No Conviction for Driving Disqualified

No conviction recorded for driving disqualified in the Magistrates Court after persuading the Court of good reasons under section 97 of the Sentencing Act 2017 (SA).

Background

Our client was charged with driving disqualified after travelling a short distance to the grocery store after work. They drove for reasons that the Prosecution submitted were contumacious circumstances because they knew they were disqualified due to a previous demerit point disqualification and signed a notice of disqualification.

Our traffic lawyers in Adelaide entered an early guilty plea in the Elizabeth Magistrates Court and were able to persuade the Court of good reasons to discharge without conviction upon his entry into a good behaviour bond pursuant to section 97 of the Sentencing Act 2017 (SA).

The client’s consistent position was that they drove out of starvation and were unable to attend the grocery store by foot in time before closing. Our client was newly married with multiple young dependent children and worked a physically demanding job while residing in South Australia on a subclass 462 visa to support their family overseas.

As such, the consequences of a conviction would have a direct impact on their character and ability to remain in Australia upon the expiration of their current Visa. Naturally, our client was very worried about going to prison for disqualified driving.

What is driving disqualified?

Under section 91 of the Motor Vehicles Act 1959 (SA), a person must not drive a motor vehicle on a road in South Australia or elsewhere in Australia while disqualified.

This offence is also often charged when driver’s believe they are driving with an expired licence, only to be surprised to learn they are driving unlicensed or unauthorised only to be facing charges section 74 for driving unlicensed if their licence lapsed or was never held.

How to avoid a conviction for driving disqualified in SA

The Sentencing Act 2017 (SA) and case law sets out factors that are relevant to the exercise of the court’s discretion which may include if the court is persuaded that the defendant is unlikely to re-offend and there are good reasons, such as the offence being trifling or other extenuating circumstances, to refrain from recording a conviction. The discretion permits the Court to record no conviction for driving disqualified (and other offences) via:

1. Section 24 to impose a penalty without conviction; or
2. Section 97 to discharge a defendant without conviction on entering into a good behaviour bond.

There must be a “good reason” not to record a conviction

The meaning of ‘good reason’ in Stocks v The King [2023] SASCA 48 has been held to include:

• Matters such as the character of the defendant the mental condition of the defendant.
• The existence of any extenuating circumstances.
• Including the fact that the offending is at the lowest end of the scale of seriousness.
• The causal connection between the appellant’s compromised mental health and the offending.
• Time served in custody.
• Unusual circumstances of this case.

In R v Yousef [2005] SASC 203:

• The Judge accepted that the respondent’s conduct, while serious, was an aberration which was unlikely to be repeated.
• He accepted that the appellant’s conduct was not premeditated.
• The appellant had pleaded guilty to the offence at an early stage and had expressed contrition about his conduct.
• The salutary effect which participation in the criminal justice system has had on him.
• The Judge was told that the result of the court appearance may have some effect on the continuation of the appellant’s licence as a taxi driver.
• The licensing authority had deferred a decision in that respect until the sentencing was concluded.
• They demonstrated that the respondent was a mature person of good character, seeking to establish himself and his family in Australia, who had made a serious mistake but one which was unlikely to be repeated.

In McKinnon v Police [2018] SASC 163:

• Section 97 of the Sentencing Act 2017 (SA) is a merciful provision that has as its primary focus the rehabilitation of the offender.
• It is in the rehabilitative prospects of the offender that good reason will generally be found to proceed in the manner permitted by s 97.

Penalty without conviction

If the Court proposes to impose a fine or community service and is satisfied there is good reason not to record a conviction (having regard to character, antecedents and extenuating circumstances), it may impose a penalty without recording a conviction under section 24 of the Sentencing Act 2017 (SA).

This allows them to consider the circumstances of the individual case, and to decline to record a conviction (if appropriate) to allow an offender to avoid the adverse consequences of a conviction.

Read our comprehensive guide on avoiding a conviction in South Australia.

Here, driving occurred in circumstances of desperation and warranted a merciful approach despite driving with an awareness of the disqualification order. We persuaded the Court that our client drove for reasons that as a matter of humanity were understandable, although foolish – and that the “punishment does not fit the crime”.

Our No Conviction Strategy

We mapped out the distance that our client drove (a matter of minutes) and provided evidence from their employer to explain the physically demanding nature of that line of work. We obtained statements from our client and his family members about the extent of the support that he provides.

Members of the community also provided character references that attested to his good character and we relied placed case law before the Court explaining how the Federal Court views convictions for serious traffic offences when assessing a visa applicant’s character.

Our sentencing submissions also provided that any further offence that was committed would automatically be subject to a maximum three (3) year term of imprisonment for a subsequent offence and that a good behaviour bond would also hang a proverbial “Sword of Damocles” over our client’s head.

For these reasons, including our client’s age, personal circumstances, otherwise excellent character and the very low risk of further reoffending, the Court was persuaded that good reasons existed not to record a conviction for driving with a disqualified or suspended licence.

Outcome

• Early guilty, letter of apology, and completion of an online driver training course to demonstrate genuine remorse.
• No conviction recorded under section 97 of the Sentencing Act 2017 (SA).
• Significant mitigation and low risk of reoffending.
• Disproportionate impact of a conviction.

The client avoided a criminal conviction and continues to live and prosper in South Australia to this day. The only financial impost was a small court fee.

Speak with the best traffic lawyers for driving disqualified

Contact Talon Legal today to discuss your case for free and without obligation:

1. Call now (08) 7094 2021 or book your free case review online.
2. Understand non-conviction outcomes: Section 24 Sentencing Act guide.
3. Learn about good behaviour bonds: Section 97 Sentencing Act guide.
4. Learn more about traffic offences: Driving disqualified & Drivers Licence Offences.