NEGLIGENT DRIVING

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Charged or Fined for Negligent Driving? It is serious. Get expert traffic lawyers on your side today.

Being found guilty of a negligent driving offence is a serious criminal law matter which can adversely impact your ability to travel and carry out daily activities. It can also cause financial and emotional distress, especially if your conduct has injured or killed another person.

Often, accidents and other traffic offences occur from a myriad of factors including, mistakes, weather, and road conditions. If you have been charged with a negligent driving offence it is important to obtain legal advice promptly and to seek legal representation. This will maximise the greatest possible outcome.

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    Traffic Offences

    In New South Wales (NSW), traffic offences are major offences. s4 of the Road Transport Act 2013 provides a definition of what a ‘major offence’ is in NSW. This Act, along with the Crimes Act 1900, both deal with traffic offences.Major traffic offences in NSW include:
    • Predatory driving
    • Police pursuits
    • Dangerous driving
    • Failing to stop and assist
    • Negligent driving causing death or grievous bodily harm
    • Furious or reckless driving
    • Menacing driving
    • Driving offences causing death or grievous bodily harm which are prosecuted under any other sections of the Crimes Act 1900.

    What is Negligent Driving?

    Negligence refers to the inability of an individual to behave with the standard of care of an ordinary person under the same circumstances. Therefore, in relation to negligent driving, an individual is negligent when they fail to take proper care whilst driving a motor vehicle. The individual is said not to have behaved with the standard of care of an ordinary person whilst driving.
    • NOTE: s4 of the Road Transport Act 2013 defines ‘motor vehicle’ as “a vehicle that is built to be propelled by a motor that forms part of the vehicle.”
    The offence of negligent driving typically arises where an accident has occurred, however, the manner of the driving does not meet the threshold of other serious offences such as dangerous or reckless driving which involve aggravating factors as found by the court, for example, drink driving or driving under the influence of alcohol, or drug driving. Driving negligently may involve a degree of inattention which results in an accident, or where a driver fails to abide road rules which in turn causes an accident.

    Examples of Negligent Driving

    Other examples of negligent driving include: 

    • Driving at an immoderate speed, especially for the driving conditions, or failing to adhere to the speed limit.
    • Driving whilst fatigued- falling asleep at the wheel.
    • Driving close to the car in front which affects ability to see the road ahead.
    • Failing to take care at intersections.
    • Failing to provide any or moderate warning/ signal when changing directions. 
    • Failing to stop or reduce speed when affected by bright lights or the headlights of other vehicles.
    • Violating traffic signals and road rules.

    Onus and Burden of Proof

    The offence of negligent driving is a strict liability offence. This means that it does not matter whether or not you intended to commit the crime. Instead, it only matters that you actually did commit the offence. Accordingly, you can be found guilty of negligent driving even where you daydream, or where you make a poor judgement in traffic. For a negligent driving offence, the burden of proof is on the prosecution who is responsible for demonstrating beyond reasonable doubt (BRD) that an individual did not take proper care, or did not behave with the standard of care of an ordinary person, when driving a motor vehicle.  Each element must also be proved BRD. This is a high standard of proof that must be reached in order to achieve a conviction. The prosecution must successfully establish the following matters BRD:  

    • Negligence is generally defined as a failure to take proper care. Therefore, it must be proved that an individual failed to take proper care when driving the vehicle. If there is any doubt of this, then an individual is not to be found guilty.
    • That the individual was driving the vehicle, and that it was being driven on a road or other related area.
    • In relation to negligent driving occasioning GBH, it must be proved that GBH occurred due to negligence.
    • In relation to negligent driving occasioning death, it must be proved that death occurred due to negligence.

    The 3 levels of Negligent Driving

    In NSW, the offence of negligent driving is a broad offence that encompasses three levels:

    1. Negligent driving not occasioning death or grievous bodily harm (GBH),
    2. Negligent driving occasioning GBH, and
    3. Negligent driving occasioning death.

    The penalties for the offence of negligent driving also vary between each state in Australia. The severity of an offence and its outcome is reflective of the strict nature of traffic law in Australia.  Generally speaking, the severity of the offence and outcome will also impact the kind of penalty imposed, including how many penalty units or years of imprisonment you are at risk of receiving. The applicable penalties in NSW are outlined below.

    Negligent Driving not Occasioning Grievous Bodily Harm or Death

    Negligent driving is one of the less severe traffic offences. A common situation where an individual is said to have engaged in negligent driving is where a police officer believes a driver of a vehicle to be at fault in a collision.

    Penalties

    This offence is handled by way of a traffic infringement notice, which holds three demerit points. This will be imposed where no accident has ensued, or if there is an accident, then the accident must be minor in nature. The offence is found in s117 of the Road Transport Act 2013.Specifically, s117(1)(c) provides, ” if the driving does not occasion death or grievous bodily harm- 10 penalty units.”
    • NOTE: 1 penalty unit= $110.

    Negligent Driving Occasioning Grievous Bodily Harm

    This is a serious offence which ensues when a driver is negligent, and as a result of this negligence, GBH has been inflicted upon another individual. This offence is outlined in s117 of the Road Transport Act 2013.Specifically, s117(1)(b) provides, “if the driving occasions grievous bodily harm- 20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence).”
    • NOTE: s117(4) provides ” grievous bodily harm includes any permanent or serious disfigurement.” This may include such injuries as broken bones, permanent scarring or burns, or the killing of a foetus.

    Penalties

    There are a number of penalties which may arise from this offence as outlined below. They are severe, including for first time offenders who face the possibility of imprisonment. Once an individual has been convicted, it is mandatory that a licence disqualification be imposed upon the driver.
    1. Maximum court-imposed fine: first offence- $2,200; second or subsequent offence- $3,300.
    2. Maximum prison term: first offence- 9 months; second or subsequent offence- 12 months.
    3. Minimum disqualification: first offence- 12 months; second or subsequent offence- 2 years.
    4. Maximum disqualification: first offence- unlimited; second or subsequent offence- unlimited.
    5. Disqualification in the absence of a specific court order: first offence- 3 years; second or subsequent offence- 5 years.

    Negligent Driving Occasioning Death

    This is the most serious negligent driving offence offence where the negligence of an individual causes the death of another. This offence is found in s117 of the Road Transport Act 2013.Specifically, s117(1)(a) provides, “if the driving occasions death- 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).”

    Penalties

    There are a number of penalties that may rise from this offence:
    1. Maximum court-imposed fine: first offence- $3,300; second or subsequent offence- $5,500.
    2. Maximum prison term: first offence- 18 months; second or subsequent offence- 2 years.
    3. Minimum disqualification: first offence- 12 months; second or subsequent offence- 2 years.
    4. Maximum disqualification: first offence- unlimited; second or subsequent offence- unlimited.
    5. Disqualification in the absence of a specific court order: first offence- 3 years; second or subsequent offence- 5 years.

    Understanding “first offence” and “second or subsequent offence”

    A second or subsequent offence is where an individual has been convicted of a negligent driving offence that has taken place within the past 5 years, or another previous serious offence within the past 5 year, such as a drink driving offence.  Whereas s9(8) of the Road Transport Act 2013 says that a first offence is an offence “if it is not a second or subsequent offence.”

    The Court Process

    Less serious driving offences will generally not require court attendance. You will just be required to pay your imposed fine. However, if you decide to contest any charges, or would like the matter to be dismissed, you may need to appear in the  Local Court, where a magistrate will determine the outcome.

    For more serious driving offences such as negligent driving occasioning death or grievous bodily harm, you may be issued with a Court Attendance Notice (CAN) where you will be required to appear in the Local Court.

    If you suspect that the prosecution will be unable to prove the charge beyond reasonable doubt, you have the option of a non-guilty plea.

    Local Court Proceedings

    The offence of negligent driving is prosecuted in the Local Court. The process is as follows: 

    • Contact Jameson Law for a consultation.
    • Mention hearing: This is the first court date for your matter, and is where the matter is brought to the attention of the court. The court will set a date for each party to produce their evidence (brief mention).

      You can plead guilty at this stage. In reality, this might be a suitable option for you, and may present a better outcome, as it shows that you acknowledge and understand that you were at fault, which may therefore prompt the magistrate or judge to impose a lesser penalty. However, you should first seek advice from a traffic lawyer on the prospects of contesting the charges.

      Alternatively, you may wish to plead not guilty at this stage. The court will adjourn the matter and set another court date. During this time, the evidence from both parties will be examined by our legal team who will aim to identify any problems that arise in the prosecution’s case. Our team will then be in charge of confronting the prosecution with these issues in an attempt to have the prosecution drop the charges. This would be the ideal outcome as it deters the matter away from court, saving time and money for all involved. However, where the prosecution does not wish to have the charges dropped, our legal team will work to build up a case for you to either obtain the lowest possible penalties, or better, to prove your innocence.

      In NSW, the time in which you enter a guilty plea can have a significant impact on the penalty you receive. Generally speaking, it is better to plead guilty at the earliest possible opportunity once you have been charged. There is a maximum discount of 25% which is applied before the committal hearing in the Local Court. There is also a discount of 10% where a guilty plea is entered up to 14 days before the first day of trial in the District Court or Supreme Court. In other circumstances, there is a 5% discount. It is also important to remember that a Judge or Magistrate has discretion in providing a discount. This means that you will not receive a discount where it is believed that you are extremely culpable of the charges, despite your guilty plea. 
    • You should use this time to gather any supporting evidence. We provide assistance in gathering any necessary evidence such as character references and witness statements that may be beneficial towards your case.
    • Brief mention: Each party must produce their evidence to the court and each other. Another court date will be set for hearing. 
    • Hearing: Both parties will present their argument to the court. The court will determine whether you failed to demonstrate the necessary degree of care and attention in the circumstances of the accident, and will also take into account any outstanding traffic and weather conditions that may have contributed to the accident. The court will then impose the most appropriate penalty, including issuing a sentence where appropriate. Any appeals made against the outcome are dealt with in a higher court such as the district court.

      NOTE: Maximum penalties will only be applied in the most severe circumstances.

    Defences

    Entering a not guilty plea also allows you to raise a defence which may help justify your actions. The available defences for a negligent driving charge include:

    • Duress

      Where you were compelled to behave in a certain way because of the circumstances involved, or from threats you received by another person- you drove negligently because you were coerced or threatened to do so.

    • Necessity

      Where your behaviour was necessary in order to avert a more serious outcome- you drove negligently to avoid a greater danger, injury, threat, or you were responding to an emergency.

    • Reasonable Mistake of Fact

      Where you made an honest mistake based on reasonable grounds as to the road rules, speed limit, or traffic signals, which therefore makes your conduct innocent where it would otherwise be unlawful- you were not aware that your conduct was illegal or wrong.

    Other Options at Sentencing

    Our legal team will assist in the preparation of constructive submissions which aim to reduce the possibility of a maximum sentence being imposed. This will include submissions based on good character and your low likelihood of reoffending. These will aim to convince the Judge or Magistrate to be more lenient when using discretion at sentencing. There are multiple alternative penalties that a court may impose at sentencing. These include:

    Section 10 Dismissal

    s10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows a court to use its discretion in dismissing a charge/s, upon an offender pleading guilty. The outcome is that a criminal conviction is not recorded, a good behaviour bond or a fine are not issued, and an offender will not receive a licence suspension or disqualification. Dismissals under s10 are only available where an offender has not committed a previous major traffic offence within a period of 5 years. In considering whether dismissal should be granted, the court will consider various factors, as listed in s10(3) which reads:
     (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors-
     (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,
     (d) any other matter that the court thinks proper to consider.
    The chances of obtaining a s10 dismissal are increased where an offender prepares documentation for the court including gathering references which demonstrate good character, where the offence took place during a difficult period in the offender’s life, and where the offender has taken initiative to attend therapy or counselling, or has sought psychological/ psychiatric assistance.
    The completion of a Traffic Offender Program is also looked significantly and favourably upon by the court. 

    Conditional Release Order (CRO)

    CROs are governed by s9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). These are the most lenient penalty that may be imposed for a traffic offence and can extend for up to a period of two years. If you plead guilty or you are found guilty of a major traffic offence, a conditional release order may allow you to avoid a harsh penalty or possibly even a conviction. In this situation you will also not be fined, you will not lose demerit points, and you will not be disqualified from driving. This is also dependent upon compliance with the conditions that are set for a certain period of time. Such conditions may include not visiting or communicating with certain places or people, participating in rehabilitation programs, and abiding by a curfew. A CRO will likely be imposed in situations where you have good character, no prior criminal history, suffer from a mental health condition, where there are compelling circumstances which explain your conduct, or where the offence is minor.

    Community Correction Order (CCO) 

    CCOs are governed by s8 and Part 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW). They may be thought of as being a type of good behaviour bond, served within the community, lasting for up to three years. Certain conditions that this order holds includes:
     – not committing further offences
     – attending court if required
     – participating in rehabilitation programs
     – abstaining from drugs and/or alcohol
     – not associating with, or visiting particular places or people
     A CCO may be revoked or amended at any time, although the standard requirement of not committing further offences will always apply under any CCO.

    Intensive Correction Order (ICO)

    ICOs are alternative penalties to imprisonment. They are only applied once a court is satisfied that a prison sentence is most appropriate. There are specific rules that a court must follow when imposing an ICO, including:
     – can only be imposed for prison sentences that are two years or less in duration
     – ‘community safety’ is the central reason for imposition
     – an assessment report must be made prior to imposition
    Similar to a CCO, an ICO requires an offender to not commit further offences, and must also be supervised by a community correction officer. Failure to do so may result in a informal warning, imposition of a curfew, and referral to the Parole Authority. In the latter case, additional conditions may be added to the ICO, or alternatively, the ICO may become revoked and the offender will be required to serve imprisonment. 

    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.

    There are two ways you can appeal a red light camera infringement:

    1. Request a review of your fine by Revenue NSW. You can request a review if you believe the fine was issued in error (e.g. your car was parked in your driveway at the time of the offence), you have extenuating circumstances (e.g. you were experiencing a medical episode) or you are requesting leniency because of your good driving history (you have a driving record that has been clear for the past 10 years). You may be required to submit evidence to support your review.
    2. Appeal your matter in the Local Court if you are unhappy with the outcome of the review. You can appeal your matter to the court instead of requesting a review, however, it is recommended you seek a review first to save you time and money. If you appeal your penalty notice to the court and are found guilty, you may receive a harsher penalty.

    Time limits apply. You have 28 days from the date the penalty was issued to apply to Revenue NSW for a review of your penalty or to have your matter heard by the court. To appeal the decision of Revenue NSW, you will have until the date listed on your penalty reminder to lodge your application. If you have already paid your fine, you will have 90 days to lodge your appeal. Make sure you lodge your review or appeal as soon as possible.

    You should check the date the offence is alleged to have occurred and then confirm who was driving your vehicle at the time. If you know who was driving the vehicle, you can nominate the driver on the Revenue NSW website or via stat dec. You will need to know the driver’s name, address, date of birth and the penalty number which is located on the fine. If you cannot remember the driver, you can request a copy of the photo taken, however, you may be required to pay a fee and there is no guarantee the face of the driver was caught on the camera. If you are unable to determine who was driving the vehicle, it is recommended that you seek legal advice.

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