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We all get hot under the collar at some point in our driving career. Whether it’s because someone has disobeyed road rules and cut us off, nearly causing a collision, or someone failing to let us merge on a busy highway. It can be tempting to chase after that person to let them know their wrong doing. However, predatory driving is a major driving offence.
If you have been charged with predatory driving offences, contact our office for a free initial consultation from one of our criminal lawyers.
In New South Wales, predatory driving is an obscure offence that should fall under traffic law but is actually a crime under section 51A of the Crimes Act 1900 (NSW). It is a major offence and therefore, being convicted of this offence may result in a criminal conviction, criminal record and imprisonment. This can have a significant long term impact on your life. A criminal conviction can impact on your employment, family law proceedings, ability to get car insurance, etc.
In Australia, the prosecution is required to prove all elements of the offence beyond reasonable doubt. It is up to the discretion of the prosecution whether your matter will be dealt with summarily in the Local Court or on indictment in the District Court. Usually the offence of predatory driving is prosecuted in the Local Court.
Predatory driving offence
If you are the driver of a vehicle and you, while in pursuit of or travelling near another vehicle –
- Engage in a course of conduct that causes or threatens an impact involving the other vehicle, and
- Intend by that cause of conduct to cause a person in the other vehicle actual bodily harm,
You are guilty of an offence.
An impact involves:
- An impact with any other vehicle or with a person or object, or
- The vehicle overturning and leaving the ground.
- The maximum penalty for this offence is 5 years imprisonment.
The licence disqualification period for this offence is:
- First major offence in 5 years = 3 years automatic disqualification. It can be reduced to 12 months.
- Second or subsequent offence in 5 years = 5 years automatic disqualification. It can be reduced to 2 years.
If your licence is disqualified, you cannot drive while serving the disqualification period. If you do, it can result in further charges. For further information about licence disqualifications, click on the Traffic Law link above.
A major offence includes the following traffic offences:
- Predatory driving
- Police pursuits
- Dangerous driving
- Failing to stop and assist
- Negligent driving occasioning death or grievous bodily harm
- Furious or reckless driving
- Menacing driving
- Driving with more than the prescribed concentration of alcohol (drink driving)
- Driving under the influence of drugs
A major offence also includes the following criminal offences:
- The death of another person caused by or arising out of the use of a motor vehicle resulting in a conviction for murder or manslaughter
- Wounding or grievous bodily harm with intent
- Reckless grievous bodily harm or wounding
- Injuries by furious driving, etc
- Causing grievous bodily harm
Summary Court Process (Local Court):
If your matter is being dealt with summarily by the prosecution, your matter will appear in the Local Court. The Local Court process is as follows:
- Contact Jameson Law for a free initial consultation. If you are pleading guilty, we may be able to negotiate a less serious charge.
- 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)
- You should use this time to gather any supporting evidence such as character references.
- 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 make their decision and issue a sentence where appropriate.
Local Court sentencing options:
There are many sentencing options available to the Local Court. These options are available where no serious injury or death has resulted from the predatory driving offence. Pleading guilty at the earliest opportunity may entitle you to a 25% reduction in your sentence. However, you should not plead guilty until you have received legal advice, to ensure the best possible outcome for your matter.
A section 10 is the best possible outcome in the event the court finds you guilty of a predatory 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/criminal 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
- 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.
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 of the predatory driving offence 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.
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.
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Frequently Asked Questions.
Yes. Menacing driving is a traffic offence covered under the Road Transport Act. There are two categories:
- Intent to menace – Maximum penalty is a fine of $3,300, 18 months imprisonment or both (first offence) and $5,500, 2 years imprisonment or both (second or subsequent offence).
- Possibility of menace – Maximum penalty is a fine of $2,200, 12 months imprisonment or both (first offence) and $3,300, 18 months imprisonment or both (second or subsequent offence).
Menacing driving is a lesser charge that may be negotiated in place of a predatory driving charge. For advice about negotiating your charges, contact our office for a free initial consultation.
No. Predatory driving a serious criminal offence and the court will not consider lifting a disqualification period under the licence disqualification reforms. You cannot drive any vehicle while serving a disqualification period. If you do, you may be convicted of additional offences. For further information about driving while disqualified, click on the Traffic Law link above.
Yes. Some defences available for predatory driving include:
Necessity – you were required to commit the offence. For example, a police officer in the execution of their duties
Duress – someone made you do it
You were not the driver at the time of the offence
You did not engage in the conduct you are accused of.
While defences are available, you are required to have proof to support your defence. This may include witnesses, dash camera footage, etc. For further information about defences and proof, contact our office for a free initial consultation.
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