The Law, Defences and Penalties for Dangerous Driving in New South Wales

The driver of a utility is facing criminal charges after allegedly running a red light and killing a motorcyclist.

Emergency services were called to the intersection of Windsor and Schofields Road, Rouse Hill, just after 5.45pm on Thursday, 18 June 2020 to find the 28-year old motorcyclist from Bligh Park critically injured.

Despite their efforts, the young man died at the scene.

The driver of the ute was taken to Westmead Hospital for mandatory testing, where he was charged with dangerous driving occasioning death and the back-up charge of negligent driving occasioning death.

As running a red light does not, by itself, amount to ‘dangerous driving’, it is unclear what police will be relying on to establish the offence.

‘Failing to keep a proper lookout’ by running a red light would normally amount to ‘negligence’ under the law.

The man is scheduled to appear in Blacktown Local Court to face the charges.

The offence of dangerous driving in NSW

Dangerous driving is an offence under section 52A of the Crimes Act 1900.

Section 51A(1) is the offence of ‘dangerous driving occasioning death’, which is where a driver is involved in an impact which causes the death of another person, and he or she was driving:

• under the influence of drugs or alcohol,
• at a dangerous speed, or
• in a dangerous manner.

The maximum penalty for the offence is 10 years’ imprisonment.

Section 51A(2) increases the maximum penalty to 14 years’ if any of the following ‘circumstances of aggravation’ are present:

• the driver had a high range p.c.a., ie 0.15 or over,
• the speed exceeded the limit by more than 45km/h,
• the driver was attempted to escape a police pursuit, or
• the driver was ‘very substantially impaired’ by a drug or drugs other than alcohol.

Section 51A(3) contains the offence of ‘dangerous driving occasioning grievous bodily harm’, which carries with a maximum penalty of 7 years’ imprisonment.

And section 51A(4) prescribes a maximum penalty of 11 years in prison where grievous bodily harm is occasioned and one or more of the above circumstances of aggravation is present.

Defences

There are a number of dangerous driving charges, including:

• Automatism, including falling asleep behind the wheel(the Jiminez defence),
• Duress, and
• Necessity

A further defence is contained in section 52A(8), which states that a person is not guilty if the death or grievous bodily harm was not attributable to:

• The driver being under the influence,
• The speed at which the vehicle was driven, or
• The manner in which the vehicle was driven.

Sentencing for dangerous driving

The guideline judgment in R v Whyte (2002) 55 NSWLR 252 is relevant to those who plead guilty or are found guilty of a dangerous driving offence.

The case lists a number of matters which may be relevant in assessing the objective seriousness of the offending conduct.

These are quite separate from subjective matters; which are the personal characteristics of the defendant such as age, driving and criminal history, remorse and so on. Those matters may be considered separately.

The relevant objective factors outlined in Whyte are:

1. extent and nature of the injuries inflicted
2. number of people put at risk
3. degree of speed
4. degree of intoxication or of substance abuse
5. erratic or aggressive driving
6. competitive driving or showing off
7. length of the journey during which others were exposed to risk
8. ignoring of warnings
9. escaping police pursuit
10. degree of sleep deprivation
11. failing to stop.

Factors 3 to 11 relate to the moral culpability of the driver. For example, it has been said that a simple lapse in judgment deserves less punishment than risk-taking behaviour where the driver actively “abandons responsibility” for his or her actions.

Specific Considerations

There are a number of cases, including Whyte, which provide some guidance on the weight to be afforded to various objective and subjective factors, and the appropriate penalties in different situations.

Momentary lapse

The Whyte guideline states that, “A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement,” adding that in such a case, there must always be room for a non-custodial sentence.

Where the driving behaviour amounts to little more than momentary inattention or a misjudgment, or involves carelessness rather than deliberateness, or involves no sustained pattern of driving that could be described as dangerous, a court may conclude that a non-custodial sentence is appropriate: R v Pyritz (1998) 29 MVR 90.

Extra-curial suffering

The driver’s relationship with the victim “may be some indication of extra-curial suffering flowing from the occurrence”: R v Howcher (2004) 146 A Crim R 371.

The case of Dhanhoa [2000] NSWCCA 257 provides that the effect of a death on the driver, and any self-punishment – including significant shame and guilt – are relevant to the sentencing process.

Relationship with deceased

In Hughes v R (2008), Grove J found that “leniency does not derive from the mere fact that the deceased was not a stranger, but from the consequential quality and depth of the remorse and shock”. In that case, the depression experienced by the driver was found to be a significant factor in mitigation,

In R v Dutton [2005] NSWCCA 248, it was relevant that the victim was the driver’s friend, and the driver had given her assistance and support after the incident.

Extent of Injury

The extent and nature of injuries inflicted is highly relevant in the sentencing process for cases of dangerous driving occasioning grievous bodily harm.

Where the injuries are extremely serious and/or permanent, the Court will place greater weight on the principles of retribution and general deterrence: R v Dutton [2005] NSWCCA 248.

Youth

An offender’s youth is generally considered to be a mitigating factor in the sentencing process for criminal cases. However, the weight placed upon this factor may be diminished in dangerous driving matters.

In R v Musumeci, Hunt CJ stated, “Such is the need for public deterrence in this type of case, the youth of any offender is given less weight as a subjective matter than in other types of cases.”

The statement was cited with approval by Spigelman CJ in R v Jurisic (1998) 45 NSWLR 209, and was said to be readily adaptable to the offence of negligent driving causing grievous bodily harm.

The courts will more readily send young people to prison for serious driving cases due to the prevalence of such offences amongst younger age brackets, and the need to deter other young people from engaging in such dangerous conduct: R v Slattery (1996) 90 A Crim R 519 at 523.

Good character

For similar reasons, Hunt CJ stated in R v Musumeci, “The courts must tread warily in showing leniency for good character in such cases.”

In R v Whyte (2002) 55 NSWLR 252, Spigelman CJ stated at [145], “Parliament has made it quite clear that the injuries occasioned by driving dangerously and, no doubt, the prevalence of the offence, require condign punishment.”

So there you have it. Dangerous driving charges are indeed treated very seriously by the courts – so much so that some mitigating factors have less significance than in many other types of cases.

That said, there are a number of defences to dangerous driving, which can result in the charge being withdrawn or thrown out of court, or downgraded to a less serious charge such as negligent driving.

Going to court for a traffic offence?

If you are going to court for a traffic offence, call or email Sydney Criminal Lawyers anytime to arrange a free first consultation with an experienced, specialist traffic lawyer who will accurately advise you of your options, the best way forward, and fight for the optimal outcome in your specific situation.