Predatory Driving in New South Wales: Law, Defences and Penalties

A New South Wales man has been arrested and charged with several criminal and major traffic offences after allegedly ramming a police car while attempting to avoid arrest over suspicions of sexually touching another person without consent.

Police say they received information identifying a 31-year old Lake Macquarie man who allegedly sexually touched a 23-year old woman in the coastal suburb of Redhead, 16 kilometres south of the Newcastle CBD on Thursday, 19 October 2023.

According to police, they saw the 31-year old driving a vehicle on Flowers Drive in the coastal village of Catherine Hill Bay in the Lake Macquarie region at around 3.40pm the next day.

While the details provided by police are sketchy, they claim that after signaling for the man to pull over, he rammed into the police vehicle before exiting and attempting to carjack another vehicle.

The man was arrested and taken to Belmont Police Station, where he was charged with multiple offences including two counts of sexual touching and one count each of predatory driving, common assault, using a weapon to resist arrest and taking an occupied motor vehicle by assault, which is also known as the offence of carjacking.

A female police officer was injured in the incident and taken to hospital for treatment.

The offence of predatory driving in New South Wales 

Predatory driving is an offence under section 51A of the Crimes Act 1900 (NSW) which carries a maximum penalty of 5 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. The defendant was the driver of a vehicle,
2. The defendant was in pursuit of another vehicle, or was travelling near another vehicle,
3. The defendant’s conduct caused or threatened an impact with the other vehicle, and
4. The defendant intended to cause actual bodily harm to a person in the other vehicle.

The defendant must be found not guilty if the prosecution is unable to prove all of these ‘essential elements’ to the required standard.

Definitions that relate to the offence

For the purposes of the offence, a ‘vehicle’ is defined as any motor car, motor carriage, motor cycle, or any other vehicle propelled wholly or partly by volatile spirit, steam, gas, oil, electricity, or by any other means other than human or animal power, or a horse-drawn vehicle

An ‘impact’ is defined as colliding with any other vehicle, or with a person or object, or causing another vehicle to overturn or leave the road.

‘Actual bodily harm’ is that which is more than ‘transient or trifling’, and includes any lasting cuts or bruises.

The offence of using a weapon to avoid arrest in New South Wales

Using a weapon to resist arrest or hinder an investigation is an offence under section 33B of the Crimes Act 1900 which carries a maximum penalty of 12 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You possessed, used, threatened to use, or attempted to use an offensive weapon or instrument, or you threatened to injure a person or damage property, and
2. You intended by doing so to prevent or hinder a lawful arrest, or to hinder a police officer from investigating a suspected unlawful act.

Definitions that relate to the offence

For the purposes of the offence, and ‘offensive weapon or instrument’ is defined as a dangerous weapon, or anything made or adapted for offensive purposes, whether or not it is ordinarily used as a weapon or capable of causing harm.

A ‘dangerous weapon’ encompasses a firearm or imitation firearm, prohibited weapon or spear gun.

Schedule 1 of the Weapons Prohibited Act 1998 (NSW) contains a long list of items considered as offensive weapons, which includes but is certainly not limited to many knives, sling shots, dart projectors, incendiary devices, nunchakus, cross bows, maces, flails, whips, knuckle dusters, powerful lasers, extendable batons and a wide array of other items.

An ‘indictable offence’ is one capable of being referred to a higher court such as the District or Supreme Court.

These are usually offences with a maximum penalty of over 2 years in prison.

The offence of taking an occupied motor vehicle or vessel by assault in New South Wales

Taking a motor vehicle that is occupied by way of assault is commonly known as ‘carjacking’ and is an offence under section 154C(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 10 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that the defendant:

1. Assaulted another person with intent to take a motor vehicle or vessel,
2. Took and drove the motor vehicle or vessel, or took it with the intention of driving it, and
3. Did so without the consent of the owner or lawful occupier of the motor vehicle or vessel.

An ‘assault’ is where a person:

1. Made unauthorised physical contact with another person, or
2. Caused another person to apprehend immediate and unlawful violence, and
3. Did so intentionally or recklessly.

A ‘motor vehicle’ is any vehicle built to be propelled by a motor which forms part of the vehicle.

A ‘vessel’ is a water craft of any description used or capable of being used as a means of transportation on water.

The maximum penalty for the offence increases to 14 years in prison where it was committed in ‘circumstances of aggravation’, which is where the defendant:

1. Was in the company of another person or persons,
2. Was armed with an offensive weapon or instrument, or
3. Intentionally or recklessly inflicted actual bodily harm on any person.

‘Offensive weapon or instrument’ means:

1. A dangerous weapon, or
2. Anything made or adapted for offensive purposes, whether or not it is ordinarily used as a weapon or capable of causing harm.

A ‘dangerous weapon’ is:

1. A firearm or imitation firearm,
2. A prohibited weapon, or
3. A spear gun.

‘Actual bodily harm’ is that which is more than just ‘transient or trifling’. It includes lasting scratches, bruises and abrasions.

Legal defences

It is important to be aware that where a legal defence is raised on the evidence to any of the above charges, the onus then shifts to the prosecution to prove beyond reasonable doubt that the defence does not apply in the circumstances.

The defendant must be found not guilty if the prosecution is unable to do this.

Legal defences to carjacking and aggravated carjacking charges include duress, self-defence, necessity and ‘claim of right’, which is where a person genuinely believed he or she was legally entitled to the whole of the property.

Going to court?

If you have been accused of a criminal offence and are going to court, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free first appointment with an experienced defence lawyer who will advise you of your options, the available defences and fight to achieve the optimal result.

Our lawyers represent clients in all New South Wales courts.