Most dangerous driving offences are not penalty notice offences
A number of offences in New South Wales address driving that causes death or injury or that has the potential to endanger the public. Most of those offences can result in serious penalties, including lengthy terms of incarceration.
Nearly all convictions of a dangerous driving offence can have a negative impact on driving privileges, including driver’s licence disqualification. In some cases, disqualification is mandatory.
Most dangerous driving offences are not penalty notice offences. Since the consequences of a conviction can be severe, you should obtain legal advice if you are arrested for or charged with an offence that involves dangerous driving.
Dangerous driving occasioning death
Section 52A of the Crimes Act 1900 (NSW) defines “dangerous driving occasioning death” as follows:
- A driver was involved in an impact.
- The impact caused another person’s death.
- At the time of the impact, the driver was
- under the influence of alcohol or a drug, or
- driving at a dangerous speed, or
- driving in a dangerous manner.
“Impact” includes a collision with another vehicle or any object, overturning the vehicle, or causing a passenger to be fully or partially ejected from the vehicle.
The accused has a defence if the death was not in any way caused by the driver being under the influence or by the driver’s dangerous driving. In other words, if the impact was another person’s fault and the death would have happened regardless of the accused’s condition or driving, the accused is not guilty of the offence.
The offence of dangerous driving occasioning death carries a maximum sentence of 10 years in prison unless the offence was aggravated. The offence is aggravated if the driver:
- had a blood alcohol concentration (BAC) of 0.15% or higher; or
- was exceeding the speed limit by more than 45 kph; or
- was trying to escape police pursuit; or
- was very substantially impaired by consumption of one or more drugs.
An aggravated offence of dangerous driving occasioning death carries a maximum sentence of 14 years in prison.
Dangerous driving occasioning grievous bodily harm
Section 52A of the Crimes Act 1900 (NSW) defines “dangerous driving occasioning grievous bodily harm” as follows:
- A driver was involved in an impact.
- The impact caused grievous bodily harm to another person.
- At the time of the impact, the driver was
- under the influence of alcohol or a drug, or
- driving at a dangerous speed, or
- driving in a dangerous manner.
“Impact” includes a collision with another vehicle or any object, overturning the vehicle, or causing a passenger to be fully or partially ejected from the vehicle. “Grievous bodily harm” is defined as a really serious injury.
The accused has a defence if the grievous bodily harm was not in any way caused by the driver being under the influence or by the driver’s dangerous driving. In other words, if the impact was another person’s fault and the grievous bodily harm would have happened regardless of the accused’s condition or driving, the accused is not guilty of the offence.
The offence of dangerous driving occasioning grievous bodily harm carries a maximum sentence of 7 years in prison unless the offence was aggravated. The offence is aggravated if the driver:
- had a blood alcohol concentration (BAC) of 0.15% or higher; or
- was exceeding the speed limit by more than 45 kph; or
- was trying to escape police pursuit; or
- was very substantially impaired by consumption of one or more drugs.
An aggravated offence of dangerous driving occasioning grievous bodily harm carries a maximum sentence of 11 years in prison.
- Injuries by furious driving or racing
Section 53 of the Crimes Act 1900 (NSW) defines the crime of “injuries by furious driving” as causing bodily harm to another person by engaging in furious driving, racing, or other misconduct or willful neglect. That offence carries a maximum sentence of 2 years in prison.
Furious driving is driving of a type that endangers the lives of passengers or other users of the road. It is generally regarded as a willful, wanton, or malicious act. The willful state of mind required for furious driving is different from that required for reckless or negligent driving.
Furious or reckless driving
Section 117(2) of the Road Transport Act 2013 (NSW) makes it an offence to drive furiously, recklessly, or in a manner or at a speed that endangers the public. The offence does not require proof that an injury occurred. A first offence carries a 9-month maximum term of imprisonment. The maximum increases to 12 months for a second or subsequent offence.
Furious driving is driving of a type that endangers the lives of passengers or other users of the road. It is generally regarded as a willful, wanton, or malicious act. Reckless driving is knowingly driving in a way that creates a serious and obvious risk to the safety of others without giving any thought to that risk.
Driving in a manner that is dangerous to the public and driving at a speed that is dangerous to the public are separate but overlapping ways of violating section 117(2). The offence requires an objective examination of the facts. The danger created by the driving must actually or potentially exist. For example, driving at a high rate of speed on a rural road where no other traffic or people are present violates speeding laws but it does not violate section 117(2) because the high-speed driving endangers no person’s safety.
Predatory driving
- Section 51A of the Crimes Act 1900 (NSW) is violated when a driver pursues or travels near another vehicle and
- engages in conduct that causes or threatens an impact with the other vehicle, or
- intends to cause actual bodily harm to an occupant of the other vehicle.
- “Impact” includes a collision with another vehicle or any object, overturning the vehicle, or causing a passenger to be fully or partially ejected from the vehicle.
The maximum sentence of imprisonment for the offence of predatory driving is 5 years.
Menacing driving
- Menacing driving is defined by section 118 of the Road Transport Act 2013 (NSW) as driving in a manner that menaces another person:
- with the intent to menace that person, or
- when the driver ought to have known that the other person might be menaced.
Menacing driving can create either a threat of personal injury or a threat of property damage. The offence need not occur on a road. Driving toward someone with the intent to frighten that person (or knowing that the other person might be frightened) is an example of menacing driving.
Driving with the intent to menace carries a maximum sentence of 18 months in prison for a first offence or 2 years for a second or subsequent offence.
Menacing diving when the driver ought to know that another person might be menaced carries a maximum sentence of 12 months in person for a first offence or 18 months for a second offence.
Negligent driving occasioning death or grievous death or grievous bodily harm
Negligent driving is prohibited by section 117(1) of the Road Transport Act 2013 (NSW). Negligent means careless. Courts define negligent driving as driving with less care than is generally expected of ordinary drivers under the same circumstances.
To decide whether driving was negligent, a court must consider the circumstances that existed at the time of driving, including:
- the nature and condition of the road,
- the amount of traffic on the road, and
- obstructions or hazards on the road.
For example, driving near the speed limit might be perfectly safe under ordinary conditions, but might be negligent if a heavy rain has made the road slippery or if the road is obstructed by a load that fell from a truck.
When negligent driving causes a death, the maximum sentence of imprisonment is 18 months for a first offence or 2 years for a second or subsequent offence.
When negligent driving causes great bodily injury, the maximum sentence of imprisonment is 9 months for a first offence or 1 year for a second or subsequent offence.
Negligent driving that does not cause injury or death is penalized by a fine only. It is usually dealt with by a penalty notice.