Penalties and other consequences for driving offences

When driving a vehicle you may end up in the unfortunate situation that you have to face charges of negligent or dangerous driving.

You need to know the law relating to these driving offences and the possible penalties that may be imposed if convicted of one of these driving offences. The circumstances of each case will determine what offence you will be charged with.

Dangerous driving occasioning death

If you were involved in an accident in which someone lost his/her life, you may be charged with the offence of dangerous driving occasioning death. Whether you are charged will depend on the circumstances at the time of the accident. If convicted the maximum penalty is 10 years imprisonment.

The Law

Section 52A (1) of the Crimes Act states that a person is guilty of the offence of dangerous driving occasioning death if:

The vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle:

• Under the influence of intoxicating liquor or of a drug, or
• At a speed dangerous to another person or persons, or
• In a manner dangerous to another person or persons.

What must the police prove for a conviction?

It is obvious that the police must prove beyond a reasonable doubt that:

• You (the accused) are the person who committed the offence, ie was driving the vehicle at the time of the accident, and
• A person died as a result of the accident

It is further necessary for the police to prove that you drove the vehicle at the time under the influence of intoxicating liquor or of a drug, or in a dangerous manner, or at a dangerous speed. They can prove that through any of the following:

• The vehicle overturned, or left the road whilst conveying the deceased in or on that vehicle
• A collision (impact) between the vehicle and any object, whilst the deceased was in or on the vehicle
• A collision between the deceased and the vehicle
• A collision between your vehicle and another vehicle or,
• A collision between your vehicle and an object in which, or on which, or near which, the deceased was at the time of the impact.
• An impact with anything on, or attached to your vehicle
• An impact with anything falling from the vehicle

In which court will you appear for this offence?

Dangerous driving causing death is an indictable offence - this means it is a serious offence that will be tried before a judge and a jury. So you will have to appear in the District Court before a judge.

What are the penalties if you are convicted?

The maximum penalty is 10 years imprisonment. If there are aggravating circumstances you may face a maximum penalty of 14 years in prison. In such circumstances you will be convicted of dangerous driving occasioning death in circumstances of aggravation.

Do you have a defense if you are charged with dangerous driving causing death?

• You may have a defense in terms of Sec 52A of the Crimes Act, if the death was not in any way caused by, or linked to
• The fact that you (the accused) were under the influence of intoxicating liquor or drugs, or both, or
• The speed at which you were driving, or
• The manner in which you were driving.

Other possible defenses include Duress and Necessity.

What is Duress?

To claim the defense of duress you must prove that you acted in the way you did because of an extremely serious threat to you or your family. The threat must involve death or serious injury to you or your family. This is not a common defense in criminal cases, but if you want to use this defense, you will have to present evidence to prove the defense. This is not an easy task.

What is Necessity?

This defense is similar to self-defense. You must be in an urgent situation and honestly believe (on reasonable grounds) that you have to act in this way (that constitutes the offence) in order to avoid the imminent danger. Your actions must also be in proportion to the danger.

If you are charged with Dangerous driving occasioning death, you are facing serious penalties and the possible defenses might be very difficult to prove. You should get legal advice as soon as possible.

Dangerous Driving occasioning Grievous Bodily Harm

If you were involved in an accident in which someone sustained really serious injuries, you may be charged with the offence of dangerous driving occasioning grievous bodily harm. Whether you are charged will depend on the circumstances at the time of the accident. The maximum penalty if convicted is 7 years imprisonment.

The Law

Sec 52A(iii) of the Crimes Act states that a person is guilty of the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle

• Under the influence of intoxicating liquor or of a drug, or
• At a speed dangerous to another person or persons, or
• In a manner dangerous to another person or persons.

The courts have stated that “grievous bodily harm” means a really serious injury.

What must the police prove for a conviction?

The police must prove beyond a reasonable doubt that,

• You (the accused) was driving the vehicle at the time of impact, and
• That grievous bodily harm was caused to the other person.

It is further necessary for the police to prove that you drove the vehicle at the time under the influence of intoxicating liquor or of a drug, or in a dangerous manner, or at a dangerous speed. They can prove that through any of the following:

• The vehicle overturned, or left the road whilst conveying the injured person in or on that vehicle
• A collision (impact) between the vehicle and any object, whilst the injured person was in or on the vehicle
• A collision between the injured person and the vehicle
• A collision between your vehicle and another vehicle or,
• A collision between your vehicle and an object in which, or on which, or near which, the injured person was at the time of the impact.
• An impact with anything on, or attached to your vehicle
• An impact with anything falling from the vehicle

In which court will you appear for this offence?

Dangerous driving occasioning grievous bodily harm is a Table 1 offence. This means that you will appear in the Local Court, but the District Public Prosecutor or you (the accused) can elect to have the matter placed before the District Court.

What are the penalties if you are convicted?

If you are convicted of this offence the maximum penalty is 7 years imprisonment. If there are aggravating circumstances you may be convicted of Aggravated dangerous driving occasioning grievous bodily harm, and you may face a maximum sentence of 11 years imprisonment.

Do you have a defense if you are charged with dangerous driving causing grievous bodily harm?

Sec 52A(iii) of the Crimes Act provides a defense if the grievous bodily harm was not in any way caused by, or linked to,

• The fact that you (the accused) were under the influence of intoxicating liquor or drugs, or both, or
• The speed at which you were driving, or
• The manner in which you were driving.

Other possible defenses include Duress and Necessity.

If you are charged with the offence of dangerous driving occasioning grievous bodily harm you should get legal advice as soon as possible. You are facing a serious offence with serious penalties.

Negligent Driving Occasioning Death

If you where the driver of a vehicle involved in an accident that caused the death of another person, you may be charged with the offence of negligent driving occasioning death. You will face serious penalties upon conviction.You should get legal advice as soon as possible – it is a serious offence and you will lose your licence upon conviction.

How will you be charged?

You will receive a Court Attendance Notice on the scene of the accident, or in the following weeks or months. You may also be arrested, depending on the circumstances, and held by the police.

What will the penalty be upon conviction?

The penalties upon a conviction may be serious. You may be faced with:

• Having a criminal conviction recorded against your name, 
•  A licence disqualification,
•  A fine, and
• Possibly a custodial sentence.

How long will you lose your licence for?

If convicted for negligent driving occasioning death, your licence may be automatically disqualified for 3 years. The court may reduce the disqualification period to the minimum period of 12 months, in appropriate circumstances. Your lawyer can address the court regarding such circumstances

Negligent driving occasioning grievous bodily harm

If you are involved in an accident, the nature of the injuries, will determine if you are charged with the offence of negligent driving occasioning grievous bodily harm. You may end up losing your licence for a period of time.

What constitutes grievous bodily harm?

The court defines grievous bodily harm as a really serious injury. So if the person sustained minor injuries, like bruising, it will not be considered grievous bodily harm. If the person suffered major cuts or broken bones, you may be at risk of being charged with the offence of negligent driving occasioning grievous bodily harm.

How will you be charged with this offence?

Once the police have investigated the circumstances of the accident, they may decide to charge you. You will then receive a Court Attendance Notice in the weeks or months after the accident. In certain circumstances the police may arrest and hold you in custody. You should get legal advice if you are charged with this offence.

What will the penalty be upon conviction?

The penalties upon a conviction may be serious. You may be faced with:

• Having a criminal conviction recorded against your name, and
•  A licence disqualification, as well as,
•  A fine may be imposed.

How long will you lose your licence for?

If convicted for negligent driving occasioning grievous bodily harm, your licence may be automatically disqualified for 3 years. The court may reduce the disqualification period to the minimum period of 12 months, in appropriate circumstances. Your lawyer can address the court regarding such circumstances.

Can you escape a conviction?

Get legal advice as soon as possible, especially if you are particularly concerned about a licence disqualification, or having a criminal record. There are certain exceptional cases where the court may use its discretion and impose a sec 10 non-conviction order. You will need a lawyer to argue your case before the court.

Driving in a manner dangerous to the public

Sec 319(1) of the Crimes Act stipulates that if you drive your motor vehicle on a public road in a manner that the court considers dangerous to the public, you may be convicted of the offence of driving in a manner dangerous to the public. You may face severe penalties upon conviction.

What constitutes dangerous driving?

Legislation does not define “dangerous” driving, so we need to look at what the court has said in past cases to establish what constitutes dangerous driving. In the case of McBride v The Queen the court stated that the driving may be dangerous if it was intrinsically dangerous in all circumstances, or if it was dangerous in the particular circumstances surrounding the incident. They further stated: “The concept… requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others”. So the court will look at the particular circumstances of your driving and whether it was actually potentially dangerous to members of the public in the vicinity of the driving.

What are the penalties upon conviction?

If you are convicted the court must disqualify you from driving. You will receive the automatic period of disqualification, unless you can convince the court not to impose such a period.

For a 1st offence the penalty is:

• A maximum fine of $2200.00 and/or 9 months imprisonment.
• An unlimited maximum disqualification period
• A minimum disqualification period of 12 months
• An automatic disqualification period of 3 years

For a 2nd or subsequent offence:

• A maximum fine of $3300.00 and/or 12 months imprisonment
• An automatic disqualification period of 5 years
• An unlimited maximum disqualification period
• A minimum disqualification period of 2 years

Can you escape a disqualification?

The only way to avoid a disqualification is if the court deals with your matter by way of non-conviction. As with any offence, even after a finding of guilt a court can still decide not to record a conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999. The court has a discretion and may decide not to record a conviction, regardless of how bad your traffic record is. If charged with this offence you should get legal advice. A lawyer can assist you in arguing for a sec 10 non-conviction if found guilty.                  

Driving at a speed dangerous to the public

If you were caught driving your vehicle at a speed that is considered by the court to be dangerous to the public, you may be charged with the offence of driving at a speed dangerous to the public. The maximum penalty is 20 penalty units or 9 months imprisonment.

The Law

The Law states that it is an offence of Driving at a speed dangerous to the public, if you drive your vehicle furiously, recklessly, or at a speed, or in a way that is dangerous to the public, on a road or road related area. In deciding whether you are guilty of the offence the court must take into account all the circumstances of the case, including:

• The nature, condition and use of the road (or road related area) where the offence was allegedly committed, and
• The amount of traffic on, or that might reasonably be expected to have been on the road (or road related area).

What must the police prove for a conviction?

• The police must prove beyond a reasonable doubt that:
• You (the accused) was the driver committing the offence
• Your speed exceeded the legal speed limit
• The area where you committed the offence was likely to have people present at the time.

What are the penalties if you are convicted?

The maximum penalty is 20 penalty units or 9 months imprisonment for a 1st offence.

For a 2nd offence it is 30 penalty units or 12 months imprisonment.

Do you have a defense if convicted of driving at a speed dangerous to the public?

You may be able to claim Duress or Necessity as a defense.

Neither of these defenses is easy to succeed with in court. You will need a lawyer to assist you when charged with Driving at a speed dangerous to the public

7. Hoon offences

Hoon offences refer to driving offences that are highly dangerous or anti-social. It includes offences where the driver drives carelessly at excessive speeds, is involved in street racing, causes tyres to lose traction, plays loud music and causes excessive smoke or noise. You may end up losing your vehicle if convicted of such a sanctionable offence.

What are sanctionable offences?

The penalties we are looking at in this section may be imposed when you (the driver) commit what is referred to as sanctionable offences.

A sanctionable offence includes:

• Exceeding the speed limit by more than 45kph
• Street racing, attempts on speed records or any other speed trial
• Burnouts, Donuts, Wheelies – also referred to as Aggravated loss of traction offences
• Evading police

What penalties may you face upon conviction?

From July 2012 the police has even more powers against drivers committing certain serious traffic offences. They may now take action against your vehicle if you are caught for a sanctionable offence. You may end up losing your vehicle in addition to paying a fine and losing your licence.

What can the police do?

• The police may confiscate your number plates.
• If you are caught committing a sanctionable offence,
• They may remove and confiscate your number plates, or
• They may give you a notice to remove the plates and hand the plates in to the Police within a given time (maximum of five business days from the offence).
• The plates are confiscated for 3 months. Failing to produce your number plates, or driving the vehicle during that confiscated period is an offence.
• The police may detain and impound your vehicle
• The police may take charge of your vehicle and impound the vehicle, or

They may give you a notice instructing you to produce the vehicle to the Police within a given period (maximum of five business days from the offence).

The police must impound your seized vehicle for 3 months. Failing to produce the vehicle in the specified time is an offence.

Automatic forfeiture of your vehicle

Your vehicle will automatically be forfeited to the Crown, if:

• The Court convicts you for a second or subsequent offence within 5 years,
• You use a vehicle that has confiscated number plates, or
• You made a false statement in an attempt to have your number plates or impounded vehicle released.

Once your vehicle is forfeited to the Crown, the Police may sell your vehicle or use it for crash testing.

Take note: If you can convince the court that forfeiture of your vehicle will cause extreme hardship to you or another person, the court that convicted you, can order that the forfeiture be replaced by an impounding order or that your number plates will be confiscated.

Can your number plates or impounded vehicle be released early?

You may apply at the Local Court for an early release. The court cannot order the release within 5 working days of the confiscation or impounding.

In considering your application the court will take a full range of factors and circumstances into account. For example:

• The public safety and interest in not releasing a motor vehicle that is reasonably likely in all the circumstances to be used again for sanctionable offences.
• The fact that a person, who is not the registered operator (you) of the vehicle, suffers extreme hardship as a result of the impoundment or confiscation of the number plates.

Take note: You will have to pay all outstanding fees relating to the movement, storage and towage of your impounded vehicle, or the release of number plates, before your vehicle may be released.

Losing your car (on top of a fine and losing your licence) is a very serious penalty that you may face for an action that you may have committed in a moment of not thinking about the consequences of “just racing to the next stop sign”. If you find yourself charged with a sanctionable offence, it is advisable to get a legal advice as soon as possible.Any traffic or driving offence can lead to serious penalties upon conviction. It will be wise to get a lawyer on your side as soon as possible.