Unlicensed Driving

– section 18 of the Road Safety Act 1986
Person DrivingThis charge is laid when a person drives a motor vehicle on a highway without holding a valid drivers licence or permit or where a person drives a motor vehicle on a highway in breach of any condition of a drivers licence or permit.
Examples of Unlicensed Driving
  • A person drives a motor vehicle without a valid licence on a highway.
  • A person drives a motor vehicle with an interstate or New Zealand licence after being in Victoria for more than three months.
  • A person drives a motor vehicle on a highway in breach of a condition of their divers licence.
Questions in cases like this
  • Does the accused have a valid drivers licence or permit?
  • Was the person driving a motor vehicle on a highway?
  • What are the conditions of the accused’s drivers licence or permit?
What are some of the possible defences to Unlicensed Driving?

Defences to this charge often turn on some element of the offence not being made out. These include:

  • The accused held a valid drivers licence; and
  • The accused was not driving the motor vehicle on a highway.

Other defences to this charge may include duress and sudden and extraordinary emergency in certain circumstances.1

You should ring us and discuss your case if you have been charged. Deciding on whether to plead guilty or not has important implications for you and should be made after proper discussions with a criminal lawyer.

Maximum penalty and court that deals with this offence

The maximum penalty for this offence depends on the circumstances of the case.

In most cases, this offence carries a maximum penalty of 60 penalty units (a $9,671.40 fine) or 6 months imprisonment.2

If the court is satisfied:

  1. that the accused held an appropriate licence (whether issued in Victoria or in another State or a Territory) or a licence issued in another country at some time before they drove unlicenced; and
  2. that the licence was not cancelled for an offence relating to the driving of a motor vehicle committed by the person in Victoria or in another State or a Territory—

The maximum penalty is 10 penalty units (a $1,611.90 fine) or 1-month imprisonment.3

If the court is satisfied:

  1. that the accused was disqualified under the Road Safety Act 1986 (Vic) or the Sentencing Act 1991 (Vic) from obtaining a driver licence or learner permit; and
  2. that the accused has ceased to be disqualified from obtaining a driver licence or learner permit; and
  3. that—
    1. the Magistrates’ Court would have had power to give an alcohol interlock condition direction had the person applied for a licence eligibility order or, having applied for such an order, had the Court not refused to make it; or
    2. the person is a person to whom the administrative scheme for imposing an alcohol interlock condition applies and, had the person applied for and been granted a driver licence or learner permit, the Corporation would have had power to impose an alcohol interlock condition on the driver licence or learner permit—

The maximum penalty is 60 penalty units (a $9,671.40 fine) or 6 months imprisonment.4 Further, in these circumstances the court may order that the accused’s vehicle be immobilised for up to 12 months.5 The court may make this order whether the motor vehicle is owned by the accused or another person.6

The value of a penalty unit is reviewed annually by the Department of Treasury and Finance on 1 July every year. As such, the maximum fine for this offence is liable to change. See Penalties and Values – Penalty Units on the Victorian Department of Justice Website for more information.

This offence is heard in the Magistrates’ Court.

What is the legal definition of Unlicensed Driving?
  1. A person must not drive a motor vehicle on a highway unless the person—
    1. holds a driver licence or learner permit which authorises the person to drive that category of motor vehicle; or
    2. holds a licence or permit issued in another State, a Territory or another country and is authorised by the regulations to drive that category of motor vehicle; or
    3. is otherwise authorised by the regulations to drive that category of motor vehicle.

Call Doogue + George

  • 1A. Unless subsection (2) or (3) applies, a person who commits an offence under subsection (1) is liable to a penalty not exceeding 60 penalty units or to imprisonment for not more than 6 months.
  1. If the court is satisfied—
    1. the person has held an appropriate licence (whether issued in Victoria or in another State or a Territory) or a licence issued in another country at some time before the commission of an offence under subsection (1); and
    2. the licence was not cancelled for an offence relating to the driving of a motor vehicle committed by the person in Victoria or in another State or a Territory—

    the person is liable to a penalty not exceeding 10 penalty units or to imprisonment for not more than one month.

  2. If the court is satisfied—
      1. that the person was disqualified under this Act or the Sentencing Act 1991 from obtaining a driver licence or learner permit; and
      2. that the person has ceased to be disqualified from obtaining a driver licence or learner permit; and
      3. that—
        1. the Magistrates’ Court would have had power to give an alcohol interlock condition direction had the person applied for a licence eligibility order or, having applied for such an order, had the Court not refused to make it; or
        2. the person is a person to whom section 31KA or 31KB applies and, had the person applied for and been granted a driver licence or learner permit, the
          Corporation would have had power to impose an alcohol interlock condition on the driver licence or learner permit—

    the person is liable to a penalty not exceeding 60 penalty units or to imprisonment for not more than 6 months.

  3. If subsection (3) applies, the court may, if it considers it appropriate to do so, order that the motor vehicle concerned be immobilised (whether by wheel clamps or any other means) for a period specified in the order of up to 12 months.
  4. An order under subsection (4) may be made subject to specified conditions.
  5. The court may make an order under subsection (4) whether the motor vehicle is owned by the offender or another person.
  6. If the court considers that another person, who is not present at the hearing concerning the making of an order under subsection (4), may be substantially affected by such an order, the court must issue a summons to that other person to show cause why the order should not be made.
  7. On return of the summons, the court may, after hearing the evidence brought before it, make or refuse to make the order.
Legislation

The relevant legislative provision for this offence is section 18 of Road Safety Act 1986 (Vic) (the Act).

Elements of the offence

To prove this offence, the prosecution must establish the following elements beyond reasonable doubt:

  1. The accused drove a motor vehicle on a highway; and
  2. The accused did not hold a valid drivers licence or learner permit that authorises them to drive the category of motor vehicle they were driving.

Element 1: The accused drove a motor vehicle on a highway
‘Motor vehicle’ means ‘a vehicle that is used or intended to be used on a highway and that is built to be propelled by a motor that forms part of the vehicle’.7 A motor vehicle does not include a railway or tramway vehicle or a motorized wheel-chair limited to 10km per hour used solely the purpose of conveyance of an injured person or a person with a disability.8

A ‘highway’ means a ‘road’ or ‘road related area’.9

“Can they prove you were driving the motor vehicle?”

Element 2: The accused did not hold a valid drivers licence or learner permit that authorises them to drive the category of motor vehicle they were driving
The second element of the offence will be satisfied if the accused did not hold a valid drivers licence or learners permit authorizing them to drive the category of motor vehicle they were driving on a highway.

Even if the accused’s drivers licence or permit is valid, the second element of the offence may be satisfied if the accused’s licence does not authorised them to drive the type of motor vehicle they were driving. For example, the accused cannot drive a heavy vehicle without a heavy vehicle’s licence.

A person may drive in Victoria using an interstate or New Zealand drivers licence for up to three months. If a person resides in Victoria for a continuous period of three months or more, they must convert their licence to a Victorian licence to keep driving.10

Sentencing in the higher courts

Higher CourtBetween 1 July 2011 and 30 June 2016, there were 152 charges of Unlicensed heard in the higher courts of Victoria. Most of these charges resulted in imprisonment at 67.1%. Other sentences imposed were fines (19.7%), Youth Justice Centre Orders (4.6%), Community Correction Orders (4%), adjourned undertaking/discharge/dismissals (2%), partially suspended sentences (1.3%), and other forms of penalties (1.3%).

Of the prison terms imposed, that majority were for periods that less than 1 year (84.3%). The majority of the charges that led to fines were less than $1,000 (the lowest category) although there were 13.3% that fell between $1,000 and $2,000.11

Please note that suspended sentences were abolished in the higher courts earlier than that of the Magistrates’ Court. All offences committed on or after 1 September 2013 that are heard in the higher courts will not have this available as a sentencing option.12

Where terms of imprisonment exceed the maximum penalty for this offence, the sentence would have been an aggregate term of imprisonment that encompassed multiple charges.

Sentencing in the Magistrates’ Court

In the Magistrates’ Court there were 13,878 cases (18,508 charges) of Unlicensed Driving that were heard between 1 July 2013 and 30 June 2016. The majority of these cases resulted in fines (54.4%). Other sentences imposed were imprisonment (16.2%), Community Correction Orders (16.1%), adjourned undertaking/discharge/dismissals (6.3%), wholly suspended sentences (5.3%), partially suspended sentences (1.0%), and other sentences (0.3%).

The majority of cases that resulted in imprisonment were for periods that were less than 3 months (33.1%). The highest term imposed was more than 36 months (0.8%). Of the fines imposed, the majority were between the “$500 < $1,000” category (32.9% for aggregate and 13.9% for non-aggregate). The highest amount imposed was between $5,000 and $10,000, although this category applied to only 0.3% of the charges (aggregate).13

There were also 796 cases (848 charges) that were heard during the same period involving the offence of Drive in Breach of Licence Condition in the Magistrates’ Courts. The majority of these cases resulted in fines (65.0%). Other penalties imposed included Community Correction Orders (17.8%), adjourned undertaking/discharge/dismissals (7.2%), imprisonment (6.0%), wholly suspended sentences (3.4%), partially suspended sentences (0.5%), and other sentences (0.1%).

Most of the cases that led to a prison term fell under the “3 < 6 months” category (31.3%). The longest imprisonment term imposed was between 24 and 36 months (2.1%). Of the fines imposed, the highest amount was between $5,000 and $10,000 (0.7% for aggregate). The majority fell under the “$500 < $1,000” category (41.3% for aggregate) and “less than $500” category (5.5% for non-aggregate).14

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.15

Where terms of imprisonment exceed the maximum penalty for this offence, the sentence would have been an aggregate term of imprisonment that encompassed multiple charges.

Other important resources
Media information
Case studies related to Unlicensed Driving

 



[1] Crimes Act 1958 (Vic) ss 322O; 322R.
[2] Road Safety Act 1986 (Vic) s 18(1)
[3] Road Safety Act 1986 (Vic) s 18(2)
[4] Road Safety Act 1986 (Vic) s 18(3)
[5] Road Safety Act 1986 (Vic) s 18(4)
[6] Road Safety Act 1986 (Vic) s 18(6)
[7] Road Safety Act 1986 (Vic) s 3.
[8] Road Safety Act 1986 (Vic) s 3.
[9] Road Safety Act 1986 (Vic) s 3.
[10] See ‘Interstate and New Zealand Drivers’, <https://www.vicroads.vic.gov.au/licences/renew-replace-or-update/new-to-victoria/interstate-and-new-zealand-drivers>.
[11] Sentencing Advisory Council. “SACStat Higher Courts – Road Safety Act 1986 (Vic) : s 18(1)(a) – unlicensed driving.” SentencingCouncil.vic.gov.au. <https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_86_127_18_1_A.html>.
[12] Sentencing Advisory Council. “Suspended Sentence.” SentencingCouncil.vic.gov.au. <https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence>.
[13] Sentencing Advisory Council. “SAC Statistics – Road Safety Act 1986 (Vic): s 18(1)(a) – unlicensed driving.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/86_127_18_1_a.html (accessed January 14, 2019).
[14] Sentencing Advisory Council. “SAC Statistics – Road Safety Act 1986 (Vic) : s 18(1)(b) – drive in breach of licence condition.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/86_127_18_1_b.html (accessed January 14, 2019).
[15] Sentencing Advisory Council. “Suspended Sentence.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence (accessed January 14, 2019).