By Zeb Holmes and Ugur Nedim
Driving charges are some of the most commonly heard matters in New South Wales Local Courts.
Whether it’s drink driving (DUI or P.C.A.), speeding or a case involving serious harm, tens of thousands of driving cases end up before magistrates in our state’s courts every year.
Dangerous driving is considered to be one of the most serious driving offences under the law.
While hundreds of traffic offences are contained in the Road Transport Act 2013, dangerous driving is one of only a handful contained in the NSW Crimes Act 1900.
Subsection 1 contains 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.
Subsection 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.
Subsection 3 contains the offence of ‘dangerous driving occasioning grievous bodily harm’, which comes with a maximum penalty of 7 years’ imprisonment, or 11 years if one or more circumstances of aggravation are present.
Strict liability and defences
Dangerous driving is a ‘strict liability’ offence, which means the prosecution is not required to prove that the driver intended to commit the act, or was reckless as to whether or not they might commit it. Rather, the prosecution only needs to establish that the conduct occurred.
However, there are a number of defences to the charge, including:
- Honest and reasonable mistake of fact,
- Automatism, including falling asleep behind the wheel (the Jiminez defence),
- Duress, and
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:
- 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
- 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.
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.
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.
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  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  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  NSWCCA 248.
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.
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 , “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.