Dangerous and Negligent driving cause death/GBH
Driving a motor vehicle requires a driver to maintain careful control over the vehicle at all times. Sometimes however, drivers abandon that responsibility whether through deliberate acts such as speeding, street racing, doing burnouts; or perhaps through momentary inattention or misjudgment.
The Court of Criminal Appeal has provided a Guideline Judgment for Dangerous Driving Cause Death and Dangerous Driving Cause Grievous Bodily Harm [ see R v Jurasic (1998) 45 NSWLR) 209 and R v Whyte (2002) 55 NSWLR 252], set out in the table below as likely penalties. The offences are found in Section 52A Crimes Act 1900 NSW.
Generally speaking, it would normally be the case that someone convicted of an offence under this section would receive a custodial sentence. The exception may occur in cases where the offence involved misjudgment or momentary inattention (such as adjusting the radio or lighting a cigarette, answering a mobile phone)
PENALTIES
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OFFENCE
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MAXIMUM PENALTY
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AGGRAVATED OFFENCE
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LIKELY PENALTIES
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Dangerous driving – GBH
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7 years gaol
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11 years gaol
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Not less than 2 years gaol |
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Dangerous driving
– Death
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10 years gaol
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14 years gaol
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Not less than 3 years gaol |
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Negligent Driving
– GBH |
1st offence – 9 months gaol and
$2,200 fine
2nd offence -12 months gaol and
$3,300 fine
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Negligent Driving
– Death
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1st offence – 18 months gaol and $3,300 fine
2nd offence – 2 years gaol and $5,500 fine
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The Dangerous Driving offences are aggravated by the following situations:
1. Blood alcohol over 0.150
2. Exceed speed limit by 45 km/h
3. Driving occurred to escape police pursuit
4. Substantially impaired by drug (prohibited or prescribed)
The offence of Negligent Driving is found in Section 42 Road Transport (Safety and Traffic Management) Act and outlines penalties for the bare offence of negligent driving, as well as in circumstances where GBH or death occur.
Potential Defences:
Defences of duress, or necessity may apply in negligent driving cases. For both types of offences, there may be a challenge as to whether the injury amounts to grievous bodily harm
In relation to Dangerous Driving Cause Death/GBH, there are statutory defences set out in Section 52A(8) Crimes Act 1900 NSW, as follows:
It is a defence to any charge under this section if the death or grievous bodily harm occasioned by the impact was not in any way attributable:
(a) to the fact that the person charged was under the influence of intoxicating liquor or of a drug or a combination of drugs, or
(b) to the speed at which the vehicle was driver, or
(c) to the manner in which the vehicle was driven
What To Do If Charged With Either Offence?
Contact Nyman Gibson Miralis for a free conference. As indicated in the table above, the penalties can be significant. You should seek the advice of our accredited criminal law specialist or a specialist criminal defence lawyer who have experience in dealing with these types of allegations. We will advise you as to whether the appropriate charge has been laid and whether the legal protocols have been carried out by the prosecution. For example, you may be charged with Dangerous Driving causing death or GBH, but factually the charge of Negligent Driving may be more appropriate, and the penalties substantially less.
In some circumstances, you may have a defence available. We will also advise you of any defences that may be available; the likely costs involved and the time frame until completion.