Driving whilst unlicensed

What is driving whilst unlicensed?

Driving whilst unlicensed is a serious offence that can lead to the disqualification of your driver’s licence. Many people in the community do not appreciate how harshly courts can deal with repeat offenders. Where a person has continually ignored court orders and repeatedly offended, most magistrates will sentence that person to a term of imprisonment.

In order to be convicted of this offence, the police will need to prove beyond reasonable doubt:

  1. You drove a motor vehicle; and
  2. You were unlicensed.

Are there any defences for driving whilst unlicensed?

Honest and reasonable mistake of fact is a defence to a charge of driving while unlicensed. The defence will be enlivened where you had an honest and reasonable belief in a state of affairs which, if they existed, would make your act an innocent one. For example, you were in homeless at the time the letter notifying you of your suspension was sent to you and you did not receive it. In that circumstance you would have had an honest and reasonable belief that it was legal for you to drive.

You can read more about honest and reasonable mistake of fact here here.

Other defences to Driving whilst suspended/disqualified include:

Penalties for Driving while unlicensed

The maximum penalties for driving unlicensed vary depending upon whether you have ever held a licence. The penalty for driving unlicensed where you have previously been licenced is a fine of $2,200.00.

For a second offence, if you have never held a licence, the maximum penalty increases to a fine of $3,300 and/or 18 months imprisonment and a mandatory licence disqualification of 3 years. You will be held to have never held a licence if you have not held a driver licence (or equivalent) of any kind in Australia for the period of at least 5 years immediately before the commission of the offence.

Can I keep my licence if I am charged with Drive whilst unlicensed?

Where you are charged with this offence, a court cannot decline to record a disqualification or impose a disqualification less than the mandatory period unless your matter is dealt with by way of section 10 of the Crimes (Sentencing Procedure) Act.

Depending on the circumstances of your offending and the number of times you have committed this offence, our lawyers are often able to convince a court to deal with this offence by way of section 10 of the Crimes (Sentencing Procedure) Act, meaning no conviction will be recorded, there is no other penalty (including no disqualification) and you will have no criminal record. To find out more about a section 10, click here.

In deciding whether to deal with your matter by way of section 10, the court will consider, amongst other factors:

  • Your character (employment, family, charity)
  • Your criminal record (if any)
  • Your traffic record
  • The circumstances of you consuming alcohol
  • The circumstances of your driving
  • The deliberateness of your offending
  • Your need for a licence in particular for employment, family or medical reasons, or where you live in a remote area
  • Whether you have completed the Traffic Offenders Program

Do I need references for a driving unlicensed offence?

In order to obtain a section 10, driving unlicensed cases should be tailored to address the above factors and matters unique to your own case. In order to give you the best chance of keeping your licence, it is recommended that you work closely with one of our solicitors to prepare your case. Your criminal lawyer will request you obtain references. If the offence is one that carries a loss of licence, the referees should state your needs for a licence. Below are some reasons a court may invoke for not recording, or reducing, a disqualification period.


Loss of employment is a classic reason for a court not disqualifying a person. If a person will lose their job if they lose their licence then the referee should put forward that assertion with absolute certainty. The court will see straight through waffle such as “his position may be reviewed”. For example:

A licence disqualification will prevent Joe Blog’s from fulfilling his duties and hence, if this occurs, he will be asked to temporarily leave his post until the disqualification lapses or if the disqualification is for more than 3 months, his employment will be terminated as per clause 8.2 of his contract enclosed herein. There is no discretion in this situation. He is a sales representative and our clients cannot be serviced by public transport.

Lack of public transport

No viable alternative transport is a matter the court may consider when deciding whether to impose a disqualification. This mainly applies to people in the country, but may apply if you are a shift worker, reside or work in an area not serviced by public transport, or to females who work late. For example:

Joe Blog’s works at Marayong Chickens in an industrial area where there is no public transport. He wakes up at 3am, leaves at 4am, and starts his shift at 5am. We have explored all options and, as he is the only licenced driver in our family, he has no way to get to work if he loses his licence. We have a mortgage and two school age children. Without a licence, he cannot get to work. Worse still, we’d have no way to get to the Richmond shops, a 20 minute drive from where we live on acreage.

Family responsibilities

Family reasons such as care for a child or elderly parents, sickness of yourself or another who relies upon your ability to drive, are matters a court may consider. For example:

Joe Blogs resigned from his job to look after our sick son as he is the only licenced driver in our family who could take him to his daily medical appointments. When he stopped working, I started a lower paying job. Even though it meant less money, it was the only way we could ensure our son received the treatment he needed. Joe is with our son 24 hours a day in case his conditions worsens and he needs to be taken to hospital. We simply cannot look after our son without a car.

A detailed guide to reference writing can be viewed here.

Other penalties a court in NSW can impose:

Our solicitors are experts at obtaining section 10 dismissals for Drive whilst unlicensed. For these offences, we offer fixed fees with no hidden extras. To read more about AC Law Group, click here, and call us or make a website inquiry today.


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