The guidelines must be followed unless the Judge or Magistrates’ consider it is not in the interests of justice to do so. Driving whilst disqualified is regarded by the court as a very serious offence because it usually constitutes a defiance of, and contempt for, an order either of the court or a Registrar. The original sentence of immediate imprisonment for a period of seven days was set aside, and a sentence of twenty-one days imprisonment (suspended) substituted [see Theophilus v Police  SASC 6521]. If you are found guilty of driving whilst disqualified, you will be charged with a further criminal offence and run the risk of a prison sentence. What's new Search. The guidance replaces the two previous documents published i… When you’re facing prosecution for driving whilst disqualified, you need expert legal advice to help you argue your case and limit the sentencing against you. The effect on dependants is a matter which should be taken into account [see Bates v Police (1997) 70 SASR 66;  SASC 6430]. Unduly lenient sentence - dangerous driving causing grievous bodily harm; driving without insurance; driving whilst disqualified; and drink driving - previous bad record of driving offences - whether right to make a custody probation order - guidance of use of this sentencing power. This starting point is for a first-time offender who has pleaded not guilty. Alternative penalties may be considered where the offending is not contumacious. Is the decision to drive whilst disqualified one which should be characterised as âcontumaciousâ? Driving while disqualified Legislation. Circumstances such as previous good character, age, medical or mental health factors, whether the offence was premeditated, whether the defendant has employment, whether the defendantâs incarceration would cause hardship for any dependants, whether there were any extenuating circumstances in the context of the decision to drive under disqualification are among the circumstances which the court may have regard to. 0000005456 00000 n The appellant had been sentenced to an immediate term of imprisonment for 21 days just prior to the decision in Cadd. Psychiatristâs and parole officerâs reports indicated that a sentence of imprisonment would have a detrimental effect on his continuing rehabilitation. You will then be taken to a police station where you will be searched, photographed, have your fingerprints and DNA taken and held in a cell. Being disqualified means you cannot drive any vehicle on any road or public highway. Our client pleaded guilty to driving whilst disqualified. Must endorse and may disqualify. If you are convicted of a third or subsequent offence, you will be disqualified from driving for more than one year and either fined up … 0000003154 00000 n Where the driving is found not to be contumacious or may be characterised as trivial or committed in the context of genuine emergency the full range of sentencing options and principles arising under the Sentencing Act 2017 (SA) is available to the sentencing Magistrate. Plans under the new sentencing guidelines published this week suggest that drivers who commit the more serious speeding offences face harsher penalties. To drive a motor vehicle in circumstances where the person is disqualified because it is convenient to do so and because it would be inconvenient not to drive probably does suggest an attitude of defiance. An order to serve twenty-eight days imprisonment was upheld on appeal. He was ordered to serve an immediate term of imprisonment for a period of twenty-one days. 0000001562 00000 n 0000016845 00000 n 0000017329 00000 n Driving while disqualified Legislation. Disqualified Driving 1 We can give you advice on Disqualified Driving Disqualified driving carries a maximum sentence of 6 months imprisonment and a fine of up to £5,000 plus an additional driving ban. This most recent consultation relates primarily to Magistrates' Courts Sentencing Guidelines (MCSG) and covers: driving whilst disqualified, breach of a community order and totality. Offence: Driving whilst Disqualified and Driving without a valid Certificate of Insurance. If the disqualification has been recently imposed the sentence starting point on the Magistrates' Sentencing Guidelines is 12 weeks custody. This is even if you are seeking the removal of disqualification from driving. For a second or subsequent offence the penalty is imprisonment to a maximum of two years [see s 91(5)]. As the discretion to suspend a sentence of imprisonment has now been restored by Police v Cadd & Others (1997) 69 SASR 150; SASC 6187 (as discussed below), a question is now raised as to whether Magistrates may sometimes take the view that where imprisonment is suspended it may be appropriate to order a further disqualification by way of penalty. The following commentary is intended only as a general guide to the sentencing principles and standards in relation to drive disqualified offence(s), mitigating factors and the defence of honest and reasonable mistake of fact. If you are found guilty of driving whilst disqualified, this could result in: A fine of up to £5,000; 0000002521 00000 n Magistrates Sentencing Guidelines. [see Nash v Police  SASC 112; Scholes v Police  SASC 116; Rhodes v Police  SASC 191 regarding âfoolishâ offending; White v Police (2000) 76 SASR 430; SASC 127) for âfoolish and unthinkingâ; Wright v Police  SASC 462for employment; Lennon v Police (2005) 238 LSJS 185; SASC 11) for good explanation of "contumacious"]. Driving Whilst Disqualified (or allowing someone to): Up to 6 months in prison and/or a fine up to £5,000, 6 penalty points and discretionary disqualification from driving. Enter keywords . It was raining heavily and the child was crying with discomfort. The appeal was allowed and the matter remitted back to the summary court for sentencing afresh and to hear evidence if necessary. On appeal it was held not to be a premeditated, positive act of defiance with a number of substantial mitigating features. As a general rule a penalty of imprisonment will be imposed by the sentencing court. He was caught driving on the twenty-fifth of January and raised the defence of an honest mistaken belief on reasonable grounds. 64 0 obj <>stream On appeal it was held that no offence is committed if there is an honest and mistaken belief, based on reasonable grounds, as to the state of facts, which if true, would render the act itself innocent [see Davis v Bates (1986) 43 SASR 149]. The guidelines will come into force on 1 January 2021. Driving whilst disqualified is regarded by the court as a very serious offence because it usually constitutes a defiance of, and contempt for, an order either of the court or a Registrar. The courts have a sentencing range from a Financial Penalty to imprisonment. Having determined the category at step one, the court should use the appropriate starting point to reach a sentence within the category range in the table below. Driving whilst disqualified is a serious offence with far-reaching consequences. Edney, Richard and Bagaric, Mirko, ‘Imprisonment for Driving Whilst Disqualified: Disproportionate Punishment or Sound Public Policy’ (2001) 25 Criminal Law Journal 7. Magistrates' Court Sentencing Guidelines. 1. Since the judgments of the former Full Court in Police v Cadd & Others (1997) 69 SASR 150;  SASC 6187 (âCaddâ), there have been many single Judge decisions on appeal on the subject of the proper approach to sentencing defendants convicted of driving whilst disqualified. Section 205A sets out the disqualification periods for particular offences of driving while disqualified, cancelled or suspended, or unlicensed driving in ss 53 and 54 including for disqualified driving offences arising from the non-payment of fines. On this point, Justice Lander in Johns v Police  SASC 6729, said (at 7): However, even if it is contumacious behaviour it will not necessarily give rise to an immediate sentence of imprisonment. 0000003808 00000 n There remains disagreement and inconsistency as to the proper application of the principles in Cadd . Driving a motor vehicle on the road while disqualified from holding or obtaining a licence is an offence under s 103 of the Road Traffic Act 1988 (RTA 1988).. 0000003553 00000 n This most recent consultation relates primarily to Magistrates' Courts Sentencing Guidelines (MCSG) and covers: driving whilst disqualified, breach of a community order and totality. 0000001116 00000 n If you can proof that you were not driving the vehicle whilst disqualified, you could avoid being prosecuted. However, prosecution may challenge the ânon-contumaciousâ basis of a plea of guilty and the defendant and any witnesses may be required to give evidence on oath as to the circumstances and state of mind which led to the driving. Lander J was not prepared to categorise his behaviour as contumacious because it did not indicate an attitude of total disregard of, and disobedience to the authority which had ordered the disqualification. If it is the third and subsequent offence, penalties include up to two years imprisonment and/or a fine up to $6,000. 0000043870 00000 n The Magistrates will have regard to Sentencing Guidelines: where there is higher culpability and greater harm, i.e. CARSWELL LCJ11 JULY 1997 . If the meaning of contumacious in the present context was defined in that way so as to exclude only very few types of cases from its reach, there would be a very different sentencing standard than that expressed by the majority in Cadd. 0000001888 00000 n In addition to trivial or emergency situation examples, driving which would be accepted as non-contumacious would normally include those cases where the driver has acted under a mistake of law, such as where the driver was in genuine error as to the operative dates of the disqualification, or the time at which the disqualification came into effect or expired, or was under an honest but not reasonable misapprehension as to the operation of an administrative disqualification by the Registrar of Motor Vehicles. As a general rule a penalty of imprisonment will be imposed by the sentencing court. Driving whilst disqualified is an offence under section 54(1) of the Road Transport Act 2013. Strictly speaking there is no difference between a disqualification ordered by a court (such as for a drink-driving or other traffic offence or for an illegal use/interference offence) and a disqualification ordered by the Registrar of Motor Vehicles (such as under the points demerit system or as a result of an enforcement order made by the court in respect of unpaid fines). That is because a second offence would ordinarily exhibit contumacy on the part of the offender. The defendant was convicted of illegal use of a motor vehicle and disqualified until further order. His wife was not home and the house was locked. The defendant was disqualified due to demerit points and was a first offender. It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it. These are guidelines that must be followed by sentencers. This guidance is provided to provide an overview on procedure and charging practice that is not dealt with in the existing road traffic guidance being 1. 0000007046 00000 n So also will that person be more likely to be unable to satisfy the court that good reason exists for the suspension of the sentence. 0000008037 00000 n Obtaining a Driving Licence Whilst Disqualified: Fine up to £1,000. Millars Solicitors were instructed by Miss E who was very concerned about the prospect of a custodial sentence as she was driving whilst disqualified. Leniency was appropriately shown by ordering an immediate sentence of imprisonment of fourteen days only [see French v Police  SASC 6532]. This guidance deals with a number of the most serious offences that directly result from or relate to a driving incident and the way in which a motor vehicle has been driven. Alcohol and drug affected driving Alcohol and drug affected driving are serious offences and carry tough penalties, especially for repeat offenders. The Driving while Disqualified or Suspended review examines the causes and consequences of driving while disqualified or suspended. A COP killer once jailed for mowing down an officer in a hit-and-run is today back behind bars for driving whilst disqualified. The present case is an example. The defendant had not intended to drive but had run out of alcohol and took his girlfriendâs car keys from the table without thinking, to go to the hotel for more alcohol. If the driving exhibits an attitude of defiance then that would normally amount to contumacy and may call for a sentence of imprisonment. 0000000016 00000 n Your need for a licence is a relevant factor in the sentencing process, and those who will suffer hardship should be in a position to provide evidence to the court proving that hardship. If convicted of driving whilst disqualified, it is usual practice for the Court to briefly adjourn... Charged with driving whilst disqualified. Defence: Mitigation. Prior to Cadd the leading authority was Coombe v Douris (1987) 47 SASR 324, which was subsequently followed in Eldridge v Bates (1989) 51 SASR 532. He had been disqualified as a result of a previous PCA offence but had never before served a custodial sentence. The defendant was under the impression that he was disqualified for nine months and had applied and received a licence after the nine months had elapsed. Driving whilst disqualified is regarded by the court as a very serious offence because it usually constitutes a defiance of, and contempt for, an order either of the court or a Registrar. The Court is required to approach the sentencing task by progressive steps to determine the appropriate penalty in the individual case. A duty solicitor is not in a position to take the necessary detailed instructions to present submissions in mitigation; these would include: Failure to adequately prepare submissions in mitigation could adversely affect the chances of a defendant who later wishes to appeal an immediate sentence of imprisonment, owing to the fact that he or she was represented by counsel at the time of sentencing [see Guilty Pleas chapter]. Get in touch with us today to discuss your case, and find out how we can help you. The drive whilst disqualified offence was committed while the defendant was on parole. Drink driving is a criminal offence and the penalties for drink driving and related offences in the UK are severe.One of the most important factors that determine the severity of the sentence that magistrates will impose for drink driving offences is the level of alcohol in an offenders system at the time of the offence. 24 0 obj <> endobj This was his fourth drink driving offence in the space of six years. there is a very real risk of immediate imprisonment for this offence; it is important that the defendant adjourns the matter so that he or she can instruct a solicitor to represent them because they. Driving a motor vehicle on the road while disqualified from holding or obtaining a licence is an offence under s 103 of the Road Traffic Act 1988 (RTA 1988).. Search judicial decisions and choose filters to show only the results you want ... Driving whilst disqualified and dangerous driving - young offender - consecutive sentences - disqualification from driving for life. Where the driving is found to have been contumacious the court should have regard to the personal circumstances of the offender to consider whether there is good reason to suspend a sentence of imprisonment. It means something more than mere intention to drive disqualified which is an essential element of the charge. Defences He had taken his six-year-old grand-daughter to the Royal Show and had returned to his wifeâs house with her to get a lift home. The Magistrates' Association Sentencing Guidelines state that, where a Court is sentencing a disqualified driver, it should consider sentences from a Court fine (at the lowest end of seriousness) to 26 weeks custody (at the highest end of the spectrum). It rather suggests that it does not suit the driver to obey the order of the Court. If so, then the starting point should be a sentence of imprisonment. There will still need to be an inquiry into whether good reason exists for suspending the sentence [see Sentencing Act 2017 (SA) s 96]. 0000007335 00000 n Offences under s. 320.18 [driving while prohibited] are hybrid with a Crown election.If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.. Release ... Now I have got court in two months , for the charges Driving Whilst Disqualified and Using a motor vehicle on a public road without third party insurance. Sentencing Guidelines - Offences. The defendant made a mistake about the interpretation of the true effect in law of the endorsement on his licence which stated âdisqualified to 25th January 1988â. Driving whilst disqualified and obtaining a licence whilst disqualified. 0000044343 00000 n Sentences can vary from a fine, community service to a prison sentence. 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