Written by Amanda Tsang
March 17, 2015
It is safe to say that the majority of the work that I see, as a criminal lawyer, are traffic offences. Traffic offences can range from infringements to drink driving or other driving charges. The perception of these matters as “just traffic offences” (and I hear this at least once a week, if not more often), cannot be sustained.
Think about it: even the smallest cars weigh over 1000 kg and are capable of moving at high speeds and doing significant damage. Effectively, they are weapons.
This week already I have read in the newspapers about Talia Jade Van-Rysewyk who has pleaded guilty to a charge of negligent driving occasioning grievous bodily harm. She collided with a cyclist, throwing him off his bike and leaving him with multiple fractures. I have read about Thomas Kerr, driving into a group of cyclists, injuring seven, some suffering injuries such as serious as spinal fractures. He has been charged with dangerous driving occasioning grievous bodily harm.
The potential for causing serious injury or death makes it important to have a legal system that recognises and punishes poor or irresponsible driving behaviour. It is interesting to note that in both cases, whilst injury to the victims were deemed to be in the same category (grievous bodily harm), and on the face of it involved similar scenarios (a car hitting cyclists), Ms Van Rysewyk was charged with a lesser offence under the Road Transport Act whilst Mr Kerr was charged under the Crimes Act.
It is difficult to comment on the charges laid without a full set of facts. Both can, and likely will, lead to a criminal conviction being recorded. Both can, and likely will, lead to serious penalties, potentially imprisonment, and lengthy licence disqualifications. Yes, you can go to gaol for “just driving offences.”
The difference between these two charges? That is the moral culpability of the offender. This is best explained as, the amount of blame that we, as a society, should attribute to the driver of the car that caused the accident. To prove the offence of negligent driving in NSW the prosecution has a low threshold to cross. Essentially, it is anything a ‘reasonable and prudent’ driver would or would not have done in that situation, taking into account all factors like weather, time of day and type of road. Something like momentary inattention or forgetting to check a blind spot causing an accident could be enough.
Dangerous driving is a more serious charge. The Crimes Act provides that such a charge could be enlivened by one of three situations:-
It requires an action being undertaken that is inherently dangerous. For example, it is arguable that running a red light is inherently dangerous. Every driver should know that their red light means that another light, nearby is green. That means that another set of traffic is using the common road space. Likewise, going over a certain speed in a residential area could also be inherently dangerous, depending on the layout of the roads and the amount of foot traffic. It only makes sense that drivers who commit these offences are subject to heftier penalties, in proportion to their higher moral culpability. After all, it wouldn’t make sense to punish a driver who has caused an accident because he had become distracted swatting a fly in the same way as someone who had deliberately ran a red light and T-boned another car.
In NSW, there is a guideline judgement on dangerous driving charges: R v Whyte (2002) 55 NSWLR 252. It sets out that the most typical case involves a young offender, with limited prior convictions, who had caused death or permanent injury to one person, who is a stranger to them. There would also be genuine remorse shown by the driver and a plea of guilty entered into at the first available opportunity.
A list of aggravating factors are also set out. The more of these factors that are present, the higher the driver’s moral culpability in the eyes of the Court:-
It is evidence of how seriously the Courts treat these matters when we note that in the guideline judgement it states that unless the driver has a low moral culpability, a custodial sentence will “usually be appropriate.”
I reiterate that we, as a society, need to be aware of the consequences of irresponsible and dangerous driving. We need to have better education and take responsibility for these actions. We cannot merely put them to one side as “just traffic matters”, and do nothing.