Part 4 — Orders in addition to sentence; Div 3 — Driver licenses and learner permits - suspension, cancellation and driver disqualification

Question 1

87P — Definitions

Answer 1

Serious motor vehicle offence
● (a) Manslaughter arising out of driving of a MV
● (b) per s 24 CA arising from driving of MV (negligently causing serious injury)
● (ba) One of the EW driving offences
● (c) Offence under s 318 CA arising from driving of MV (other than a vessel - ship) - culpable driving causing death
● (d) 319 CA arising from driving of a MV (other than a vessel - ship) - dangerous driving causing death or serious injury
● (e) murder/attempted murder arising out of MV driving
● (f) any of the following offences, if arising out of the driving of a motor vehicle
● while under the influence of alcohol of alcohol and a drug
(i) 15A - Causing serious injury intentionally in circumstances of gross violence (ii) (iii) causing injury/serious injury intentionally or recklessly (16,17,18)
● (iv) offence under section 63A of the Crimes Act 1958 (kidnapping)
● (v) common law offence of kidnapping;
● (vi) carjacking (79) (vii) aggravated carjacking (79A)

Question 2

87Q Matters to be sent to the Secretary to the Department of Transport

Answer 2

if make one of orders below, must send particulars of order/offending to the Secretary immediately

Question 3

88 Application of Evidence Act 2008

Answer 3

to avoid doubt, this is a proceeding that relates to sentencing for the purposes of s 4(2) of the EA

Question 4

89 Suspension or cancellation of driver licence or learner permit and driver disqualification—certain motor vehicle offences

Answer 4

(1) If person found guilty of a SMVO, the court must:
● (a) If hold vic license or learner permit, cancel licence or permit and disqualify them from obtaining a further one for the period of time the court specifies
● (b) If hold only interstate/country, disqualify from driving on Vic road for spec. period
● (c) In any other case, disqualify person from getting permit for specified period
(2) The court must not specify a period of disqualification that is -
● (a) less than 18 months for 319 CA arising from driving of a MV (other than a vessel - ship) - dangerous driving causing death or serious injury
● (b) for (a),(b),(ba),(c),(e),(f)(vii), less than 24 months
● (c) for (f)(i)-(vi), less than 12 months

(3) If a person is found guilty of an offence under s 319AA of the CA (dangerous or negligent driving whilst pursued by police), the court must:
● (a)-(c) as above, but minimum 12 month disqualification period
(4) If a person is found guilty of stealing/attempting to steal a MV, the court may (in the case of finding of guilt) and must (in the case of a conviction):
● (a) If the person holds a license/ permit:
○ (i) Suspend for period of time court specifies; or
○ (ii) Cancel and disqualify for a period of time the court specifies
● (b)-(c) - as above, holder of interstate/country license, in any other case
(5) if suspension/disqualification period not specified per above, default period is 3 months

Question 5

89A Suspension or cancellation of driver licence or learner permit and driver disqualification—any offence

Answer 5

(1) If a person is found guilty of any offence, the Court may:
(a) -(c) as above (2) as above, 3mth default period.
(3) *if make an order under this section must at contemporaneously cause to be entered into the records of the court the fact it is an order made under this section and the offence/offences of which the person was found guilty or convicted.
(4) This section doesn’t apply to an offender found guilty/convictied of (a) SMVO or offence referred to in 89(3) or 89(4) (police chase neg driving and stealing MV) or (b) an offence under the Road Safety Act.

Question 6

89B Commencement of period of disqualification (on day order is made or any later day specified by court)

Answer 6

89B Commencement of period of disqualification (on day order is made or any later day specified by court)

Question 7

89C Finding on cancellation of driver licence or learner permit or driver disq.

Answer 7

(1) Subject to (2), a court, in addition to making an order under s 89(1), (3) or (4), may make a finding that the offence was committed while the offender was under the influence of alcohol or drugs, which contributed to the offence.
(2) if person is found guilty of an offence under s 318(1) of the CA and the culpable driving is constituted by behaviour referred to paragraphs (c), (d) or both of that Act, in addition to making an order under s 89(1), the court must make a finding that the offence was committed while offender was under the influence of alcohol or drugs, which contributed to the offence. If they don’t, that order is taken to have been made.

Question 8

89D Presumption in favour of concurrency

Answer 8

(1) (a)-(c) presumption in favour of concurrency re suspension, (2)(a)-(c) disqualification, unless court orders otherwise.
(3) Doesn’t apply if road safety act/regs require suspension/disqualification be cumulative.

Question 9

89DA Cancellation on disqualification

Answer 9

• if court disqualifies without cancelling expressly a license, the license or permit is, unless specified otherwise, taken to have been cancelled by that order

Question 10

89DB Effect of cancellation - A driver licence or learner permit cancelled by a court under this Act is of no effect.

Answer 10

89DB Effect of cancellation - A driver licence or learner permit cancelled by a court under this Act is of no effect.