Expertise » Criminal Defence » Traffic Matters » Drive when visiting privileges withdrawn

Drive when visiting privileges withdrawn

If you hold a driver’s licence from another state or country, you may still be allowed to drive in NSW. However, Transport for NSW can withdraw your right to drive in certain circumstances.

If your visiting driving privileges are withdrawn by Transport for NSW, you are no longer licensed to drive a vehicle in NSW. If you drive when your visiting privileges are withdrawn, you may be committing the offence of driving without being licensed, which is an offence under section 53(1)(a) of the Road Transport Act 2013 (NSW). 

There is no mandatory period of disqualification for this offence. That means that even if you are convicted by the Court, you will not automatically have your licence disqualified.

Our Sydney-based criminal lawyers have extensive experience representing persons charged for driving when visiting privileges withdrawn. Contact us today on (02) 9268 0444 to arrange a consultation with one of our experienced criminal lawyers.

What does the prosecution need to prove?

For you to be found guilty of the offence of drive when visiting privileges withdrawn, the prosecution must prove beyond reasonable doubt the following:

  1. You drove a vehicle on a public road; and
  2. You were not licensed to drive.

When will I not be licenced to drive? 

You will not be licensed to drive if the exemption from holding a NSW driver licence under the Road Transport (Driver Licensing) Regulation 2017 is withdrawn by Transport for NSW for one of the following reasons:

(a) You are a visiting driver who is the holder of an Australian driver licence or learner licence or New Zealand driver licence or learner licence and have resided in NSW for a continuous period of more than 3 months, unless you also hold a valid Driver Identification Document issued by the Department of Defence of the Commonwealth;

(b) You are a visiting driver visiting NSW from a foreign country (other than New Zealand) and you hold a permanent visa under the Migration Act 1958 of the Commonwealth and have resided in NSW for a continuous period of more than 3 months since the granting of the visa;

(c) You are from a foreign country (other than New Zealand) and you are an Australian citizen and have resided in NSW for a continuous period of more than 3 months;

(d) You are suspended or disqualified from driving a motor vehicle on a road or road related area in any part of Australia or another country;

(e) You would, if you applied for a driver licence, be refused because of a failure to meet the conditions of reinstatement of a driver licence after cancellation;

(f) You are charged with an offence specified under another law of NSW relating to visiting drivers;

(g) In the reasonable opinion of Transport for NSW, you are not a fit and proper person to drive a motor vehicle in NSW;

(h) In the reasonable opinion of Transport for NSW, your ability to drive safely is impaired due to a permanent or long-term injury or illness;

(i) In the reasonable opinion of Transport for NSW, Transport for NSW could, under clause 65 or 66 of the Road Transport (Driver Licensing) Regulation 2017, vary, suspend or cancel a NSW driver licence held you, if you were to hold such a licence;

(j) You are a fine defaulter (within the meaning of the Fines Act 1996) and Transport for NSW suspends your privileges in accordance with that Act;

(k) You apply for a NSW driver licence and that application is refused under clause 56 of the Road Transport (Driver Licensing) Regulation 2017;

(l) You obtain a NSW driver licence;

(m) Your NSW driver licence is suspended, varied or cancelled under clause 65 or 66 or surrendered under clause 64 of the Road Transport (Driver Licensing) Regulation 2017;

(n) In the reasonable opinion of Transport for NSW, Transport for NSW could, under section 33 of the Road Transport Act 2013, suspend a NSW driver licence held by you, if you were to hold such a licence, as you incurred 13 or more demerit points (whether or not the person is a professional driver) within the period specified in that section;

(o) You have made an election under section 36(1) of the Road Transport Act 2013 and incur 2 or more demerit points during the 12 months’ good behaviour period;

(p) In the reasonable opinion of Transport for NSW, Transport for NSW could, under section 59 of the Road Transport Act 2013, suspend a NSW driver licence held you, if you were to hold such a licence, because of a speeding offence or an alcohol or other drug related driving offence.

How can you defend a charge of drive with your visiting privileges withdrawn?

There are various ways that you may defend a charge drive with your visiting privileges withdrawn:

  • Denying that you engaged in the conduct alleged. For example, you deny driving on a road.
  • Arguing that you did not know that your visiting privileges were withdrawn (see below).

Our Sydney-based criminal lawyers can advise you as to your prospects of successfully raising any of the above defences.

Honest and reasonable mistake of fact

The defence of honest and reasonable mistake of fact is a defence to driving with your visiting privileges withdrawn.

You will have a defence if and only if:

  1. You did not know that your visiting privileges were withdrawn.
  2. That belief must be honest (subjective test).
  3. That belief must be reasonable, in the circumstances (objective test). 

Once you raise the defence of honest and reasonable mistake of fact sufficiently at your hearing, the prosecution then must disprove beyond reasonable doubt:

  1. That you did not honestly believe, on reasonable grounds, that your visiting privileges were withdrawn.

The defence of honest and reasonable mistake of fact can be a difficult defence to raise and is unsuccessful in many cases.  However, even if you are unsuccessful, you can still rely on evidence of the circumstances at your sentence hearing to receive leniency. 

What is the Penalty for driving with your visiting privileges withdrawn?

Sentencing options

If you plead guilty or are found guilty of an offence of drive with your visiting privileges withdrawn, the Court must decide what penalty to impose on you.

There are three penalties that a Court can impose for an offence of drive with your visiting privileges withdrawn:

  • Conditional Release Order;
  • A fine; or
  • A community corrections order.

The maximum penalty that the Court can impose is a fine of $2,200.

If you are convicted of the offence of drive with your visiting privileges withdrawn, there is no mandatory disqualification period.

However, under section 204 of the Road Transport Act 2013, a court may disqualify you from holding a driver licence for a period that it specifies. It is important to note that this section is not often used by the Courts.

Our Sydney-based criminal lawyers can assist you to receive the most lenient sentence that is possible.

Relevant factors to be considered when sentencing

When the Court decides what penalty to impose for an offence of drive with visiting privileges withdrawn, it will consider a wide range of factors.  These considerations are generally divided into objective and subjective factors. 

Some key objective sentencing factors include the following:

  • The reason why your visiting privileges were originally withdrawn;
  • Why you drove;
  • The weather conditions when you drove;
  • How busy the road was; and
  • How far you drove.

Some key subjective sentencing factors include the following:

  • Whether you pleaded guilty;
  • Your age;
  • Whether you are remorseful (sorry)  for your conduct;
  • Your traffic record;
  • Your criminal record and whether your have any prior convictions; and 
  • Your likelihood of reoffending. 

Can you avoid a criminal conviction?

As with any offence, the Court has the power to not record any criminal conviction against you for an offence of drive when visiting privileges withdrawn.

Under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court can make any one of the following orders without recording a criminal conviction:

  1. Direct that your charge of drive with visiting privileges withdrawn be dismissed;
  2. Discharge you under a conditional release order; or
  3. Discharge you on the condition that you enter into an agreement to participate in an intervention program.

In deciding whether to record a criminal conviction, the Sentencing Magistrate or Judge will consider the objective and subjective factors discussed above as well as the following further factors contained in section 10(3):

(a) The person’s character, antecedents, age, health and mental condition;

(b) The trivial nature of the offence;

(c) The extenuating circumstances in which the offence was committed; and

(d) Any other matter that the Court thinks proper to consider.

Will you go to gaol?

This offence is a ‘fine only offence’, meaning that the Court cannot send you to jail.

What sentence do most people receive?

According to statistics published by the Judicial Commission of New South Wales in relation to all persons sentenced in the Local Court for the offence of drive with visiting privileges withdrawn:

  • The single most common penalty was a fine only.
  • Approximately 28% of all offenders avoided a criminal conviction

In which court is a drive with visiting privileges withdrawn case heard?

The offence of drive with visiting privileges withdrawn is a traffic offence, which means that it will be heard in the Local Court of NSW.

Drive with visiting privileges withdrawn cases are prosecuted in the Local Court by the police prosecutors.

How can we help?

Our criminal lawyers have extensive experience in drive with visiting privileges withdrawn matters.  We have appeared in many of Australia’s most high-profile cases over the last 12+ years.

Our experience and expertise enable us to achieve excellent results for clients facing prosecution for drive with visiting privileges withdrawn offences. 

Our criminal lawyers can assist you through the entire criminal justice process, from the initial police investigation until the conclusion of your case. 

We will provide you with comprehensive advice as to your prospects of successfully defending the charge and what penalty you are likely to receive if you were to plead guilty.

If you plead not guilty, our criminal lawyers will maximise your prospects of being found not guilty.

If you plead guilty, we will assist you to achieve the most lenient possible result at your sentencing.

Key services

  • Advising on the prosecution evidence and relevant law, including, the Road Transport Act 2013
  • Developing defence strategies
  • Engaging third party experts such as psychologists and psychiatrists 
  • Drafting representations to the prosecution to withdraw the charge
  • Plea negotiations with the prosecution 
  • Briefing barristers with expertise in drive whilst visiting privileges withdrawn matters
  • Appearing at Local Court hearings
  • Appearing at sentence proceedings
  • Appearing at appeals against conviction and sentence