No Conviction for Driving While Disqualified Two Days Into a Demerit Disqualification
Our client drove two days into a demerit disqualification after misreading the notice, and the Christies Beach Magistrates Court discharged him on a good behaviour bond without recording a conviction.
He pleaded guilty to driving while disqualified under section 91(5a) of the Motor Vehicles Act 1959 (SA), which carries a maximum penalty of 12 months imprisonment for a first offence. We asked the court to discharge him under section 97 of the Sentencing Act 2017 (SA) without recording a conviction, and it did so.
Outcome at a glance
- Guilty plea to driving while disqualified under section 91(5a) of the Motor Vehicles Act 1959 (SA), his first offence of that kind
- The driving happened two days after a demerit disqualification began
- Discharged without conviction on a good behaviour bond under section 97 of the Sentencing Act 2017 (SA)
- No imprisonment
Background
Our client had incurred enough demerit points to be disqualified, and a notice of disqualification was served on him personally. The notice told him of his right to elect, instead of serving the disqualification, to accept a condition on his licence requiring him to be of good behaviour for 12 months (section 98BE of the Motor Vehicles Act).
He misread the notice and believed he still had time to deal with it. He was wrong. The disqualification began, and two days later he drove.
Police stopped the car for a minor vehicle defect. No poor driving, alcohol, drugs, collision, pursuit or dishonesty was alleged.
At the roadside he expressed surprise and acknowledged that he had received the notice. He accepted that he must have misread it. He was polite and cooperative and made no attempt to evade police or hide who he was.
The prosecution facts recorded that he had received the notice and knew that driving while disqualified was an offence. They also recorded his belief that he had more time to contest or deal with the notice.
The law: the offence and section 97
Section 91(5a) makes it an offence to drive a motor vehicle on a road while disqualified from holding or obtaining a licence. The maximum penalty is 12 months imprisonment for a first offence and 3 years for a subsequent offence.
A demerit disqualification counts. Section 91 applies to disqualifications imposed under the Motor Vehicles Act or any other Act (section 91(1)), and a demerit disqualification arises under that Act (sections 98BC and 98BD).
Section 97(1) of the Sentencing Act allows a court that finds a person guilty to discharge them, with or without recording a conviction, on condition that they enter into a bond to be of good behaviour, if it thinks that good reason exists for doing so. If the terms of the bond require it, a person who breaches a condition must appear before the court and can then be sentenced, or convicted and sentenced (section 97(1)(c) and (3)).
Why imprisonment was a real risk
Driving while disqualified is imprisonable even for a first offence. In Halsey v Police [2026] SASC 38, the Supreme Court said that the presence of contumacy does not create a binary rule about imprisonment. Where offending flouts a disqualification, though, the need for personal and general deterrence is heightened and imprisonment may be appropriate, and imprisonment should be considered even for a first offender ([30]).
The judgment also quotes the Court of Appeal’s statement in Measures v The Queen [2021] SASCA 82 that, in most cases, absent a compelling reason for driving, the offending will usually be regarded as contumacious ([30]).
The word is used in its legal sense. In Police v Cadd (1997) 69 SASR 150, Mullighan J described it as something more than the intention to drive disqualified that the charge requires: committing the offence “with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it” (quoted in Halsey at [27]).
The driver in Halsey knew he was disqualified, obtained a renewed licence card and was found to have feigned ignorance of the disqualification ([34], [39]). It was his first offence of driving while disqualified, although he had a record of other driving offences ([36]). The Court reduced his three-month sentence but imposed 21 days imprisonment, neither suspended nor to be served on home detention ([41] to [47]).
Our approach
We accepted from the start that the offence was serious and that general deterrence had a proper role. The plea did not suggest that a disqualification arising from demerit points mattered less than one imposed by a court.
The submission was about what our client understood on the day. He knew that a disqualification process was under way, but he did not appreciate that the disqualification had already begun. The defence characterised the driving as serious carelessness and submitted that it lacked the total disregard of a disqualification that marks contumacious driving.
The timing supported that account. The driving happened two days into the disqualification, at the very start of the period, and there was no suggestion of repeated driving.
So did his own words. The explanation put to the court at sentence was the one he gave police at the roadside, where he acknowledged receiving the notice and accepted that he must have misread it.
The court had a written apology and character material. The apology did not try to excuse the offence. It accepted that he should have read the notice properly and set out what he had done since to understand his licence obligations.
He ran his own business with staff who depended on it and had caring responsibilities for his children. The submissions did not suggest that this placed him above the law. They used it to show an otherwise responsible life and a strong incentive never to come back before the court.
The last question was whether a recorded conviction was needed. We submitted that a good behaviour bond would mark the seriousness of the offence and deter him personally, without the lasting effect of a conviction.
Outcome
The Christies Beach Magistrates Court dealt with our client under section 97 of the Sentencing Act 2017 (SA). It did not record a conviction and discharged him on a good behaviour bond. No sentence of imprisonment was imposed.
A section 97 discharge is not an acquittal. The guilty plea stands, and the bond is an enforceable obligation to be of good behaviour for its term.
Key takeaways
A demerit disqualification is a disqualification like any other for section 91. Driving during it is an offence under section 91(5a), with a maximum of 12 months imprisonment for a first offence.
The good behaviour election has a deadline. Under section 98BE(2), a licence holder who wants to make it must do so within 21 days of the day specified in the notice of disqualification, or within 28 days with the Registrar’s permission. A driver who wants that option needs to work out the dates from the notice when it arrives.
What the driver understood matters to sentence. Halsey says that where offending flouts a disqualification, imprisonment should be considered even for a first offender. A submission of genuine misunderstanding needs evidence that it was genuine, and here that evidence was what our client told police at the roadside.
Section 97 requires the court to think that good reason exists. Here the submission rested on how the offence came about, supported by his candour at the roadside and his written apology.
Related driving while disqualified results
- No conviction for driving while disqualified after a short drive
- No conviction recorded for driving disqualified
- No imprisonment for subsequent drive disqualified and drug driving
- Suspended sentence for a third driving while disqualified offence
Speak with Talon Legal about a driving while disqualified charge
If you have been charged with driving while disqualified, or you have a demerit disqualification notice and are unsure of its dates, talk to us before you drive and before you enter a plea. Book a same-day free 30-minute consultation or call (08) 7094 2021 to speak with a senior traffic lawyer, or read our guide to a section 97 good behaviour bond without conviction.
