Dangerous Driving Causing Death is a serious criminal offence that provides for penalties of up to 10 years imprisonment: Section 52A(1) Crimes Act NSW. If the offence is committed in circumstances of aggravation the maximum penalty is 14 years imprisonment.
Circumstances of aggravation include the following situations:
1.Blood alcohol over 0.05
2.Exceed speed limit by 45 km/h
3.Driving occurred to escape police pursuit
4.Substantially impaired by drug (prohibited or prescribed)
If death does not occur as a result of the dangerous driving, but grievous bodily harm does, the offence of Dangerous Driving Causing Grievous Bodily Harm will be applicable. This offence also carries heavy penalties, including imprisonment of up to 7 years: Section 52A(3) Crimes Act NSW. Again, if the offence is committed in circumstances of aggravation (see above) the maximum penalty is higher.
What does the prosecution have to prove?
The prosecution must satisfy the court beyond reasonable doubt that:
1.death or grievous bodily harm was occasioned because
2.the vehicle being driven by the person was involved in an impact, for example where:
a.the vehicle overturned, left the road or hit another object while the person was a passenger in that vehicle
b.the vehicle hit the person or the vehicle in which the person was in, or
c.the vehicle caused an impact between other vehicles or caused another vehicle to overturn or leave the road (if also proven that the vehicle caused the impact)
3.and at the time of the impact the driver of the vehicle was either:
a.under the influence of alcohol
b.under the influence of drugs
c.at a speed dangerous, or
d.in a manner dangerous.
If the aggravated form of the offences is alleged the prosecution must also prove beyond reasonable doubt that the driver of the vehicle either:
a.had a blood alcohol concentration of over 0.150 upon breath analysis or blood analysis
b.was speeding by more than 45km per hour
c.was driving to escape pursuit by a police officer, or
d.was under the influence of drugs such that his or her ability to drive was substantially impaired.
If the offence is committed in such circumstances of aggravation the maximum penalty is higher.
Dangerous driving – the Guideline Judgment
Both dangerous driving offences are the subject of a Guideline Judgment – which means that the Court of Criminal Appeal has set a ‘likely outcome’ if convicted of either offence. For the offence causing death, the likely outcome is imprisonment for not less than 3 years. For the offence causing GBH, the likely outcome is not less than 2 years imprisonment [see R v Jurisic (1998) 45 NSWLR 209].
The Guideline Judgment sets out circumstances of the typical case – a set of factors common to most dangerous driving matters. We can advise you whether your factual circumstances fit within the ‘typical case’. If your matter is outside this, the Court will assess the moral culpability involved in the offence and impose penalty accordingly. The Court will look at the circumstances in which the offence occurred including the extent and nature of the injuries inflicted, number of people put at risk, degree of speed and degree of intoxication or substance abuse. The more factors such as these that are present, the higher the moral culpability and therefore the harsher the penalty.
We have successfully defended many cases where we were able to show on the balance of probabilities that there was no causal connection between either the manner of driving or the influence of alcohol or drugs, and the death or grievous bodily harm occasioned by the subsequent impact. There may also be a challenge as to whether the injury sustained by the victim amounts to grievous bodily harm.
If it can be shown that a mechanical defect in the vehicle caused a sudden loss of control and was in no way the driver’s fault, this may be raised as a defence. An example of this would be if a vehicle’s cruise control malfunctions during a journey on a freeway, causing a serious crash.
Dealing with these charges
Having an accredited specialist or a criminal law specialist on your team is a must if you have been charged with these offences. The penalties are severe and if you are convicted there is a real likelihood that you could be sentenced to a term of full-time gaol.
If you have been changed there are a number of ways we can assist you in the court process. We may be able to have your charge withdrawn or downgraded by the Police. For example, you may be charged with Dangerous Driving causing death or grievous bodily harm, but factually the charge of Negligent Driving may be more appropriate, and the penalties substantially less. You may have an available defence (see above), or you may wish to plead guilty – in which case one of our criminal defence lawyers will make submissions on your behalf on sentence.
Nyman Gibson Miralis provides expert advice and representation in all areas of drink driving and traffic law. Contact us if you require assistance.