The Offence of Dangerous Driving in New South Wales

A 14-year old boy is faces a string of charges after the stolen car he was allegedly driving crashed into a light pole, killing his four teenage passengers.

The tragedy happened in the far north Queensland regional town of Townsville over the weekend, and Police say the car was on the wrong side of the road when it clipped a roundabout, rolled, and struck a light pole.

The 14-year old alleged driver was the only survivor, and is in hospital with non-life threatening injuries. He has been charged with a number of offences including dangerous operation of a motor vehicle causing death, two counts of unlawful use of a motor vehicle and burglary, as well as a count of possessing dangerous drugs.

The teen is due to appear in Townsville Children’s Court later this month.

Children’s Court

While there have been many calls for this age to be raised, in Australia, children can be held criminally responsible for their actions from the age of 10 years.

It is widely recognised in Australia and around the world that juveniles should have their own criminal justice system separate from adults that recognises the child’s inexperience and immaturity.

In fact, the United Nations sets out minimum standards for the administration of juvenile justice, which encourages all countries to establish:

“… a set of laws, rules and provisions specifically applicable to juvenile offenders and institutions and bodies entrusted with the functions of the administration of juvenile justice and designed to meet the varying needs of juvenile offenders, while protecting their basic rights.”

In Australia, this is the Children’s Court. These courts operate in each state and territory.

In New South Wales, Legal Aid is automatically given to young people appearing in the Children’s Court who have been charged with a criminal offence.

The legislation that governs the way these courts operate is the Children (Criminal Proceedings) Act 1987 (CCPA) and the Young Offenders Act 1997 (YOA).

Sentencing young people who break the law

In Queensland, similar legislation called the Youth Justice Act is in place. While there are a wide range of sentencing options available to the Children’s Court, for deemed serious offences, if a child is found guilty, Magistrates have the option of sentencing the offender to youth detention.

If the sentence is longer than a child would otherwise be permitted to stay in youth detention (until they turn 18), then they are transferred to an adult facility to serve the remaining term.

Youth detention has been under the spotlight in recent years, re-igniting the debate around how to deal with young people who engage in criminal behaviour.

When young people commit serious crimes, there are often calls from the community for tougher penalties. However, on the other side of that stance is the premise that locking kids up simply isn’t the answer, and that more investment needs to be made in preventative measures.

In fact, in its final report, in 2017, the Royal Commission into the Protection and Detention of Children in the Northern Territory rejected a ‘tough on crime’ approach to juvenile justice, making several recommendations for reform including a move towards prevention, diversion and rehabilitation, as well as the raising of the age of criminal responsibility.

Locking children up only tends to set them up for a life of ongoing crime, with years spent in and out of the justice system. And in Australia, Indigenous children are over-represented in the justice system.

The Australian Institute of Health and Welfare released its Youth Justice in Australia 2018-19 report last month. The research shows that while over the past  our financial years, the number of First Nations children being incarcerated or under supervision orders has stabilised Aboriginal and Torres Strait Islander youths continue to constitute around 50 percent of 10 to 17-year-olds held in youth detention centres or placed under court imposed supervision.

There is also growing body of research that shows strong links between child maltreatment (abuse and neglect) and various social problems affecting children and young people, such as homelessness, substance abuse and suicide, as well as being a precipitant for criminal behaviour.

The offence of dangerous driving

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 in any way 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.