What the prosecution needs to prove
The prosecution are required to prove, beyond reasonable doubt, that:
You drove a motor vehicle on a road; and
You were not licenced to drive at the time or have never been licenced.
Section 53(1) addresses driving a motor vehicle on any road without being licensed for that purpose, whereas section 53(3) addresses persons driving whom have never been licensed.
The Act provides that a person will be considered to have never been licensed, in connection with this offence, where they 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.
Defences
Being exempt from this offence (i.e., visiting NSW and holding a foreign driver’s licence)
Honest and reasonable mistake of fact (you honestly and reasonably thought that your licence wasn’t disqualified/suspended/cancelled)
Duress (i.e., you were threatened into driving)
Necessity (i.e., you had to drive to avoid a serious risk of injury or death)
Penalties
If you plead guilty to this offence, you will then be subject to penalties from the court.
The maximum penalty of section 53(1) is a fine of $2,200.
There are circumstances in which a penalty infringement notice may instead be issued, including where your licence has been expired for 2 years or more ($723) and where you have resided in New South Wales for 3 months but not obtained an NSW driver’s licence ($603).
Section 53(3) (‘never been licenced’) carries a maximum penalty of a $2,200 for a first offence, or a $3,300 and/or 6 months imprisonment in the case of a second or subsequent offence.
A second or subsequent offence of driver never licenced carries a default disqualification period of 12 months, which may be lowered to a minimum period of 3 months.
Apart from the penalties above, the court can also issue one of the following penalties based on your circumstances:
S10(1)(a) dismissal
Conditional release order without conviction
Conditional release order with conviction
Fine
Community corrections order
Intensive corrections order
Full-time imprisonment
If you receive a non-conviction penalty, you will not have a conviction recorded against your name and will not be subject to any fines or disqualification periods. Your lawyer can assist you in preparing your case to put yourself in the best possible position to receive a non-conviction penalty.
