DANGEROUS DRIVING

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Is dangerous driving a serious offence?

Dangerous driving is a serious offence. While the offences the make up the conduct leading to dangerous driving are traffic offences (e.g. speeding, red light offences, drink driving, etc), the offence of dangerous driving (resulting in grievous bodily harm or death) itself is a criminal offence under the Crimes Act 1900 (NSW) as they are considered serious traffic offences. 

Traffic law and criminal law are complex, especially when they involve the death or grievous bodily harm of another person. If you have been charged with dangerous driving offences, don’t risk it. Seek legal advice immediately. Contact our law firm for a free initial consultation from our expert traffic lawyers.

What is dangerous driving?

There is no strict definition of dangerous driving set out in the legislation. The courts have established that dangerous driving is the risk of danger posed to other road users through your actions and conduct as the operator of a motor vehicle.  

Dangerous driving consists of two offences under the Crimes Act 1900 (NSW):

  • Dangerous driving occasioning grievous bodily harm, and
  • Dangerous driving occasioning death. 

Examples of actions and conduct posing a risk of danger to other road users includes but is not limited to:

  • Exceeding the speed limit 
  • Red light camera offences
  • Casual behaviour or momentary lapse of judgment
  • Falling asleep while driving
  • Driving under the influence of alcohol (drink driving)
  • Driving under the influence of drugs (drug driving) 

Dangerous driving offences are strictly indictable offences. This means they are prosecuted in the District Court.  

The Road Transport Act 2013 (NSW) has a section on driving in a manner dangerous to the public. While this is still a serious offence, it is less serious than the criminal offence of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm as it applies to conduct rather than injury or death of another person. It will likely be prosecuted in the Local Court. Factors taken into consideration by the court are the same,  however, the penalty for this offence is:

First offence = a fine of $2,200, 9 months imprisonment or both

Second and subsequent offence = a fine of $3,300, 12 months imprisonment or both.

What does the prosecution need to prove?

Dangerous driving is a strict liability criminal offence. Like all criminal law matters, the prosecution must prove all the elements of the offence beyond a reasonable doubt. Strict liability means that the prosecution only needs to prove that you committed the offence, not that you intended to commit the offence.

Breaching the road rules is not enough to prove dangerous driving. The courts look to the risk of harm arising from the conduct rather than the end result of impact. The prosecution must prove that the manner of driving was dangerous in the circumstances which it took place – such as the time of the offence, condition of the road surface, weather conditions and the general area the vehicle was being driven. 

Your conduct will be assessed by the courts in accordance with an objective community standard that applies to all drivers. The courts do not consider your personal attributes when making this assessment e.g. driving ability, etc. 

The prosecution has the discretion to decide how a charge of dangerous driving will be prosecuted. If you have been charged with dangerous driving that has not resulted in injury or death, your matter will likely be heard in the Local Court. If your matter resulted in the death or grievous bodily harm of another person, you matter will be heard in the District Court. 

If you plead guilty to the offence, your matter will proceed straight to sentencing. The prosecution is not required to prove anything. If you plead guilty at the earliest possible opportunity, you may be entitled to a 25% reduction in your sentence. However, before pleading guilty, you should seek legal advice from our experts to ensure the best possible outcome for your matter.

Police roadside powers

After an accident involving the death or grievous bodily harm of a person, the Police have a number of roadside powers. Examples include:

  • Request proof of identification e.g. driver’s licence. Failure to provide identification to police may result in being arrested to ascertain your identity and result in a fine of $349 and the loss of 3 demerit points.
  • Conduct a breath test. If you return a positive roadside breath test, a police officer has the power to arrest you for the purpose of conducting a breath analysis on a BAS machine.
  • Conduct a roadside sobriety test if you return a negative roadside breath test and exhibit behaviour that would suggest you are under the influence of drugs. 
  • Arrest you based on the seriousness of the offence, altering or tampering with the concentration of alcohol or drugs in your system (e.g. continuing to drink alcohol after the accident), refusing to submit to a breath test or provide samples, for mandatory blood tests, etc.
  • Suspend your driver licence on the spot or within 48 hours of being charged. The suspension remains in place until and while your matter is being dealt with by the court. If the court finds you guilty, you will be disqualified from driving. You must not drive while your licence is suspended or disqualified. If you do, you can be charged with driving while suspended or driving while disqualified. For further information about licence suspensions, disqualifications and appeals click on the Traffic Law link above.
  • Issue an infringement notice for additional alleged offences such as red light offences.

Dangerous driving offences

Dangerous driving occasioning death

If you drive a vehicle and you are involved in a car accident causing the death of another person and at the time of the car accident, you were driving:

  • Under the influence of intoxicating liquor or a drug; or
  • At a speed dangerous to another person or persons; or
  • In a manner dangerous to another person or persons

The maximum penalty for this offence is 10 years imprisonment.

Aggravated dangerous driving occasioning death

If you commit this offence in circumstances of aggression, the maximum penalty is 14 years imprisonment.
Aggravating circumstances include but are not limited to:

  • Element and nature of injuries inflicted
  • Number of people put at risk
  • Degree of speed
  • Degree of intoxication or of substance abuse
  • Erratic or aggressive driving
  • Competitive driving or showing off
  • Length of the journey during which others were exposed to risk
  • Ignoring warnings
  • Escaping police pursuit
  • Degree of sleep deprivation
  • Failing to stop

Dangerous driving occasioning death

If you are driving a vehicle involved in a car accident causing grievous bodily harm to another person and at the time of the car accident, you were driving: 

  • Under the influence of intoxicating liquor or of a drug
  • At a speed dangerous to another person or persons
  • In a manner dangerous to another person or persons
  • The maximum penalty for this offence is 7 years imprisonment.

If you commit this offence in circumstances of aggression, the maximum penalty is 11 years imprisonment. Aggravating circumstances include but are not limited to:

  • Element and nature of injuries inflicted
  • Number of people put at risk
  • Degree of speed
  • Degree of intoxication or of substance abuse
  • Erratic or aggressive driving
  • Competitive driving or showing off
  • Length of the journey during which others were exposed to risk
  • Ignoring warnings
  • Escaping police pursuit
  • Degree of sleep deprivation
  • Failing to stop

Failing to stop and assist after vehicle impact causing death or grievous bodily harm

You are guilty of an offence if:

  • You drive a vehicle and you are involved in an impact causing the death of another person, and
  • You know, or ought to reasonably know, that the vehicle has been involved in an impact occasioning the death of, or the grievous bodily harm of another person, and 
  • You fail to stop and give any assistance that may be necessary and that is in your power to give.

The maximum penalty for this offence is 10 years imprisonment.

You are guilty of an offence if:

  • You drive a vehicle are involved in an impact causing the grievous bodily harm of another person, and
  • You know, or ought to reasonably know, that the vehicle has been involved in an impact occasioning the death of, or the grievous bodily harm of another person, and 
  • You fail to stop and give any assistance that may be necessary and that is in your power to give.

The maximum penalty for this offence is 7 years imprisonment.

Summary Court Process (Local Court)

  1. Contact Jameson Law for a free initial consultation 
  2. Mention hearing: This is the first court date for your matter. It essentially brings it to the attention of the court. You can plead guilty at this stage after receiving legal advice and the matter will be finalised. If you plead not guilty, the court will adjourn your matter and set another court date. The court will set a date for each party to produce their evidence (brief mention)
  3. You should use this time to gather any supporting evidence such as character references.
  4. Brief mention: Each party must produce their evidence to the court and each other. Another court date will be set for hearing
  5. Hearing: both parties will present their argument to the court. The court will make its decision and issue a sentence where appropriate.

Indictable Court Process (District Court or Supreme Court)

  1. Contact Jameson Law for a free initial consultation
  2. Bail: An application for bail may need to be made if bail isn’t granted earlier
  3. Committal hearing: This a hearing to determine if there is enough evidence to proceed to trial. If there isn’t enough evidence, that is the end of the matter. If there is enough evidence, the matte is adjourned and a new court date is set.
  4. Case conferences: may take place between the committal and the trial. 
  5. Trial: Both parties will present their argument to the court. This can take a number of weeks or months depending on the seriousness of the matter and the number of charges. The jury will make a determination of guilt. If they find you guilty, the court will adjourn and a new date set for sentencing. This gives the judge an opportunity to review the evidence and work out the most appropriate sentence. The court may ask for additional information to inform sentencing such as pre-sentencing reports from Corrective Services, etc.
  6. Sentencing: The judge will hand down his or her sentence and their reasons for the

Local Court sentencing options

There are many sentencing options available to the Local Court. These options are available in circumstances where you have been charged with drive in a manner dangerous rather than dangerous driving occasioning grievous bodily harm or death.

Section 10

A section 10 is the best possible outcome in the event the court finds you guilty of a dangerous driving offence. There are three orders available to the court under section 10 of the Crimes (Sentencing and Procedure) Act where the court believes it is inappropriate to further punish an offender. 

  • Section 10 (1) (a)- dismissal with no conviction recorded
  • Section 10 (1) (b)- dismissal with no conviction on conditions set by the court. For example, not to commit an offence for a period of two years 
  • Section 10 (1) (c)- dismissal with no conviction on the condition that the offender enters into an intervention program. For example drug and alcohol counselling. 

A section 10 is an acknowledgement of the court that you have committed an offence, however, the court is satisfied that it is out of character and you are unlikely to continue offending. It’s the court’s way of giving you a second chance.

Before granting a section 10, the court will consider:

  • Your traffic history. 
  • Your character, antecedents, age, health and mental condition, etc
  • The trivial nature of the offence
  • Extenuating circumstances that lead to the offence being committed 
  • Any other matter the court considers relevant

Intensive Correction Order

Intensive Corrections Orders are an option available to the court where a sentence of imprisonment is imposed on the condition that a defendant is of good behaviour and agrees to supervision by a community corrections officer rather than go to prison. 

Additional conditions that may be imposed by the court include:

  • home detention
  • electronic monitoring
  • curfew
  • community service (up to 750 hours)
  • participation in rehabilitation or treatment programs, for example, drug treatment/counselling
  • no drugs or alcohol
  • refrain from certain relationships/associations, for example, drug dealer, etc.
  • ban from certain locations

Community Correction Order

Community Corrections Orders are similar to Intensive Corrections Orders. The main exception being that a defendant needs to make themselves available to attend court at any time the court requires.

Conditional Release Order

A Conditional Release Order is similar to an Intensive Corrections Order or Community Corrections Order. A Conditional Release Order can be issued with or without a conviction recorded.

Section 32

A section 32 is a diversionary option available under the Mental Health (Forensic Provisions) Act 1990 (NSW). If a defendant is, or at the time the offence of dangerous driving occurred:

  • cognitively impaired
  • suffering from mental illness
  • suffering from a mental condition for which treatment is available in a mental health facility

The options available to a magistrate under a section 32 include:

  • adjourning the matter
  • granting the defendant bail
  • any other order the magistrate deems appropriate
  • dismissing the charges and discharging the defendant into the care of a responsible person (e.g. a parent) on the condition they attend a specified place for assessment or treatment.

Disclaimer

The above is general legal information and should not be considered legal advice. You should speak with one of our criminal lawyers for legal advice tailored to your specific legal matter. The penalties listed are maximum penalties. The courts deal with matters on a case by case basis. It should also be noted that there may be court delays due to COVID-19.

Frequently Asked Questions.

This depends on the seriousness of your traffic offence. If you have received a Court Appearance Notice (CAN), then you will have to go to the Local Court. If you are unsure, just contact us and we can check for you. We can also appear with you, to ensure your legal rights are protected.

If your car or motorcycle was involved in any of the following offences, then the police do have grounds to either impound your vehicle, remove your number plates and attach a ‘number-plate confiscation notice’ and/or send you a ‘production notice’ requiring that you take the car to an impound or hand in your number plates.

These are the sanctionable offences which they can perform the above:

  • some drink driving offences 

  • street racing

  • burnouts

  • a police pursuit

  • speeding by more than 45 km/h (does not include camera detected offences)

  • speeding by more than 30 km/h if you are a disqualified driver (does not include camera detected offences)

The police can also take away your vehicle if you were convicted of drink driving in the last 5 years and now, caught with: 
 
  • mid-range Prescribed Concentration of Alcohol (a blood alcohol concentration of 0.08 or more but less than 0.15)

  • high-range Prescribed Concentration of Alcohol (a blood concentration of more than 0.15)

  • refusing to give a breath test or failing to provide a blood sample, when requesting by police.   

No. If this has happened to you contact us immediately. The police can only impound or take the number plates of the car you are driving if you are the registered owner of the car.

They may however send you a warning notice, and if your vehicle is involved in sanctionable offences in the next 5 years, the registration will be suspended for up to 3 months.

If you have received a warning letter, contact us to look into a resolution especially if you had no involvement in the incident.

Yes. We can help you put an application to the Court showing that you need to use the vehicle. The Court in turn will consider the following:

  • whether it is reasonably likely that the vehicle will be used to commit sanctionable offences again, or
  • any extreme hardship caused to someone other than the registered owner because the vehicle or number plates have been taken away.

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