Driving Disqualified – The Risk of Gaol


The ever increasing penalties for driving offences in South Australia mean that there are unprecedented numbers of drivers who receive a disqualification for some period of time. What many people do not know however, is that even in standard, first offence, driving disqualified matters the starting point for penalty is a sentence of immediate imprisonment. Immediate imprisonment differs from a sentence of suspended imprisonment in that a defendant will immediately be taken to gaol to serve out that term. It is regrettable that many people will continue to drive under a disqualification thinking that the offending is considered minor and would likely be punished by fine or further disqualification. The South Australian Court of Criminal Appeal has long reinforced Parliament’s intention that driving while disqualified by an order of the Court will attract, even for a first offender, a term of immediate imprisonment.

In circumstance, for example, where a defendant had previously been disqualified by the Magistrates Court for an offence such as drink driving and subsequently drives during that period of disqualification and is apprehended, then that offending will be considered contumacious. The word contumacious, in a juridical context, refers to a defendant stubbornly, wilfully or contemptuously being disobedient to the authority of the Court. Given the propensity of certain defendants to continually and wilfully ignore disqualification and drive in any event, the South Australia Parliament has determined that the punishment for behaving contumacious towards our Courts must be severe enough to provide a true deterrent to ignoring orders of the Court.

What is perhaps more regrettable is that often a defendant, being unaware or ignorant of the serious risk of immediate imprisonment, will plead guilty without the advice of a solicitor and without representation to make submissions in mitigation and as a consequence be surprised when they, despite being of otherwise good character and having no serious antecedent history, are sent to gaol. While, as we have discussed, the Criminal Court of Appeal has held that immediate term of imprisonment will be the starting point for contumacious disqualification offences it does not mean that every defendant will serve an immediate term of imprisonment. In the first instance a defence may be available on the facts or there may be insufficient evidence for the Police to obtain a conviction. In the second instance the circumstances pertaining to either the offending or the defendant personally may persuade the court to impose a suspended sentence, that is one that does not need to be served immediately but is rather subject to the defendant entering into a bound to be a good behaviour, or alternatively some other lesser sentence entirely including a simple good behaviour bound or a monetary penalty. The same factors that will militate in favour of the imposition of a suspended sentence or lesser penalty under the Sentencing Act will apply equally in dealing with contumacious drive disqualified offences. Generally the Court will have regard to factors such as youth, contrition an early plea of guilty and a variety of other matters particular when determining a whether a sentence of imprisonment should be served immediately or suspended pursuant to a bond.

If you require advice regarding a drive disqualified offence you can contact Culshaw Miller Criminal Lawyers on 08 8464 0033, if you have been arrested or require immediate advice or attendance of a solicitor call us on 0418 421 153, alternatively make an appointment now.