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Negligent and Dangerous Driving Offences

If you have been charged with a negligent or dangerous driving offence, the Local Court Lawyers can help. These offences are taken extremely seriously by the court, given the likelihood of serious injury or death occurring as a result of this offence.

The act of driving a motor vehicle demands that a driver maintain careful control over the vehicle and it rarely allows for a moment of inattention. However, sometimes drivers abandon this responsibility and engage in acts such as: adjusting the radio, looking at a map or GPS, reading a text message, being distracted by other passengers or, intentionally speeding or street racing.

A negligent or dangerous driving conviction will likely result in a loss of license, damage your reputation and remain on your traffic and driving record, and impact your employment  or family commitments. Your driver’s licence may be suspended or you may be disqualified from driving for a period of time.

NEGLIGENT DRIVING

There are 3 levels of negligent driving in New South Wales: –

  1. Negligent driving;
  2. Negligent driving causing grievous bodily harm; and
  3. Negligent driving causing death.

Section 117 of the Road Transport Act NSW 2013 provides that a, ‘person must not drive a motor vehicle on a road negligently’.

Negligent driving is defined as, “driving without the standard of due care and attention reasonably expected of the ordinary prudent driver”.

Section 117 (3) of the Road Transport Act 2013 provides that the Court must have regard to all the circumstances of the case in considering whether or not your driving was negligent, including the following: –

  • Circumstances about the road – e.g. it’s condition;
  • The amount of traffic on or expected to have been on the road; and
  • Any obstructions or hazards on the road (such as broken down or crashed vehicles, fallen loads and accident and emergency vehicles).

What must the prosecution prove?

To establish negligent driving, the prosecution must prove beyond a reasonable doubt that: –

  1. You were driving a motor vehicle on a road; and
  2. That you were not exercising, ‘the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances’.

A “road” means an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles.

Maximum penalty:

  • If the driving does not cause grievous bodily harm or death, the maximum penalty is 10 penalty units. (i.e. no one else is injured, such as negligent driver hitting a road sign or parked car)

Many negligent driving offences are dealt with by way of a traffic infringement notice, incurring only a moderate fine and demerit points. However, if the matter is heard before a Court, upon a finding of guilty, the Court can impose a fine and also has the discretion to disqualify the driver for a period determined by the Court.

To establish negligent driving occasioning grievous bodily harm, the prosecution must prove, beyond a reasonable doubt, the above elements of negligence, and prove that the driving caused: –

  • Bodily injury of a ‘really serious kind’ to another person. This includes any permanent or serious disfiguring of the person, broken bones, loss of a limb, damage to internal organs or the destruction of the foetus of a pregnant woman.

Maximum penalty:

  • If the driving occasions grievous bodily harm, the maximum penalty is 20 penalty units or imprisonment for 9 months or both (first offence); or 30 penalty units or imprisonment for 12 months or both (second or subsequent offence).
  • Automatic disqualification (First Offence) is 3 years. The court has the power to reduce this period to 12 months if the circumstances permit.
  • Automatic disqualification (Second offence) is 5 years. The court has the power to reduce this period to 2 years if the circumstances permit.

To establish negligent driving occasioning death, the prosecution must prove beyond a reasonable doubt and in addition to the above, that: –

  1. A person died as a result of the negligent driving.

Maximum penalty:

  • If the driving occasions death, the maximum penalty is 30 penalty units or imprisonment for 18 months (first offence); or
  • 50 penalty units or imprisonment for 2 years or both (second or subsequent offence).

Automatic disqualification (First Offence) is 3 years. The court has the power to reduce this period to 12 months if the circumstances permit.

Automatic disqualification (Second offence) 5 years. The court has the power to reduce this period to 2 years if the circumstances permit.

If you think that the prosecution will not be able to prove the above elements you may decide to plead not guilty. The Local Court Lawyers will be able to guide you through this process.

MITIGATING FACTORS

The Court may take into consideration certain mitigating factors (having the capacity to reduce your punishment) such as the ‘degree of care and attention’ you used by considering the circumstances surrounding the accident. For example, the weather, the time of the accident, the amount of traffic on the road, etc., in essence: whether or not you did some act that renders you negligent.

The Traffic Offender Intervention Program (“TOIP”) is a local court based program targeting offenders who have pleaded guilty to, or been found guilty of, a traffic offence.

The goal of the program is to provide offenders with the information and skills necessary to develop positive attitudes towards driving and develop safer driving behaviours. Your involvement and successful completion of this program may serve as a mitigating factor and assist in reducing your sentence. The Local Court Lawyers will be able to provide you with more information about this program.

DEFENCES

The Local Court Lawyers will be able to determine whether you have any defences available to you for the offence of negligent driving. These may include: –

  1. Duress – where another person applied pressure or threatened you to drive in a particular manner.
  2. Necessity – also known as the defence of emergency. This would apply if you were compelled by a threat or danger which resulted in you driving negligently.
  3. Reasonable mistake of fact – This is an honest mistake of fact based on reasonable grounds which renders conduct innocent that would otherwise have legal consequences.

FURIOUS, RECKLESS, OR AT A SPEED OR IN A MANNER DANGEROUS

Section 117 (2) of the Road Transport Act 2013 (NSW) provides that a person must not drive a motor vehicle on a road furiously, recklessly or at a speed or in a manner dangerous to the public.

Automatic disqualification (First Offence) is 3 years. The court has the power to reduce this period to 12 months if the circumstances permit.

Automatic disqualification (Second offence) 5 years. The court has the power to reduce this period to 2 years if the circumstances permit.

DANGEROUS DRIVING

The various levels of dangerous driving are set out in section 52A of the Crimes Act 1900 NSW (note: dangerous driving falls under the Crimes Act, not traffic legislation – as in the case of negligent driving): –

  1. Dangerous driving occasioning death; and
  2. Aggravated dangerous driving occasioning death; and
  3. Dangerous driving occasioning grievous bodily harm; and
  4. Aggravated dangerous driving occasioning grievous bodily harm.

A term of imprisonment will usually be appropriate unless an offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement.

What must the prosecution prove?

To establish dangerous driving occasioning grievous bodily harm, the prosecution must prove beyond a reasonable doubt that: –

  1. You were driving the vehicle;
  • Under the influence of intoxicating liquor or of a drug; or
  • At a speed dangerous to another person(s); or
  • In a manner dangerous to another person(s). An example of when the law finds it is not negligent driving, but someone’s conduct crosses into dangerous driving, is knowing you have bald tyres, but you were speeding, and it was raining, when you had an accident.

Grievous bodily harm is bodily injury of a ‘really serious kind’. This includes any permanent or serious disfiguring of the person, broken bones, damage to in internal organs or the destruction of the foetus of a pregnant woman.

A person convicted of an offence under this subsection is liable to imprisonment for 7 years. If there are aggravating circumstances the maximum period of imprisonment increases to 11 years.

Automatic disqualification (First Offence) is 3 years. The court has the power to reduce this period to 12 months if the circumstances permit.

Automatic disqualification (Second offence) 5 years. The court has the power to reduce this period to 2 years if the circumstances permit.

Dangerous driving occasioning grievous bodily harm is a Table 1 offence. This means that you will appear in the Local Court, but the Director of Public Prosecutions or you (the accused) can elect to have the matter heard before the District Court.  (In general terms, the local court cannot gaol someone for more than 2 years, whereas the district court can impose the maximum term of imprisonment under the Act, so having the matter moved to the district court can have serious consequences.)

To establish dangerous driving occasioning death, the prosecution must prove beyond a reasonable doubt and in addition to the above that; –

  1. A person died as a result.

A person convicted of an offence under this subsection is liable to imprisonment for 10 years. If there are aggravating circumstances the maximum period of imprisonment increases to 14 years.

Automatic disqualification (First Offence) is 3 years. The court has the power to reduce this period to 12 months if the circumstances permit.

Automatic disqualification (Second offence) is 5 years. The court has the power to reduce this period to 2 years if the circumstances permit.

Section 52A (5) of the Crimes Act 1900 sets out a number of ways an impact involving the death of, or grievous bodily harm to, a person can occur: –

  • The vehicle overturned, or left the road whilst conveying the deceased in or on that vehicle (whether or not he or she was a passenger or otherwise);
  • 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;
  • 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.

AGGRAVATING FACTORS

The Court will take into consideration any aggravating factors involved in your particular case with that in mind, may choose to increase the severity of your sentence. Some examples include: –

  • Extent and nature of the injuries inflicted;
  • Number of people put at risk;
  • Degree of speed;
  • Degree of intoxication or of substance abuse;
  • Erratic or aggressive driving;
  • Competitive driving or showing off;
  • Length of the journey during which others were exposed to risk;
  • Ignoring of warnings;
  • Escaping police pursuit;
  • Degree of sleep deprivation; and
  • Failing to stop

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