Case facts

Our client had a significant traffic record and admittedly did not have a strong need for a licence. His driver’s licence was suspended for six months by the Roads and Maritime Services (RMS) from Oct. 21, 2011 until April 20,  2012. With only three days to go on the suspended licence period, he was caught driving and issued a court attendance notice for driving whilst suspended.

Suspended driving carries potential penalties of up to 12 months imprisonment, disqualification for a mandatory minimum of 12 months and a fine of up to $2,200 for a first offence within a five year period. The court attendance notice required his attendance at the Parramatta Local Court. He forgot to go to court and the matter was dealt with ex-parte.

He was convicted in his absence and fined $750 and disqualified for 12 months. An arrest warrant should have issued so that the client was able to be disqualified and made aware of the disqualification. He received a notice of penalty in the mail from the court in the next couple of days. This notice only mentioned that he was convicted and fined at court; it did not mention that he was disqualified. He had not received any legal advice that he would be disqualified and therefore had no knowledge that he was disqualified.

A week later, he had a car accident. Police checked his licence and gave him a ticket for negligent driving. No mention was made by them of the fact that he had been disqualified.

Months later, he was pulled over for a random breath test (RBT). A check of his licence by police showed that he had been disqualified. He told police that he did not attend court and was not aware of the disqualification. He was issued with a court attendance notice for driving whilst disqualified. This offence, upon conviction, would technically be the second offence within a five year period and therefore carry more substantial penalties, which include a prison sentence of up to two years, a maximum fine of $5,500 and an automatic mandatory minimum disqualification period of two years.

The accused went to Burwood Local Court but did not have legal representation. Given the potential penalties that he was facing, this was not an ideal situation. He was convicted, fined $1,000 with $83 court costs, and disqualified from driving for a further period of two years.


The appeal

The client lodged an appeal against conviction and severity on the basis that he had an honest and reasonable belief that he was not disqualified. There was no mention on the court penalty notice from the original matter at Parramatta Local Court; there was no mention when he was fined for negligent driving after having had the accident; and there was no mention on a subsequent check that he made of RMS regarding his points and the status of his licence. Finally, he sought legal advice.

Although he may have had an honest belief that he was not disqualified, it was not reasonable as he failed to make inquiries with Parramatta Local Court after he forgot to attend court. His failure to make that inquiry meant that his honest belief was not reasonable. Accordingly, he would not succeed with the defence of “honest and reasonable mistake of fact”. The conviction appeal was therefore abandoned, and all efforts were focused upon the severity appeal with a view to having the conviction overturned.

When the matter came before the Parramatta District Court, the client gave evidence. The Judge accepted that the client had an honest belief, and as expected, indicated that it was not a reasonable belief that would entitle him to be found not guilty due to his failure to actively inquire as to the outcome of the previous proceedings. His Honour acknowledged that the penalty notice from the suspended driving matter was misleading as it made no mention of the disqualification.


Case result

Having taken all matters into account, and notwithstanding the client’s poor driving record, the Judge found the offence proved but found it inexpedient to proceed to conviction and dealt with the matter pursuant to section 10 Crimes (Sentencing Procedure) Act – no disqualification, no fine. He was placed on a good behaviour bond for two years without conviction.

Nyman Gibson Miralis provides expert advice and representation in all areas of drink driving and traffic law. 

Contact us if you require assistance.