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According to recent statistics from the ABS (Australian Bureau of Statistics), traffic related charges account for more than a third of defendants across the nation. Between 2021-22, the principal offence of approximately 35% or 168,722 defendants were facing either traffic or vehicle regulatory charges.
In terms of traffic and vehicle charges, the most serious accusations are culpable and dangerous driving, including dangerous driving causing death. Being charged with this type of offence can have far reaching consequences and implications.
This article will provide an in-depth breakdown of dangerous driving charges, what you need to know, when to seek legal advice and what your legal options are moving forward.
i. Types of Dangerous Driving Charges
iii. Dangerous Driving Causing Death
iv. Dangerous Driving Offences by State
vi. Non-Custodial Sentences and Licence Disqualification
vii. Sentencing Considerations for the Courts
Dangerous driving can encompass a wide range of different offences.
These may include:
Culpable driving offences are amongst the most serious criminal charges involving vehicle related incidents. The key distinction between culpable and dangerous driving is as follows; culpable driving refers to an act where a person drives a motor vehicle in a negligent or reckless manner while under the influence of drugs or alcohol, and causes the death of another person.
Culpable driving charges can also be laid when the actions of the driver cause the death of a passenger in the same vehicle (DPP v Egel {2022} VCC 645). Dangerous driving, on the other hand, can involve other circumstances that do not involve alcohol or drugs, such as a “lapse of judgement” (DPP v Egel [2022] VCC 645).
Facing a driving related charge and need to speak with a criminal lawyer in Melbourne? Reach out to Gallant Law today for an initial consultation.
In Australia, dangerous driving causing death offences differ from state to state, although in every state it is a “Strict Liability Offence (Jiminez v The Queen (1992) 173 CLR 572), meaning the prosecution does not have to prove the accused had an intention to drive dangerously or cause death of another person. NSW, Victoria and Queensland all have their own interpretations and laws for driving related offences. Here is a brief overview of the current laws:
NSW: Dangerous Driving Occasioning Death: Section 52A Crimes Act 1900 (NSW)
‘Basic’ offence: section 52A(1): 10 years’ imprisonment (maximum sentence)
‘Aggravated’ offence: section 52A(2) 14 years’ imprisonment (maximum sentence)
VIC: Dangerous Driving Causing Death or Serious Injury: Section 319 Crimes Act 1958 (Vic)
Causing Death: 10 years imprisonment maximum | Causing Serious Injury: 5 years maximum
NB: Culpable Driving Causing Death (alcohol/drugs) (s318 Crimes Act = 20 years maximum)
QLD: Dangerous Operation of Vehicle Causing Death or Grievous Bodily Harm: Section 328A Criminal Code 1899 (QLD)
10 years’ imprisonment maximum or 14 years’ imprisonment maximum if at the time of committing the offence, the driver is: adversely affected by an intoxicating substance or excessively speeding or taking part in an unlawful race/speed trial or if the offender knows/ought reasonably know, the other person has been killed or injured, and the offender leaves the scene of the incident (other than to get help)
Now, let’s take an in-depth look at all three states.
As outlined by section 64 of the Road Safety Act 1986 (Vic), the prosecution must be able to prove that the accused individual drove a motor vehicle at a speed or in a manner that is dangerous to the public with regard to all the circumstances of the case.
Dangerous Driving Causing Death or Serious Injury: Section 319 Crimes Act 1958 (Vic)
The Elements:
1. The accused was driving a motor vehicle (identity and definition of ‘driving’); and
“Drive” is an ordinary English word. Person must at least be in a position to control the movement and direction of the vehicle (Tink v Francis [1983] 2 VR 17).
2. The accused was driving dangerously (Objective test); and ’Dangerously’: did the accused’s manner of driving involve a serious breach of the proper management or control of a vehicle which created a real risk that members of the public in the vicinity would be killed or seriously injured?
“Manner of driving” includes speed, navigation and communication with other drivers. Covers all acts and omissions of a driver. A single dangerous act is sufficient. (R v Coventry (1938) 59 CLR 633; R v Burnside [1962] VR 96).
3. The accused’s dangerous driving caused the victim’s death (was the dangerous driving a substantial or significant cause of the victim’s death?).
Causation: consider condition of road, conduct of other driver, health of other driver (eg sudden heart attack).
For an offence in breach of section 64(2A), the prosecution must demonstrate:
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The Elements:
1. The vehicle was driven by the accused (note ‘driven’ and identity):The person was ‘in control of the steering, movement or propulsion of the vehicle’ (Road Transport Act 2013 s 4(1)).
2. The vehicle was involved in an impact. Broad definition. Includes impact between vehicle and any other object or person; or a vehicle overturning.
3. The impact caused the death of another person.
4. At the time of the impact the accused was driving the vehicle:
Under the influence of intoxicating liquor or of a drug, or
At a speed dangerous to another person or persons, or
In a manner dangerous to another person or persons.
NB: Whether or not the driving was ‘dangerous’ will depend on circumstances (eg weather, condition of road surface and obstructions). This is an objective test.
Eg: ‘A’ puts the car in neutral at the intersection instead of park and rolls into the intersection = dangerous.
‘A’ fails to give way due to signage positioned at level contrary to regulations = not dangerous
NSW: Aggravated Dangerous Driving Occasioning Death: Section 52A(2) Crimes Act 1900 (NSW)
The Elements:
In addition to the elements of the basic offence, one of the following circumstances of aggravation must also be present (s52A(7)):
1. The accused had a BAC level of 0.15g/100ml or higher; or
2. The accused was driving more than 45km/h over the speed limit; or
3. The accused was driving the vehicle to escape police pursuit; or
4. The accused’s ability to drive was very substantially impaired because the accused was under the influence of a drug (other than alcohol) or a combination of drugs (that can include alcohol).
QLD: Dangerous Operations of a Vehicle Causing Death or Grievous Bodily Harm: Section 328A Criminal Code 1899
The Elements:
1. The accused must operate or in any way interfere with, the operation of a vehicle dangerously
2. In any place and
3. Causes the death of or grievous bodily harm to another person
*’Operates, or in any way interferes with the operation of, a vehicle dangerously’ means at a speed or in a way that is dangerous to the public, having regard to all the circumstances, including—
(a) the nature, condition and use of the place; and
(b) the nature and condition of the vehicle; and
(c) the number of persons, vehicles or other objects that are, or might reasonably be expected to be, in the place; and
(d) the concentration of alcohol in the operator’s blood or breath; and
(e) the presence of any other substance in the operator’s body.
‘Operated’ is not defined in the Code. The accused being the driver is enough to constitute ‘operated’. If it is alleged that the defendant was not the driver, then the prosecution would have to plead that the defendant ‘dangerously interfered with the operation of a vehicle’.
‘Dangerously’ has its ordinary meaning, i.e. ‘fraught with or causing danger; involving risk; hazardous; unsafe’. When applied to driving, a manner or speed of driving which gives rise to a risk to others: King v The Queen (2012) 245 CLR 588.
The prosecution must prove that there was a situation which, viewed objectively, was dangerous; a risk over and above that ordinarily associated with the driving of a motor vehicle: R v Jiminez (1992) 173 CLR 572.
Place: road/hwy etc (other than racetrack for lawful racing purposes)
If you’re facing charges of dangerous driving in Victoria, it might feel like you’re lost in a labyrinth of legal terms and potential outcomes. However, with a solid defence strategy, you can potentially navigate your way towards a more favourable outcome.
Let’s explore some of these strategies and how they might be employed.
Identity (not the accused driving/wrongly identified)
The driving was not dangerous (per objective standard)/due care exercised
Causation (something else caused the death, eg, conduct of other driver, medical condition of other driver, condition of road, *unknown/not obvious mechanical fault)
Honest reasonable mistake as to condition of vehicle/defect in vehicle (NB: a motorist may believe they are driving carefully/vehicle is in good condition yet be guilty of operating a vehicle dangerously).
Mental impairment: note this is not a full defence and involves complex legal and medical considerations.
NSW: Intensive Corrections Order (ICO): available but rare; Depends on circumstances of case. Rely on:
R v Whyte (2002) 55 NSWLR 252 (guideline judgement): custodial sentence will usually be appropriate for dangerous driving causing death unless offender has low level moral culpability (eg momentary inattention or misjudgement). The guideline is a “check” or “indicator” only. The reference to a head sentence of three years is not prescriptive : R v Nguyen [2008] NSWCCA 113.
R v Pullen: ICO is a “custodial sentence” but does not involve immediate incarceration. Under the new scheme ICO still involves substantial punishment given the multiple mandatory obligations attached to the standard conditions. Can also argue ‘Special Circumstances’ to avoid immediate custody.
Automatic 3 years licence loss (can be reduced to 12 months minimum in cases as above).
VIC: Community Corrections Orders available: must establish substantial and compelling circumstances that are exceptional and rare (the assessment of moral culpability is relevant here). Per Division 2 of Part 3 of the Sentencing Act 1991 (Vic): see ss5(2H)(e),(2HC) and (2I)). Eg Director of Public Prosecutions v Duhan [2023] VCC 1901
Minimum 18 months licence disqualification/cancellation.
QLD: Partially and wholly suspended sentences available.Also note (ALL STATES): Criminal conviction: A criminal conviction is a certainty, and its impact on your travel, employment, mortgage borrowing/rental application/insurance prospects must be considered..
Each case has its own unique set of circumstances. However, the courts will generally consider the following:
1. Punishment
2. Specific and general deterrence
3. Protect the community
4. Promote the rehabilitation of the offender
5. Denounce the conduct of the offender,
6. Recognise harm to the victim and community.
There is no single, correct sentence. Case by case. Markarian v The Queen (2005) 79 AL
Most offenders are first time offenders, and are not ‘looking for trouble’ (unlike other crimes). Often, the incident comes down to momentary inattention (eg checking a mobile phone), inexperience (young driver), poor judgement (eg oversteering) panic or driving on an unfamiliar road (eg a country road). Doesn’t involve drugs/alcohol. The accused’s lives are also destroyed, as well as their families’ lives as living with the trauma of having killed someone is overwhelming and comes with lifelong consequences.
1. Engage with treatment for mental health at the outset (for your own sake and to show the court you are being proactive in rehabilitation and to pitch a case to continue rehabilitation via community disposition).
2. Proof of road trauma/road safety programs to address risk of reoffending/protection of community.
3. If alcohol/drugs involved: specialised counselling and regular drug/urine screens to show no longer using.
4. Forensic neurological/psychological/psychiatric assessment to address vulnerability in custody and other mitigatory factors/sentencing considerations.
5. Medical/hospital reports/records: e.g. any ABIs/neurological/physical injuries from the accident and surgery/treatment/prescribed meds? Physio/OT/OHS treatment records/reports as to therapy/prognosis.
6. Financial records (if you are the sole or primary breadwinner/have dependents you support financially).
7. Proof why your licence is needed
8. Character references
9. Volunteer work/community contributions/charity work/achievements/accomplishments?
10. CV/Stable employment history/employer reference.
11. Letter of apology to the victim’s family.
Now that we have outlined the various legislation and court considerations, let’s take a look into two separate case studies that took place in both New South Wales and Victoria respectively:
NSW: Truck driver (A) collides with other truck driver (V). V dies immediately on collision. A suffers brain injuries and is in coma for several weeks. He survives after surgery to his brain, back and legs.
Police evidence: A had briefly taken a phone call through bluetooth (i.e. lawfully), veered over centre line, side-swiped V’s truck. Not speeding. A has been a truck driver for over 10 years. No prior traffic offences. Good character. Wife pregnant with their first child. A is the sole breadwinner. They have just bought their first home. Huge mortgage. Prosecution relies on VIS. Tragic circumstances. Duty of care of truck drivers. No other contributing factors. Court accepted the offending behaviour while serious was below the midline of objective seriousness. There was no prolonged course of dangerous driving, there was no prolonged abandonment of responsibility.
In all the circumstances it could be characterised as momentary inattention with tragic results. ICO imposed because it still involved substantial punishment given the multiple mandatory obligations attached to it. Court also considered hardship to A’s family and dependants as highly exceptional given his brain injuries and other circumstances. 12 months licence disqualification.
VIC: Driver (A) collides with cyclist (V) who witnesses had described as “riding like an idiot” on a country road. A is not speeding and can’t explain what led up to colliding with V other than V “suddenly appeared” in A’s vision. Police believe A ended a phone call (lawfully) 1-2 metres prior to colliding with cyclist.
Upon collision A jumped out of his car and rushed to V’s aid. He called police himself and was cooperative with police. He was the primary carer of his wife and son who both have a severe neurological condition and need his assistance full-time. A has no traffic offence priors. Very good character. Known and loved in the local community.
Court accepted collision due to A’s momentary inattention and that in all the circumstances, there were substantial and compelling circumstances that were exceptional and rare together with assessment of his moral culpability (V contributed to collision) to warrant a Community Corrections Order of 3 years and minimum licence disqualification (18 months).
One of the most important factors influencing the outcome of a vehicle related incident is the distinction between careless driving and dangerous or culpable driving. While dangerous driving charges generally involve a serious incident, injury, or death, careless driving often involves minor traffic violations or driving in an unsafe manner.
As stated in the Road Safety Act, the definition of Careless Driving in Victoria is as follows: “A person who drives a motor vehicle on a highway carelessly is guilty of an offence and liable for a first offence to a penalty of not more than 12 penalty units and for a subsequent offence to a penalty of not more than 25 penalty units.”
While charges of careless driving often incur a penalty of a 6 or 12 month licence suspension, dangerous driving can lead to penalties of more than two years imprisonment.
A majority of vehicle related accidents will be considered as careless unless you were hit from the rear. These may include
It is important to note that a driver may still be found guilty of careless driving even if there was no accident.
Legal assistance is incredibly valuable and important to anyone facing the prospect of serious dangerous driving charges.
A lawyer provides invaluable advice, mitigates risk, and presents your case in the best possible light. They can also navigate the court proceedings with ease, significantly reducing the stress associated with the entire process.
Legal strategies cover both the prospect of pleading guilty and not guilty. Taking the approach of a guilty plea can be an effective way to reduce the severity of the penalty. If the matter proceeds to County Court, your criminal lawyer will develop and present a robust defence strategy to achieve the most favourable outcome.
Need to speak with a dangerous driving lawyer in Melbourne, Warrnambool, Geelong or across Victoria, contact the Gallant Law team today for expert legal advice.
Lauren Cassimatis is the Founder and Principal Lawyer of Gallant Law. Lauren is a Law Institute of Victoria Accredited Specialist in Criminal Law with over 20 years of experience. This experience encompasses a range of different federal, state, indictable, and summary offences, including dangerous driving and culpable driving.
Lauren’s compassionate, inclusive, and progressive approach informs the approach of the entire firm.
Led by Founder and Principal Lawyer Lauren Cassimatis, Gallant Law is a leading criminal law firm in Victoria. Our reputation is built on a track record of professional and proven legal services that are tailored to the specific needs of every client.
Our vision is to protect our clients’ interests beyond the courtroom, advocating for their rehabilitation, identity, relationships, careers and reputation. This involves a holistic, inclusive and progressive approach to customer service, where the delivery of legal services and facilitating equitable access to justice.
Regardless of the circumstances, we will provide compassionate legal advice and guidance during what we know can be a trying time. For a free consultation with a leading criminal lawyer in Melbourne, contact Gallant Law today.
Disclaimer: Legal Information and Advice
The information provided on this blog is for general informational purposes only and should not be construed as legal advice. The content is not intended to create, and receipt of it does not constitute, a solicitor-client relationship. Readers should not act upon this information without seeking professional legal counsel.
