In 2006, through the introduction of the Infringements Act 2006, a discrete offence of driving with a suspended licence was inserted at s 30AA of the Road Safety Act 1986.

The offence relates solely to licence suspensions as a result of the Infringements Act, and reads,

30AA Offence to drive while licence suspended under Infringements Act 2006

A person must not drive a motor vehicle on a highway while that person’s driver licence or permit is suspended in accordance with Part 8 of the Infringements Act 2006.

Prior to the new Act licence suspension was still available to the State as an enforcement option, but the process didn’t seem to be used much. The provision was intended as one of a number of sticks the State can use to persuade citizens to pay the millions of dollars of fines outstanding. Under the Infringements Act, sheriffs have the ability to serve notices on fine defaulters which suspend their driver’s licence until they enter into an arrangement to pay the money owing. The differences between the two offences was discussed by Osborne J in Hoe v Vella & Anor [2009] VSC 600.

The offence of driving in defiance of a court-ordered or demerit point suspension is found at s 30 and is punishable by,

Penalty: For a first offence, 30 penalty units or imprisonment for 4 months;

For a subsequent offence, imprisonment for not less than 1 month and not more
than 2 years.

The offence of driving while under a period of licence suspension under the Infringements Act is punishable by a maximum 10 penalty units, or around $1160. A court may exercise its general discretion under s 28 to interfere with an offender’s licence, but it does not have to and there are no additional penalties for subsequent offences.

I do not know whether an accused who fronts court and pleads guilty to a charge under s 30, and has a prior finding of an offence under s 30AA, would be considered to have committed a subsequent offence that requires imprisonment. The Explanatory Memorandum and the Second Reading speech are of no assistance on this point. I’ve asked prosecutors about this and they don’t seem to know, either.

As a matter of basic statutory interpretation it would seem that a prior finding of guilt on a different charge would not make a s 30 finding a subsequent offence. If this is so, this will cause problems for the prosecution as the s 84 certificates produced by VicRoads that detail an accused person’s prior traffic convictions do not appear to disclose the reason why a licence was suspended when detailing a prior finding of guilt.

I recall there was a similar issue a number of years ago where information from the Roads Corporation was insufficient to establish whether prior convictions were of a relevant type. This concerned offences under Part 6A of the Road Safety Act 1986, but I cannot remember if or how that issue was eventually addressed. I haven’t been able to find any cases on point.