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The offences involving dangerous driving are contained in s 52A Crimes Act 1900. There are two basic offences depending upon the consequences of the driving: s 52A(1) where death is occasioned, and s 52A(3), where grievous bodily harm is occasioned. There are aggravated forms of each of the basic offences. The matters of aggravation are set out in s 52A(7).

There is a defence available to any of the offences provided in s 52A(8).

There is a structure of offences that deal with occasioning death resulting from driving. Manslaughter “stands at the very pinnacle of that structure as the most serious offence” (The case of R v Robert Borkowski [2009] NSWCCA 102).

Dangerous driving causing death

If you were driving intoxicated, at dangerous speed, or in a manner dangerous to the public and you caused you caused somebody to die, you will be guilty of this offence. Dangerous driving causing death s52A(1) of the Crimes Act 1900 (NSW) carries a maximum penalty of up to 10 years imprisonment.

To be guilty of this charge, the prosecution must prove, beyond reasonable doubt, all the following elements:

• Your vehicle was involved in an impact with another person;
• The impact resulted in death;
• You were under the influence of alcohol, drugs, or you drove at a speed or in a way that was dangerous to others.

For your driving to be ruled dangerous it has to cause a real or potential danger to the public.

The maximum available sentence is life imprisonment.

Dangerous driving causing GHB

Grievous bodily harm is a serious injury. It is an injury that has significant effects, or that permanently disfigures or disables. If the person suffered major cuts or broken bones, you may be at risk of being charged with the dangerous driving occasioning grievous bodily harm.

If the manner of your driving causes GBH, you are guilty of this offence and face up to seven years in prison or 11 years if the offence is aggravated.

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.

Section 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.

The offence of driving in a manner dangerous, does not just include speeding, but also driving in a way which causes a real or potential danger to the public.

In 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.

The maximum penalty is a fine of $2,200 and /or imprisonment for 9 months.

If the offence is a second or subsequent offence, the maximum penalties increase to a fine of $3,300 and / or imprisonment for 12 months.

If convicted, your licence is disqualified for 3 years (and 5 years for a second or subsequent offence). Upon conviction, the minimum disqualification the court can impose is 12 months.

This offence can be found in section 146 of the Road Transport Act 2013 (NSW) and section 52AB Crimes Act NSW. Speak to one of our senior traffic lawyers to make the best decision about your right and options if charged.

What the prosecution has to prove

Prosecution has to prove every one of the following five elements:

• You drove a vehicle on a road; and
• Your vehicle was involved in an “impact”; and
• The “impact” caused death or really serious injury to another person; and
• You knew, or should’ve known, that your vehicle was involved in an impact causing death or really serious injury; and
• You failed to stop and provide any necessary assistance within your power to give

Defences

You will be not guilty if:

• Your vehicle was not involved in the accident or impact;
• Your vehicle was involved in some manner but did not cause the incident;
• You stopped, tried to assist the victim to the extent safe and possible and waited at the scene until ambulance or police arrived;
• You suffered an injury that prevented you from assisting;
• You were not the driver of the vehicle responsible for the accident or impact;

Standard offences to criminal charges such as duress or necessity apply in that you were threatened to do what you did, or you did the act to avoid serious injury to yourself or another.

If you have a poor driving record and some of those driving offences are serious or what are termed “relevant offences” you may be declared a habitual offender and have your licence suspended for five years.

It is a brutal punishment that deprives you of a valuable resource when working, looking after your family, and trying to live effectively.

You will be declared a habitual offender and disqualified for five years if, in the preceding 5 years, you commit 3 relevant offences including but not limited to:

• Driving resulting in the death or grievous bodily harm to another person.
• Drink driving offence
• Presence of illicit drugs in your body while driving
• Attempt to use vehicle under influence of alcohol or drugs
• Predatory driving, police pursuit or failing to stop and assist vehicle impact causing death or grievous bodily harm
• Exceeding the speed more than 45km/h
• Negligent, furious or reckless driving, or driving at a speed or manner dangerous to public, menacing driving

Any offences that you been dealt with by way of section 10 non conviction are counted if they were relevant offences.

You can avoid and ‘quash’ this disqualification if, in the circumstances, the total of your disqualification is: disproportionate and unjust.

The Vehicle Sanctions Scheme introduced on 1 July 2012, allows police to apply roadside sanctions where the following offences are detected:

• Street racing
• Aggravated burnout
• Engaging in a police pursuit
• Speeding by more than 45km/h.
• Repeat high range drink drivers.

Where a driver commits one of the offences above and is the registered operator of the offending vehicle, police may confiscate the number plates at the roadside as an alternative to the long-standing practice of impounding the vehicle. Vehicle impoundment or plate confiscation is for a fixed three-month period.

The maximum penalties for a person who is convicted of vehicle or plate confiscation offences are as follows:

• A person convicted of an offence of operating a motor vehicle on a road during a plate confiscation period faces a maximum court imposed fine of $3,300 and vehicle forfeiture
• A person convicted of an offence or removing, tampering with or modifying a number plate confiscation notice faces a maximum court imposed fine of $3,300 and vehicle forfeiture

You are guilty of this offence if you drive in a way intended to menace another person. You are also guilty of this offence where you ought to have known your manner of driving would have menaced somebody (Road Transport Act 2013 section 118).

It does not matter if a person is actually menaced or whether that person was on a road at the time.

If you could not reasonably avoid menacing the other person it is a defence to his charge.

The Road Transport Act 2013 (NSW) section 117 Negligent, furious or reckless driving states:

• A person must not drive a motor vehicle on a road negligently. ...
• 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.

You have to exercise a reasonable level of care when driving the vehicle.

There are various applicable sentences with maximum penalties beginning at 18 months imprisonment and/or fines.

If your negligent driving has not caused death of grievous bodily harm the fine is 10 penalty units ($1100). Negligent driving is an offence under Section 117(1)(c) of the Road Transport Act 2013 which carries 3 demerit points and a fine or a maximum penalty of $1,100 if dealt with in court

Negligent driving occasioning death carries a maximum penalty of 18 months imprisonment for a first time offender under s117(1)(a) of the Road Transport Act 2013 (NSW).

For negligent driving causing grievous bodily harm in NSW, the maximum fine is $2,200 for the first offence and $3,300 for the second offence, and the maximum jail term is nine months and 12 months respectively. 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

Furious or reckless driving

You may be charged with furious driving if you drove in a manner that would have endangered any other road user or passenger, regardless of whether anyone was present on the road at the time.

An offence of reckless driving involves a person who knowingly drives in a manner that creates an obvious and serious risk to other road users.

Reckless driving encompasses a wide range of road behaviours, including:

• Running red lights.
• Not obeying road signage.
• Speeding.
• Driving an unsafe vehicle.
• Driving aggressively, such as tailgating and cutting in front of other cars.

A court will take into account the following elements:

• The nature, condition and use of the road on which the furious driving allegedly occurred.
• The amount of traffic at the time of the incident.
• Any obstructions or hazards on the road.

If nobody was hurt and you are charged with furious or reckless driving, you could be fined up to $2200 for a first offence. You may have your licence disqualified and you could face jail time if your have a poor driving record.

If you are caught speeding more than 30 or 45km/h over the speed limit it results in automatic suspensions by police and/or by the Roads and Maritime Services (RMS. You can appeal this to avoid a licence suspension and fine.

Speeding offences below the upper level described above attract demerit points and fines.

There are standard defences such as duress or necessity are available if you were forced to speed, or threats caused you to speed, or if did so to avoid serious harm.

The Road Rules 2014 set out offences in relation to fail to obey red and yellow traffic light signals. The penalties and demerit points that accrue upon a conviction are hefty. You can successfully defend the charges in the right circumstances.

You are Not Guilty if:

• You were not driving the vehicle;
• The red light camera detector was not calibrated within the required time
• Duress or necessity: Did you drive through red lights to avoid serious harm. Or did you do it under duress or threat.
• Your actions were involuntary due to a mental illness or condition you suffered at the time.
• Where you honestly believed you drove past yellow lights, and it was reasonable for you to have held that belief in the circumstances.