Charged with unlicensed driving in Victoria? What you need to know
Being charged with driving without a licence can feel minor, but the law treats it seriously. Depending on the circumstances you may face a fine or, in the worst cases, imprisonment. The right charge, and whether you have a defence, depends on your licence history.
This guide explains the two main unlicensed driving offences in Victoria under the Road Safety Act 1986 (Vic), the penalties, and the defences that may be open. It is general information only.
Two different offences: section 18 and section 30
Victorian law separates driving without ever being authorised to drive from driving after your licence has been taken away.
Section 18: driving without a licence
Section 18(1) says a person must not drive a motor vehicle on a highway unless they:
hold a driver licence or learner permit that authorises them to drive that category of vehicle, or
hold a licence or permit issued in another State, Territory or country and are authorised by the regulations to drive that category of vehicle, or
are otherwise authorised by the regulations to drive that category of vehicle.
The usual maximum penalty is 60 penalty units or six months' imprisonment.
Reduced penalties under section 18
The maximum drops to 20 penalty units or one month's imprisonment in two situations.
1. Recently expired licence. The court is satisfied you held an applicable licence or learner permit before the offence, you were unlicensed for no more than six months solely because you had not renewed it, and the licence was not cancelled for a driving offence.
2. Recent arrival from interstate or overseas. The court is satisfied that within six months before the offence you held an Australian licence (other than a Victorian one), an interstate learner permit or an overseas licence, you were authorised under the regulations to drive that vehicle, you have lived in Victoria for 12 months or less, and the licence was not cancelled for a driving offence.
If either applies to you, tell your lawyer early. It changes the penalty the court can impose.
Section 30: driving while suspended or disqualified
Section 30(1) makes it an offence to drive on a highway while your authorisation to drive is suspended, or during a period of disqualification imposed by a court, under the Act or regulations, or by force of the Act or the Sentencing Act 1991.
The maximum penalty is 240 penalty units or two years' imprisonment.
The courts have explained why this offence is graver than driving without a licence. It involves driving after something adverse has happened to your authorisation, which is more culpable than never having held a licence.
Do the police have to prove you knew you were unlicensed?
No. Knowing you were unlicensed or suspended is not an element of the offence. But that does not end the matter, because of the defence of honest and reasonable mistake.
Defence 1: honest and reasonable mistake of fact
The main defence is that you honestly and reasonably believed you were licensed to drive.
In Kidd v Reeves [1972] VR 563 the Supreme Court of Victoria held that an honest and reasonable belief in a state of facts which, if they existed, would make your act innocent affords an excuse for what would otherwise be an offence. The case involved a driver whose licence was suspended for two months after a minor traffic offence. He drove eight days later believing he was still licensed. The magistrate accepted he expected only a fine and had no knowledge of the suspension, and the defence succeeded.
How the defence works in practice:
Evidential burden on you. You must point to evidence showing you had reasonable grounds for believing you were licensed, and that you actually held that belief.
Prosecution must disprove it. Once the issue is raised, the prosecution must satisfy the court beyond reasonable doubt that you did not honestly and reasonably hold the belief.
Both limbs are required. Honesty alone is not enough. Your belief must also rest on reasonable grounds.
Typical situations where this defence is considered include a licence that was cancelled or suspended without you receiving the notice, or a genuine misunderstanding about whether a licence had been renewed or reinstated. Whether it succeeds depends on the evidence.
A note on absolute liability
In some road safety offences the courts have said honest and reasonable mistake is not available because the offence is one of absolute liability. For example, in Tsolacis v McKinnon (2012) 38 VR 260 it was said, in obiter comments, that driving an unregistered vehicle under s 7(1)(a) is an absolute liability offence. That reasoning relied on factors such as the low penalty and the ease of checking a registration label, and it may not carry over to unlicensed driving, where the driver is directly responsible for their own licence status. Your lawyer can advise how this applies to your charge.
Defence 2: necessity
Necessity is a narrow common law defence. Following R v Loughnan [1981] VR 443, it generally requires that:
the act was done only to avoid consequences that would have inflicted irreparable evil on you or on others you were bound to protect;
you honestly believed, on reasonable grounds, that you were in a situation of imminent peril; and
what you did was not out of proportion to the peril you were avoiding.
The courts stress that the compulsion must be present and continuous, and that there must be no alternative to breaking the law. Driving because you needed to get to work, or because public transport was inadequate, will not meet that test. A genuine emergency, such as driving a seriously injured person to hospital when no ambulance was available, is the kind of situation where the defence might be considered.
Defence 3: duress
Duress is even harder to establish. Following R v Dawson [1978] VR 536, it requires, among other things, a threat of death or grievous bodily harm that is present, continuing and imminent, circumstances in which a person of ordinary firmness would have yielded, and no safe way of preventing the threat being carried out. The offence you were forced to commit must also be one nominated by the person making the threat. A general fear or pressure to drive is not enough.
Other points a lawyer will check
Identity. The prosecution must prove you were the driver.
The licence category. Was your licence or permit one that authorised that category of vehicle?
Whether the vehicle was on a highway and whether the offence fits section 18 or section 30.
Whether a reduced penalty applies because of a recently expired or interstate or overseas licence.
What should you do if you have been charged?
Do not ignore the charge or summons. Missing court makes things worse.
Gather your licence history. Keep any VicRoads notices, renewal reminders, suspension letters, or interstate or overseas licence details.
Write down what happened and what you believed about your licence at the time, and who can support that.
Get legal advice before you plead. The right outcome depends on which section you are charged under and what evidence you can raise.
Frequently asked questions
What is the penalty for driving without a licence in Victoria? Under s 18 the maximum is 60 penalty units or six months' imprisonment, reduced to 20 penalty units or one month in the limited circumstances described above.
What is the penalty for driving while suspended or disqualified? Under s 30 the maximum is 240 penalty units or two years' imprisonment.
Is it a defence that I didn't know my licence had been suspended? Not by itself. Knowledge is not an element of the offence, but an honest and reasonable belief that you were licensed can be a defence if you can show reasonable grounds for it.
Can I use necessity or duress as a defence? Only in exceptional circumstances involving imminent danger or a specific threat of serious harm.
I let my licence expire. Is that treated differently? Possibly. If you were unlicensed for no more than six months solely because you did not renew it, and it was not cancelled for a driving offence, a lower maximum penalty applies.
Talk to O'Haire Legal
O'Haire Legal acts for people charged with driving offences in Victorian courts. If you have been charged with unlicensed driving, contact us for advice before your first court date.
O'Haire Legal 5/21 View Point, Bendigo VIC 3550 (03) 7064 0341 home@ohairelegal.com.au
This article is general information only and is not legal advice. The law changes and every case turns on its own facts. Speak to a lawyer about your situation.
