Published by Geoff Harrison | 17 January 2024
Other Sources:
Judicial Commission of NSW Special Bulletin 28: King v The Queen [2012] HCA 24
Public Defenders: Sentencing Table: Dangerous Driving Causing GBH (s52A(3)
Public Defenders: Sentencing Table Dangerous Driving Causing Death (s52A(1))
Public Defenders: Sentencing Table: Agg. Dangerous Driving Causing Death (s52A(2))
Cases:
Swan v R [2016] NSWCCA 79 (Re Grievous Bodily Harm at [54])
Extracted Legislation:
ROAD TRANSPORT ACT 2013 - SECT 117
Negligent, furious or reckless driving
(cf STM Act, s 42)
(1) A person must not drive a motor vehicle on a road negligently.
Maximum penalty--
(a) if the driving occasions death--30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence), or
(b) if the driving occasions grievous bodily harm--20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence), or
(c) if the driving does not occasion death or grievous bodily harm--10 penalty units.
(2) A person must not drive a motor vehicle on a road furiously, recklessly or at a speed or in a manner dangerous to the public.
Maximum penalty--20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence).
(3) In considering whether an offence has been committed under this section, the court is to have regard to all the circumstances of the case, including the following--
(a) the nature, condition and use of the road on which the offence is alleged to have been committed,
(b) the amount of traffic that actually is at the time, or which might reasonably be expected to be, on the road,
(c) any obstructions or hazards on the road (including, for example, broken down or crashed vehicles, fallen loads and accident or emergency scenes).
(4) In this section--
"grievous bodily harm" includes any permanent or serious disfigurement.
CRIMES ACT 1900 - SECT 52A
Dangerous driving: substantive matters
(1) Dangerous driving occasioning death A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle--
(a) under the influence of intoxicating liquor or of a drug, or
(b) at a speed dangerous to another person or persons, or
(c) in a manner dangerous to another person or persons.
A person convicted of an offence under this subsection is liable to imprisonment for 10 years.
(2) Aggravated dangerous driving occasioning death A person is guilty of the offence of aggravated dangerous driving occasioning death if the person commits the offence of dangerous driving occasioning death in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years.
(3) Dangerous driving occasioning grievous bodily harm A person is guilty of the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle--
(a) under the influence of intoxicating liquor or of a drug, or
(b) at a speed dangerous to another person or persons, or
(c) in a manner dangerous to another person or persons.
A person convicted of an offence under this subsection is liable to imprisonment for 7 years.
(4) Aggravated dangerous driving occasioning grievous bodily harm A person is guilty of the offence of aggravated dangerous driving occasioning grievous bodily harm if the person commits the offence of dangerous driving occasioning grievous bodily harm in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 11 years.
(5) When vehicle is involved in impact--generally For the purposes of this section, the circumstances in which a vehicle is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following--
(a) the vehicle overturning or leaving a road while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise),
(b) an impact between any object and the vehicle while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise),
(c) an impact between the person and the vehicle,
(d) the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact,
(e) an impact with anything on, or attached to, the vehicle,
(f) an impact with anything that is in motion through falling from the vehicle,
(g) the person falling from the vehicle, or being thrown or ejected from the vehicle, while being conveyed in or on the vehicle (whether as a passenger or otherwise),
(h) an impact between any object (including the ground) and the person, as a consequence of the person (or any part of the person) being or protruding outside the vehicle, while the person is being conveyed in or on the vehicle (whether as a passenger or otherwise).
(6) When vehicle is involved in causing other impacts For the purposes of this section, a vehicle is also involved in an impact occasioning the death of, or grievous bodily harm to, a person if--
(a) the death or harm is occasioned through the vehicle causing an impact between other vehicles or between another vehicle and any object or person or causing another vehicle to overturn or leave a road, and
(b) the prosecution proves that the vehicle caused the impact.
(7) Circumstances of aggravation In this section,
"circumstances of aggravation" means any circumstances at the time of the impact occasioning death or grievous bodily harm in which--
(a) the prescribed concentration of alcohol was present in the accused's breath or blood, or
(b) the accused was driving the vehicle concerned on a road at a speed that exceeded, by more than 45 kilometres per hour, the speed limit (if any) applicable to that length of road, or
(c) the accused was driving the vehicle to escape pursuit by a police officer, or
(d) the accused's ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination).
(8) Defences 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 (as relevant)--
(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 driven, or
(c) to the manner in which the vehicle was driven.
(9) Definitions In this section--
"drug" has the same meaning as it has in the Road Transport Act 2013 .
"object" includes an animal, building, structure, earthwork, embankment, gutter, stormwater channel, drain, bridge, culvert, median strip, post or tree.
"prescribed concentration of alcohol" means a concentration of 0.15 grammes or more of alcohol in 210 litres of breath or 100 millilitres of blood.
"road" means--
(a) a road or road related area within the meaning of section 4 (1) of the Road Transport Act 2013 (other than a road or road related area that is the subject of a declaration made under section 18 (1) (b) of that Act relating to all of the provisions of that Act), or
(b) any other place.
"vehicle" means--
(a) any motor car, motor carriage, motor cycle or other vehicle propelled wholly or partly by volatile spirit, steam, gas, oil, electricity, or by any other means other than human or animal power, or
(b) a horse-drawn vehicle,
whether or not it is adapted for road use, but does not mean a vehicle used on a railway or tramway.
CRIMES ACT 1900 - SECT 52AA
Dangerous driving: procedural matters
(1) Presumption as to intoxication For the purposes of section 52A, the accused is conclusively presumed to be under the influence of liquor if the prosecution proves that the prescribed concentration of alcohol was present in the accused's breath or blood at the time of the impact occasioning death or grievous bodily harm.
(2) Evidence of intoxication--alcohol For the purposes of section 52A, evidence may be given of the concentration of alcohol present in the accused's blood at the time of the impact occasioning death or grievous bodily harm as determined by a blood analysis carried out in accordance with Part 4 of Schedule 3 to the Road Transport Act 2013.
(3) Time of intoxication A concentration of alcohol determined by the means referred to in subsection (2) is taken to be the concentration of alcohol in the accused's blood at the time of the impact occasioning death or grievous bodily harm--
(a) if the blood sample that was analysed was taken within 2 hours after the impact, and
(b) unless the accused proves that the concentration of alcohol in the accused's blood at the time of the impact was less than the prescribed concentration of alcohol.
(3A) Evidence of intoxication--drugs For the purposes of section 52A, evidence may be given of the concentration of a drug (other than alcohol) present in the accused's blood or urine at the time of the impact occasioning death or grievous bodily harm as determined by a blood or urine analysis carried out in accordance with Part 4 of Schedule 3 to the Road Transport Act 2013.
(3B) Time of intoxication A concentration of a drug (other than alcohol) determined by the means referred to in subsection (3A) is taken to be the concentration of the drug in the accused's blood or urine at the time of the impact occasioning death or grievous bodily harm--
(a) if the blood or urine sample that was analysed was taken within 4 hours after the impact, and
(b) unless the accused proves that there was no such drug in the accused's blood or urine at the time of the impact.
(4) Alternative verdicts If on the trial of a person who is indicted for murder or manslaughter or for an offence under section 53 or 54 the jury is satisfied that the person is guilty of an offence under section 52A, it may find the accused guilty of the offence under section 52A, and the accused is liable to punishment accordingly.
(5) Question of aggravation If on the trial of a person for an offence under section 52A (2) or (4) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 52A (1) or (3), it may find that the accused is guilty of the offence under section 52A (1) or (3), and the accused is liable to punishment accordingly.
(6) Double jeopardy This section does not take away the liability of any person to be prosecuted for or found guilty of murder, manslaughter or any other offence or affect the punishment that may be imposed for any such offence. However, a person who--
(a) has been convicted or acquitted of an offence under section 52A cannot be prosecuted for murder or manslaughter or for any other offence under this Act on the same, or substantially the same, facts, or
(b) has been convicted or acquitted of murder or manslaughter or of any other offence under this Act cannot be prosecuted for an offence under section 52A on the same, or substantially the same, facts.
(7) Definitions In this section--
"prescribed concentration of alcohol" means a concentration of 0.15 grammes or more of alcohol in 210 litres of breath or 100 millilitres of blood.
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