Sentencing Outcomes, Defences, and Suspension of Imprisonment
When a driver in South Australia is charged with driving disqualified, the possibility of imprisonment is significant, particularly if it is a repeat or contumacious offence.
However, courts also have the discretion to suspend a prison sentence or impose a penalty without conviction under certain conditions.
In this article, we explore the principles that inform suspending imprisonment for driving disqualified, how the law has changed, and the “good reason” test that courts apply.
1. From “Exceptional Circumstances” to “Any Good Reason”
Traditionally, authorities like Eldridge v Bates (1989) 51 SASR 532 and Coombe v Douris (1987) 47 SASR 324 suggested that a prison sentence for driving disqualified could only be suspended in truly exceptional circumstances. However, the majority of the Full Court in Police v Cadd (1997) 69 SASR 150 adjusted this position, clarifying that suspension decisions should be made under ordinary sentencing principles.
Under the updated approach, courts look for any good reason to suspend, rather than a narrow test confined to emergencies or extremely rare scenarios. While this shift grants courts a broader discretion, it does not guarantee leniency, particularly for repeat offenders or those demonstrating a dismissive attitude toward disqualification orders. This is what is referred to as contumacious driving.
2. Factors in Favour of Suspending a Sentence
Personal Circumstances of the Defendant
Courts often focus on how imprisonment might disproportionately harm the individual or their dependants. As Lander J observed in Woodward v Police [2000] SASC 246, circumstances personal to the offender carry significant weight when considering suspension.
Excessive Hardship
If going to jail would create extreme hardship, for example, a unique family situation or a scenario where the consequences of imprisonment far outweigh the gravity of the offence, this might justify suspension. In Police v Cadd, Justice Debelle noted that losing one’s employment (and, by extension, livelihood) could, in some cases, amount to undue hardship. Although that opinion was not criticised by the Full Court, it remains subject to the usual sentencing principles and the seriousness of the offence.
Genuine Emergency or Necessity
Though not a strict requirement for “exceptional circumstances” credible emergency-based scenarios or similar compelling reasons can tip the balance in favour of a suspended sentence. Courts still carefully scrutinize claims of necessity to ensure they are not merely convenient excuses.
3. Factors Weighing Against Suspension
Contumacious Driving
If the court finds the driver’s breach contumacious, being an outright defiance of a disqualification order, this strongly militates against suspending the prison term. Cases such as French v Police and Van Lammeren v Police (1998) 28 MVR 549 confirm that contumacy is a powerful aggravating factor. Nonetheless, it does not make suspension impossible if other mitigating considerations significantly outweigh it (Police v Castelluzzo (1997) 193 LSJS 13).
Repeat Offending
A second or subsequent disqualified driving offence often signals an ingrained disregard for the law, making courts hesitant to suspend. As decisions like Police v Summers (SASC, Perry J, 22 December 1997) illustrate, it is “rare” for a second offence to attract a fully suspended sentence. Later cases (including Nash v Police [2009] SASC 112 and Zafry v Police [2009] SASC 191) reinforce this position.
Non-Emergency or Convenience
Driving simply because it was “inconvenient not to” or because the offender disregarded alternative transport options is given little sympathy. Courts treat these scenarios as evidence of minimal respect for the disqualification order, tilting away from the leniency of suspension.
4. What Counts as “Exceptional Circumstances” Now?
Although Police v Cadd effectively broadened the standard from “exceptional” to “any good reason,” the concept of truly exceptional circumstances still appears in case law, particularly where the facts are so unique that immediate imprisonment seems unduly harsh. Examples below (which should be read in light of Police v Cadd) include:
Medical Emergencies or Practical Unavoidability
- Humphries v Henderson (1989) 150 LSJS 278 – Taking a very sick child to hospital.
- Brown v Fuss (1988) 47 SASR 344 – Care obligations for multiple children, including one who is blind and epileptic.
Mistaken Belief of Disqualification’s Expiry
- Morcom v Police [2017] SASC 147, the defendant was informed by Service SA that his licence was not suspended. Relying on this information, he drove, believing he was permitted to do so. The court accepted his honest and reasonable belief as a mistake of fact, providing a valid defence against the charge of driving while disqualified.
Nevertheless, “exceptional circumstances” cannot be a mere claim of inconvenience or mild hardship; courts consistently require strong supporting evidence. Youth alone, for instance, is not enough (Elridge v Bates). Nor is being late to work (Vanderputt v Higgins), or lacking a relief driver.
Will I Go to Jail For Disqualified Driving in Adelaide?
Although imprisonment is a frequent outcome for driving disqualified, particularly for repeat or defiant offenders, courts may suspend a prison term if there is “any good reason”. Significant personal circumstances, genuine emergencies, or evidence of disproportionate hardship may tilt the scale toward suspension.
Yet the more serious or contumacious the offence, the less likely a court is to spare an offender from actual custody. However, no two cases are alike. If you are navigating a driving disqualified charge and are concerned about imprisonment, seeking professional advice is essential.
Charged With Driving Disqualified?
Our experienced Adelaide traffic lawyers can quickly assess whether a suspended sentence is realistically achievable.
You owe it to yourself to get the best defence and we will help you to present the strongest possible case to the court.
Visit our comprehensive Driving While Disqualified page for a deeper overview or book a free 30 minute online consultation.
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Talon Legal has a proven track record of protecting South Australian’s from terms of imprisonment for driving disqualified, even for repeat offences.
Book a free 30 minute online consultation if you are charged with driving disqualified. Otherwise, you may face up to 12 months of imprisonment for a first offence, or up to 3 years of imprisonment for a subsequent offence.
