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Dangerous and negligent driving

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June 17, 2016

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Matters of person-to-person violence, from one-punch laws through to other less serious offences, seem to dominate debate in parliaments and the media about punishment and sentencing across Australia’s states and territories.

Yet it remains the fact that far more people die on Australia’s roads – with those involved often surprised when they are charged with criminal offences that carry prison terms.

The Bureau of Infrastructure, Transport and Regional Economics reported that there was a total of 112 road deaths in Australia in March 2016, up 6.5 per cent on that month’s average of the past five years.

During the 12 months ended March, there were 1,255 road deaths nationwide – an 11.2 per cent increase compared with the 12 months ended March 2015.

Meanwhile, the Bureau of Statistics recorded 255 murders in 2012 and 42 cases of manslaughter.

What is often forgotten about the persistent height of the road toll (though it is, thankfully, much lower than in previous decades) is that there are almost invariably criminal charges flowing.

Yes, the majority of the cases can properly be classified as accidents, but there are a range of charges that are still laid on a, sadly, virtually daily basis.

Chief among these are negligent driving, with gradations of penalty depending on whether the crash involved death or grievous bodily harm, or little or no injury.

As mentioned, people can be surprised to find themselves charged over road accidents as many of them have long, good driving records.

There are various tests about just what was happening behind the wheel, with particular attention given by the case law to whether there was only “momentary inattention” or something more serious.

These matters are not always clear-cut, and there are cases which can be successfully defended among many where a plea of guilty should be entered and the best possible result on sentence sought.

To navigate your way through the forest of laws and tests, you should consult a specialist criminal and traffic lawyer.

Armstrong Legal’ s team deal only in criminal and traffic matters and their Canberra team can help you, whether your matter is in the ACT or surrounding NSW, where as the following lists show there really is a welter of potential charges, and outcomes.

Negligent driving – NSW and ACT

In NSW, negligent driving occasioning death carries a maximum penalty of 18 months’ imprisonment or a fine of $3300 or both for a first offence and two years and $5500 for a second or subsequent offence. In the ACT, the penalties are two years imprisonment and a maximum fine of $30,000, whether or not it is a first offence or a second and subsequent offence.

In NSW, negligent driving causing grievous bodily harm carries 9 months’ imprisonment and a fine of $2200 or both for a first offence or 12 months and $3300 for a second or subsequent offence. In the ACT, the penalties are 12 months’ imprisonment and/or a fine of $15,000.

In NSW in cases not occasioning death or GBH there is a maximum fine of $1100. Similar cases in the ACT attract a maximum $3000 fine.

Beyond negligent driving come charges where it is alleged that a driver was deliberately doing something wrong. As you would expect, the penalties increase markedly.

Dangerous driving – NSW and ACT

In NSW, dangerous driving occasioning death if the driver was under the influence of intoxicating liquor or of a drug, or driving at a speed or manner dangerous carries a maximum penalty of imprisonment for 10 years or, in an aggravated case, 14 years.

Dangerous driving occasioning grievous bodily harm in the same circumstances carries seven years or, in an aggravated case, 11 years.

“Circumstances of aggravation” means:

  • the driver had the prescribed concentration of alcohol, or
  • the driver was going more than 45km/h over the speed limit, or
  • he/she was driving to escape police, or
  • he/she was very substantially impaired by being under the influence of a drug or a combination of drugs.

The above charges and penalties can be found in the Crimes Act, but other less serious versions of dangerous-driving charges are provided for in the Road Transport Act, where driving furiously, recklessly or at a speed or in a manner dangerous to the public carries a maximum penalty of $2200 and/or imprisonment for 9 months for a first offence or $3300 and/or imprisonment for 12 months for a repeat offender.

In the ACT, the old charge of culpable driving causing death remains in the Crimes Act, with 14 years’ imprisonment as the maximum penalty, rising to 16 years for an aggravated version of the offence.

Culpable driving causing GBH carries 10 years (12 for an aggravated offence). ACT legislation provides, “A person shall be taken to drive a motor vehicle culpably if the person drives the vehicle (a) negligently; or (b) while under the influence of alcohol, or a drug, to such an extent as to be incapable of having proper control of the vehicle…. A person shall be taken to drive a motor vehicle negligently if the person fails unjustifiably and to a gross degree to observe the standard of care that a reasonable person would have observed in all the circumstances of the case.”

In the ACT, furious, reckless or dangerous driving carries, for an especially aggravated offence by a first offender, $45,000 and/or imprisonment for 3 years or for an especially aggravated offence by a repeat offender $75,000 and/or five years’ imprisonment. For any other aggravated offence, the penalties are $30,000 and/or two years, and in any other case $15,000 and/or 12 months.

The specially legislated features of aggravation in the ACT are any of the following circumstances: (i) the person failed to comply, as soon as practicable, with a request or signal given by a police officer to stop the motor vehicle; (ii) the person was driving with the prescribed concentration of alcohol in their blood or breath; (iii) the person was driving with a prescribed drug in their oral fluid or blood; (iv) the person was driving while under the influence of intoxicating liquor or of a drug to such an extent as to be incapable of having proper control of the vehicle; (v) the person was driving at a speed that exceeded the speed limit by more than 30%; (vi) the person was driving in a way that put at risk the safety of a “vulnerable road user”; the person was driving with a person younger than 17 years old in the vehicle.

A “vulnerable road user” is a recently defined concept in ACT law, meaning a road user other than the driver of, or passenger in, an enclosed motor vehicle, and so includes pedestrians, cyclists, motorcyclists, riders of animals, users of motorised scooters and users of segways.

Other charges

A number of other charges can be brought in relation to motor vehicle incidents including, in NSW, predatory driving (five years’ prison), throwing rocks or other objects at vehicles (five years) and not stopping in a police pursuit (three years first offence/five years repeat offence) and, in the ACT, menacing driving (1 year/$15,000). Both jurisdictions have offences of failing to stop after accidents involving injury.

You need to be well prepared to face court on any of the above charges. The team at Armstrong Legal can advise you on whether you have been charged with the appropriate offence, whether there are successful defences or if you should consider obtaining the best sentencing outcome, and just what material, reports and tests might be worth having prepared ahead of your day in court.

About the Author

Andrew represents clients in the ACT Supreme and Magistrates Courts as well as the NSW Local and District Courts of the Canberra region. He appears also before the ACT Civil and Administrative Tribunal in licensing, mental-health and other matters. His breadth of experience allows him to tailor his advice and submissions to ensure the best possible results for his clients. View Andrew's profile

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