Suspended Sentence for Third Driving While Disqualified Offence

Third Drive Disqualified Offence Case Study

Talon Legal represented a client in the Elizabeth Magistrates Court who was charged with a subsequent offence of driving while disqualified. We persuaded the Court that good reason existed not to impose a term of imprisonment upon our client entering into a suspended sentence bond section 96 of the Sentencing Act 2017 (SA).

Talon Legal represented a client in the Elizabeth Magistrates Court who was charged with a further offence of driving while disqualified. This was not a first offence.

Our client had two previous convictions for driving while disqualified, making this his third drive-disqualified matter. The maximum penalty for a subsequent offence is serious, and was recently increased from one (1) year of imprisonment to three (3) years of imprisonment. Given our client’s previous driving history and his awareness of the disqualification, imprisonment was plainly open.

After negotiations with the prosecution before Court, the prosecution accepted that it was open for the Court to find good reason to suspend any sentence of imprisonment.

The Court ultimately imposed a sentence of imprisonment of 6 weeks and 6 days, but wholly suspended that sentence on an 18-month good behaviour bond in the amount of $200. A conviction was recorded.

The result was significant because our client avoided immediate custody despite multiple prior drive-disqualified offences despite the current offence being contumacious driving. Naturally, our client was very worried about going to prison for disqualified driving.

Background

Our client was charged with driving while disqualified. He had two previous convictions for driving while disqualified. Both earlier offences were from January 2011 and occurred only days apart.

That made the current matter very serious.

The defence could not realistically approach the matter by pretending imprisonment was not open. It was. The better and more honest strategy was to accept that a sentence of imprisonment was likely, then focus the Court on whether there was good reason to suspend that sentence.

The case therefore turned on one central question:

Should this client be sent to prison immediately, or could the Court properly impose imprisonment and suspend it on a lengthy good behaviour bond?

Why Immediate Imprisonment Was a Real Risk

Driving while disqualified is treated seriously in South Australia because it involves driving in the face of a legal prohibition.

The risk becomes sharper where the person has prior drive-disqualified convictions.

In this case, our client was not asking the Court to treat the offence as minor. It was his third drive-disqualified matter. He knew he was disqualified. There was no proper basis to minimise the seriousness of the offending.

That made credibility critical. The submission had to be direct:

• imprisonment was open;
• the offending was serious;
• the prior history could not be ignored;
• the client accepted responsibility; and
• the real issue was suspension.

That approach allowed the defence to focus on what had changed in our client’s life since the earlier offending.

The Strategy

1. Accept that imprisonment was open

In serious drive-disqualified matters, a plea that minimises the obvious risk can damage the client’s position.

The Court needed to know that our client understood the seriousness of the charge.

The defence accepted that the matter attracted a sentence of imprisonment. The submission then moved to the real issue: whether that sentence should be suspended.

This was important because a suspended sentence is not the same as avoiding punishment.

A suspended sentence is still a sentence of imprisonment. If the bond is breached, the client can be brought back before the Court and ordered to serve the sentence.

2. Show that the prior history was old

The prior drive-disqualified convictions were serious, but they were also old. They arose from offending nearly 15 years before the present offence. That distinction mattered.

A person with repeated, recent, close-in-time drive-disqualified offending is in a different position from someone whose similar priors are many years old and whose life has materially changed since then.

The submission was not that the old priors should be ignored. They could not be ignored.

The submission was that the Court should consider what had happened in the intervening years

3. The Rehabilitation Argument

The strongest part of the case was rehabilitation. Our client’s earlier life had been marked by serious instability, trauma, drug use and offending. By the time of sentence, however, the picture was different. The Court was asked to consider that our client was no longer living chaotically. He had rebuilt his life around work, family and responsibility.

He had:

• formed a stable long-term relationship;
• become a father;
• remained drug-free for a substantial period;
• maintained stable employment;
• progressed into a more responsible role at work;
• supported his household financially;
• developed family structures that operated as guardrails against further offending; and
• provided material to the Court supporting the impact immediate custody would have on his partner and children.

The submission was that immediate imprisonment would not merely punish him. It would risk destabilising the very things that were keeping him stable.

That was the core of the plea.

4. Family and Employment Factors

The Court was told that our client’s household depended on him. His partner and children were central to his rehabilitation. They were not merely hardship factors. They were protective factors.

His work was also important. He had moved from an unstable earlier history into consistent employment and responsibility. The Court was asked to consider that stable employment was part of what reduced the risk of further offending.

Immediate custody would have placed that stability at risk. That did not excuse the offending. It did not reduce the seriousness of driving while disqualified.

But it was relevant to the sentencing question:

Would immediate imprisonment best protect the community, or would a suspended sentence better preserve the structures that were preventing reoffending?

5. The Reason for Driving

The offending occurred in the context of a family outing with his children. That was not advanced as an excuse.

A person who is disqualified from driving cannot lawfully drive simply because they want to take their children somewhere.

But the reason for driving still helped the Court understand the character of the offending.

This was not a case of police pursuit, dangerous driving, evasion, commercial offending, alcohol-fuelled driving or drug-impaired driving.

It was a serious and foolish decision made by a person who knew he should not have driven, but whose broader life had otherwise changed significantly since his earlier offending.

Negotiations With Prosecution

Before the matter was heard, Talon Legal engaged with the prosecution about the appropriate sentencing range.  The prosecution ultimately accepted that it was open for the Court to find good reason to suspend any sentence of imprisonment.

However, that did not bind the Court. The Magistrate still had to be satisfied that suspension was appropriate.

But the prosecution position was important. It meant the Court was not being asked to impose a suspended sentence in the face of a prosecution submission that immediate custody was required.

This is one reason early preparation and working with a skilled advocate matters. In serious criminal or traffic offence matters, the work done before Court can be as important as the submissions made in Court.

Sentencing Outcome

The Court imposed a sentence of imprisonment of 1 month and 12 days. That reflected the seriousness of the offending.

However, the Court wholly suspended that sentence on an 18-month good behaviour bond in the amount of $200.

A conviction was recorded. The result meant our client avoided immediate custody, but remained under a serious Court order.

If he breaches the bond, he risks being brought back before the Court and required to serve the sentence of imprisonment.

Why This Was a Strong Result

This was a strong result because the Court did not simply impose a small penalty and move on. The Court imposed imprisonment, but suspended it. That outcome achieved several sentencing purposes:

• it marked the seriousness of a third drive-disqualified offence;
• it imposed a real custodial consequence if the bond is breached;
• it preserved the client’s employment and family stability;
• it recognised the client’s rehabilitation;
• it avoided unnecessary harm to his partner and children;
• it maintained deterrence through a lengthy bond; and
• it gave the client a final opportunity to remain stable in the community.

The sentence was not lenient in the casual sense. It was a sentence of imprisonment hanging over him for 18 months.

What Helped the Court Find Good Reason to Suspend?

The good reason to suspend was cumulative. No single factor persuaded the Court to spare our client from serving an immediate term of imprisonment. Here, the Court was asked to consider:

• the age of the prior drive-disqualified offences;
• the long gap since the earlier similar offending;
• the client’s guilty plea;
• his acceptance of responsibility;
• his rehabilitation from a chaotic earlier life;
• his stable relationship;
• his two children;
• the practical dependence of his household on him;
• his stable employment;
• his progression into a responsible work role;
• his long period away from drug use;
• the hardship immediate custody would cause to innocent family members;
• the risk that custody would destabilise rehabilitation;
• the prosecution’s acceptance that suspension was open; and
• the availability of a lengthy good behaviour bond.

Taken together, those matters allowed the Court to impose imprisonment but suspend it.

Key Takeaways

1. A third drive-disqualified offence will usually lead to prison

A person charged with a third driving while disqualified offence should assume imprisonment is a real risk. The Court will take prior history seriously. The starting point, even for a first offence, is a term of imprisonment. You should not operate under any misunderstanding as to how serious driving whilst disqualified is.

2. Old prior offences can still matter, but so can the gap

Old prior offences do not disappear. They may still make the matter a subsequent offence. However, the age of the priors and what has happened since may be important. Long-term rehabilitation, stable employment and family responsibility can materially affect sentence.

3. A suspended sentence is still imprisonment

Suspended sentences have bee criticised as being a “soft” sentencing outcome. It is not. A suspended sentence, is a term of imprisonment that hangs over a person’s head until the expiration of the good behavour bond. Its deterrent effect is ongoing and does not end at Court. If the bond is breached, the person may be required to serve the sentence.

4. Rehabilitation must be real and evidenced

It is not enough to say that a person has changed. The Court needs material showing what has changed and why those changes reduce risk.

In this case, the plea focused on employment, family, abstinence from drugs, stability, responsibility and the practical consequences immediate custody would have on innocent third parties.

5. Negotiation with the Prosecution matters

The prosecution’s position is not determinative, but it can be important. Where the prosecution accepts that suspension is open, the Court may have an easier time considering a suspended sentence, provided the facts support it.

Charged With Driving While Disqualified Again?

Driving while disqualified is serious. A second, third or later offence will result in a prison sentence. Whether it is actually served, depends on the circumstances of your case and the quality of your representation. Your outcome may depend on:

• your prior history;
• how old the prior matters are;
• whether you knew you were disqualified;
• why you were driving;
• whether there was poor driving, alcohol, drugs, evasion or collision;
• whether you pleaded guilty early;
• your work and family circumstances;
• your rehabilitation;
• the prosecution position; and
• the supporting material placed before the Court.

Talon Legal frequently represents clients in serious traffic offences throughout the Magistrates Court in South Australia, including:

• driving while disqualified;
• driving unlicensed;
• drug driving;
• drink driving;
• licence appeals;
• dangerous driving; and
• driving without due care.

If you have been charged with driving while disqualified, especially after prior offences, get advice before entering a plea.

Serving All of Adelaide & Beyond

If you have been charged with a serious traffic offence, get advice from the best traffic lawyers before entering a plea.

Talon Legal regularly appears in all South Australian courts and surrounding jurisdictions, including:

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.

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