New South Wales has no work licence, restricted licence or hardship licence. If you are disqualified you cannot drive at all, for any reason, including to work. That is why the sentence hearing matters as much as it does.
Other consequences worth knowing
- A conviction sits on your criminal record and can affect employment, professional registration and travel.
- Your insurer may decline a claim if you were not authorised to drive at the time of a collision, which can leave you personally exposed for the other party’s damage.
- Employers of professional drivers are notified through routine licence checks whether or not you disclose it.
Why Catron Simmons
Why drivers choose us
We test the notice first
With a background in prosecution and in highway patrol, we know how disqualification orders are recorded, recalculated and served. That is where we start, because it is where this charge is most often defective.
Second offence allegations get checked
Police allege second offences on convictions that fall outside the five years or are not of a qualifying kind. Correcting it halves the maximum penalty and the disqualification before anything else is argued.
We make the concurrency submission
Whether the new disqualification runs alongside or on top of the old one is discretionary, and it is the single largest practical difference to a client’s life. It does not get raised unless someone raises it.
You deal with a principal
We are a boutique firm. You talk to the solicitor who will appear for you, not a call centre, and we are contactable outside business hours.
Common questions
Driving while disqualified: your questions answered
Will I go to gaol for driving while disqualified in NSW?
Imprisonment is available, up to six months on a first offence and twelve months on a second or subsequent offence, and it is imposed in appropriate cases. It is not the usual outcome for a driver with a reasonable record who drove once for an explicable reason. Custody becomes a real risk with prior convictions for the same offence, repeated driving through the disqualification, or where the original disqualification came from a serious matter.
What is the difference between disqualified and suspended?
A disqualification is imposed by a court, usually as part of a sentence. A suspension is imposed administratively by Transport for NSW, or on the spot by police, for demerit points, speeding or unpaid fines. They are separate offences under section 54 with separate elements. Disqualified driving is treated more seriously because it is a breach of a court order.
I did not know I was disqualified. Is that a defence?
It can be. The prosecution must prove you knew or ought to have known. Where the order was made in your absence, or the dates were recalculated afterwards without written notice from Transport for NSW, section 54(2) is directly in point. Notices sent to a superseded address or returned undelivered are common. Do not concede knowledge to police, and obtain your driving record before entering a plea.
Can I avoid a further disqualification?
Only through a non conviction order, being a section 10(1)(a) dismissal or a Conditional Release Order without conviction. If a conviction is recorded the automatic disqualification of six months follows, and while the court can reduce it to the three month minimum it cannot remove it. That is why the work goes into the plea in mitigation.
Does a previous section 10 stop me getting another one?
Not for this charge. Section 203 of the Road Transport Act removes the option where a section 10 has been applied within five years for an applicable offence, and offences under sections 53 and 54 are not on that list. A section 10 for a drink driving matter two years ago is therefore not a statutory bar. Whether the court exercises the discretion is another matter, but the bar many people assume exists does not apply here.
Does the new disqualification start now or after the old one?
That is a matter for the court’s discretion, and it can order the new disqualification to run concurrently with or consecutively to the one you are serving. Consecutive is the practical default if nobody makes submissions about it, which is how a short disqualification turns into a very long one for a driver caught twice.
Can police take my car for driving while disqualified?
Yes. Repeat unauthorised driving is a sanctionable offence, so police can confiscate the number plates or impound the vehicle at the roadside, ordinarily for three months and up to six months where you were disqualified at the time. A further sanctionable offence in the same vehicle within five years can lead to forfeiture and sale. The Local Court can order release, though towing and storage fees remain payable.
Can I appeal the disqualification the court gave me?
Yes. You can appeal the severity of the sentence to the District Court, as of right within 28 days of the Local Court sentence and by leave for up to three months. Lodging within 28 days stays the disqualification, so you can keep driving while the appeal is pending. After 28 days there is no stay until the District Court grants one. The District Court cannot order less than the statutory minimum, and it can impose a heavier sentence, although it must warn you first.
Can I apply to have my disqualification removed early?
You may be able to, once you have gone four years without a driving offence, or two years where the disqualification did not arise from a serious offence. Convictions for offences causing death or grievous bodily harm by driving, predatory or menacing driving, or failing to stop and assist make a person permanently ineligible. A refused application cannot be remade for twelve months, so it is worth preparing properly the first time.
Do I have to go to court?
Yes. This offence is not dealt with by penalty notice. You can send in a written notice of pleading, but we do not recommend it, because the magistrate would have only the police fact sheet and your record, with nothing about you or your circumstances, and the penalty is usually heavier as a result. If you cannot attend, we can appear for you.
Keep reading
Related traffic law pages
Get started
Charged with driving while disqualified? Let’s talk today.
Send us your court attendance notice, the police fact sheet and the orders from the matter that disqualified you. We will tell you whether the charge can be defended, whether the second offence allegation stands up, and what your realistic exposure is.