Serious Traffic Offences in New South Wales

Serious traffic offences in New South Wales are known a major offence.

A major offence is defined under section 4 the Road Transport Act 2013 (the Act).

The Crimes Act 1900 and the Road Transport Act 2013 deal with serious traffic offences in NSW. A driver who commits three such offences in a five year period would once have automatically been designated an Habitual Traffic Offender but this was abolished in late 2017.

Serious Traffic Offences in NSW include:

  • Predatory driving;
  • Police pursuit;
  • Dangerous driving;
  • Failing to stop and assist;
  • Negligent driving causing death or grievous bodily harm;
  • Furious or reckless driving;
  • Menacing driving; and
  • Driving offences causing death or grievous bodily harm which are prosecuted under any other sections of the Crimes Act 1900.
  • Alcohol and drug driving offences

Predatory Driving

Predatory driving in NSW is when the driver of a vehicle pursues another vehicle in order to cause an impact between the two vehicles. The driver must intend to cause a person in the other vehicle physical harm.

The offence includes extremely aggressive driving such as tailgating and road rage.

Curiously, there is no specific offence for “road rage” in NSW however there is are still many offences available that might describe road rage behaviour. These are further discussed below in the article.

Predatory driving occurs even if it can be proved there is the threat of a collision between the two vehicles, but they do not actually collide.

This offence is classed as a serious indictable offence where the maximum penalty is five years’ imprisonment and or a fine of up to $100,000.

Police pursuits

This type of major traffic offence occurs when the driver of a vehicle knows, or ought reasonably to know, or has reasonable grounds to suspect that police officers are pursuing their vehicle and require the driver to pull over. The offence is committed when the driver does not stop or drives in the following way:

  • Recklessly;
  • At a speed dangerous to others; or
  • In a manner dangerous to others.

This offence is known as “Skye’s Law” and is the informal name for the Crimes Amendment (Police Pursuits) Act 2010. On 31 December 2009, 19-month-old, Sky Sassine was killed during a police pursuit when the family’s car was hit by the driver, William Ngati who was suspected of committing an armed robbery and who was trying to evade pursuing police. Ngati was convicted of manslaughter and sentenced to 14 years imprisonment.

However, Skye’s Law made the specific act of evading police a serious offence although there are still many other offences in the Crimes Act and Road Transport Act that could also fit particular driving and outcome depending on the circumstances.

The offence does not require any collision or harm to be caused to anyone. The offence is failing to stop when required to by police. The seriousness and level of aggravation will determine the penalty based on the circumstances of the police pursuit. Such as the speeds that were travelled, length of the pursuit, the conditions the pursuit occurred such as the level of traffic on the road at the time. The police will usually back up this offence with others such as driving in a manner dangerous, using a weapon (being the motor vehicle) to avoid apprehension to resist arrest etc.

The maximum penalty for a police pursuit is 3 years imprisonment for a first-time offence and imprisonment for up to five 5 years for any additional offences.

You will be disqualified from driving for an automatic period of 3 years or minimum 12 months for a first offence or 5 years disqualification and minimum 2 years for a second or subsequent offence within 5 years.

Dangerous Driving in New South Wales

Dangerous driving causing death

Dangerous driving causing death is when a person driving a vehicle is involved in an impact that caused the death of another person whilst the driver was either:

  • Under the influence of alcohol or drugs;
  • Driving at a dangerous speed; or
  • Driving in a dangerous manner.

A dangerous driving causing death charge is a serious offence which carries a maximum penalty of up to 10 years imprisonment. This matter is a strictly indictable offence and can only be dealt with by a Justice in the District Court.

Aggravated dangerous driving causing death

This serious traffic offence in NSW has similar elements to a charge of dangerous driving causing death but is committed in circumstances of aggravation. This is a strictly indictable offence and can only be dealt with in front of a Justice in the District Court.

Circumstances of aggravation include any of the following:

  • Being over the legal limit of alcohol;
  • Driving at 45km or more over the speed limit;
  • Being involved in a police pursuit; or
  • Being significantly affected by drugs.

The maximum penalty is 14 years’ imprisonment.

Dangerous Driving causing grievous bodily harm

Dangerous driving causing grievous bodily harm is when a person driving a vehicle is involved in an impact that caused grievous bodily harm to another person whilst the driver was either:

  • Under the influence of alcohol or drugs;
  • Driving at a dangerous speed; or
  • Driving in a dangerous manner.

Grievous bodily harm means a permanent and serious disfigurement such as a broken leg requiring pins and screws and leaves scarring.

Grievous bodily harm is essentially serious harm caused to another person, which includes an unborn child.

The maximum penalty for a charge of dangerous driving causing grievous bodily harm is seven years’ imprisonment.

Aggravated dangerous driving occasioning grievous bodily harm

This major traffic offence has the same elements as a charge of dangerous driving causing grievous bodily harm, but is committed in circumstances of aggravation.

Circumstances of aggravation includes any of the following:

  • Being over the legal limit of alcohol;
  • Driving at 45km or more over the speed limit;
  • Being involved in a police pursuit; or
  • Being significantly affected by drugs.

The penalty for this offence is higher than a charge of dangerous driving causing grievous bodily harm because of those aggravating features adding to the dangerousness of the driving which shows a disregard for community and public safety.

The maximum penalty for aggravated dangerous driving occasioning grievous bodily harm is 11 years imprisonment. This is a strictly indictable matter which can only be dealt with before a Justice in the District Court.

Defences

It is a defence to any dangerous driving charge in NSW if the driver can prove that the crash was not caused by or was in any way attributable to:

  • Being under the influence of alcohol or drugs.
  • Driving at a dangerous speed.
  • Driving in a dangerous manner.

Other defences include that the person was acting under duress of in circumstances of necessity.

In raising any defence of this nature, the onus shifts on the person charged to prove that these factors did not cause the crash.

Failing to stop and assist after a crash in New South Wales

Under section 146 of the Road Transport Act 2013 and section 52AB of the Crimes Act 1900, it is serious offence to fail to stop and assist after a car accident that caused injury or death to another person.

The prosecution must prove that the person knew or should know that the vehicle had been involved in such an impact, and that person failed to stop and give assistance and it was within that person’s power to give or render assistance.

Defences

  • The person was not the driver or rider at the time of the crash.
  • The person stopped and did everything within their knowledge and experience to assist the injured person.
  • The person could not reasonably have stopped due to the circumstances of the crash, for example it was dangerous to stop or exit their vehicle at the time.

The penalties for these offences differ between the Crimes Act 1900 and the Road Transport Act 2013.

Under the Crimes Act 1900 failure to stop and assist after a vehicle impact causing death attracts a maximum penalty of 10 years’ imprisonment. While a conviction of failing to stop and assist after an impact causing grievous bodily harm is seven years in prison.

Under the Road Transport Act 2013 the maximum penalty is a fine of up to 30 penalty units ($3,300) and or an 18 months imprisonment (first offence) and 50 penalty units ($5,500) or two years in prison for a second or subsequent offence.

Failing to stop and assist after vehicle impact causing death or grievous bodily harm

The offence of failing to stop and assist after a vehicle impact causing death or grievous bodily harm is committed when a person driving a vehicle is involved in an impact. The impact must have caused the death or grievous bodily harm of another person, and the person does not stop to assist.

To be guilty of this offence, the driver must know or should reasonably know that they have been involved in an impact that has caused the death or grievous bodily harm and despite this knowledge they still failed to stop and help.

Negligent driving

Section 117(1) of the The Road Transport Act 2013 deals with negligent driving. It prohibits driving a vehicle negligently on a road.

Additional penalties apply if the negligent driving causes death or grievous bodily harm: section 117(a) relates to death and 117(b) relates to grievous bodily harm.

The difference between negligent driving and dangerous driving is that a person can drive negligently without any other aggravating features such as being under the influence of alcohol or drugs or speeding or driving in a manner dangerous.

For example, a driver may be speaking or texting on a mobile phone which causes them to drive negligently. The law of Negligence under the Road Transport Act is a lower threshold of negligence than Dangerous Driving in the Crimes Act. Aspects which may constitute negligence under section 117 includes not driving to the conditions of the road, not keeping a proper lookout, momentary inattention and or being distracted.

A classic example of negligent driving is not stopping in enough time before hitting the rear bumper of the car in front or losing traction of the tyres and spinning out the rear end of the vehicle, for instance when the roads are wet.

More serious examples of negligent driving are reversing out of a driveway and hitting a pedestrian, going through red light and hitting another car or pedestrian, or colliding with a pedestrian on a pedestrian crossing.

However, is important to note that just because an accident occurs, does not automatically mean there must have been a negligent act. If a driver is driving normally and doing everything that is reasonably expected of them, and they still crash, then arguably there was no act of negligence. For example, if a driver is runs into a pedestrian who suddenly emerges from between parked cars or rushes on to the road without notice and are hit, then arguably there was no positive act of negligence on behalf of the driver proving they are guilty. The prosecution bears the full onus of demonstrating some positive act on behalf of the driver to prove guilt, if circumstances are out of the drivers control rendering the accident unavoidable, then there is arguably no proof of a negligent act.

Penalties for negligent driving range from a fine of up to 10 penalty units ($1,100) where neither death or grievous bodily harm was caused up to the following:

  • If a death occurred as a first offence, a fine of up to 30 penalty points ($3,300) and or imprisonment for up to 18 months.
  • Any second or subsequent offence where a death has occurred, a fine of up to 50 penalty points ($5,500) and or imprisonment for 2 years.
  • If grievous bodily harm was caused as a result of a first offence, a fine of up to 20 penalty points ($2,200) and or 9 months imprisonment.
  • Any second or subsequent offence where the negligent driving caused grievous bodily harm, a fine of up to 30 penalty units ($3,300) and imprisonment for 12 months.

Furious or reckless driving

Section 117(2) of the Road Transport Act 2013 deals with furious and reckless driving. It is an offence to drive a vehicle on a road:

  • Furiously;
  • Recklessly;
  • At a dangerous speed; or
  • In a dangerous manner.

Furious driving involves driving in a manner or speed which endangers the life of other road users. It does not matter whether in fact there were other road users on the road at the time.

Reckless driving involves driving in a manner that creates an obvious and serious risk of physical injury to other road users. Recklessness means that you knew what you were doing was dangerous but you decided nevertheless to go ahead with the conduct anyway. This can be proved by an objective assessment of the conduct itself, or through the prosecution demonstrating through your admissions that you knew the conduct was reckless but you proceeded in the act anyway.

The court must consider the following factors as to whether a person is guilty of furious or reckless driving:

  • The nature, use and condition of the road;
  • The amount of traffic present; and
  • Any hazards on the road.

Penalties for furious or reckless driving are dependent on whether this is a first time offence. The maximum penalties for this serious traffic offence include the following:

  • For a first offence, a fine of up to 20 penalty units ($2,200) and or 9 months imprisonment.
  • Any second or subsequent offence, a fine of up to 30 penalty units ($3,300) and or 12 months in imprisonment.
  • Automatic disqualification 3 years (first offence) and 5 years (second or subsequent offence).
  • Minimum disqualification 12 months (first offence) and 2 years (second or subsequent offence).
  • Maximum disqualification – Unlimited for both first and second or subsequent offence.

Menacing driving

Section 118 of the Road Transport Act 2013 involves the offence of Menacing driving.

A driver must not drive a vehicle on a road in a manner that menaces another person with the intention of menacing that other person. This offence does not have to occur on a public road.

Menace means to do an act that is likely to cause harm, a threat or danger.

Menacing may include swerving towards other vehicles to overtake them, going onto the other side of the road at high speed, driving through roundabouts at speed or anti-clockwise (wrong side the road), sticking your finger up at other motorists, mounting kerbs, tailgating, slamming on your brakes forcing other motorists to avoid a collision, passing too close and swerving toward a cyclists and or other road users.

The penalty will be determined by the intent to menace or such behaviour that had the possibility to menace.

The maximum penalties include the following:

  • For a charge of intent to menace:
    • First offence – 30 penalty units ($3,300) and or 18 months imprisonment;
    • Second or subsequent offence – 50 penalty units ($5,500) and or 2 years in prison;
  • For a charge of the possibility of menace:
    • First offence – 20 penalty units ($2,200) and or 12 months imprisonment; and
    • For an additional offence, a maximum fine of 30 penalty units ($3,300) and or 18 months in imprisonment.

Disqualifications

Automatic 3 years (first offence) and 5 years (second or subsequent offence)

Minimum 12 months (first) and 3 years (second or subsequent offence)

Maximum is Unlimited for both first and second or subsequent offence.

Defences

A person is not guilty of the person could not in the circumstances reasonably avoid menacing the other person or there is no intention to menace.

So even if it is accepted that a driver did engage in a menacing act, if intent cannot be proved then there is no offence.

In relation to the ‘possibility of menacing’ the prosecution must only prove in the circumstances the person ought to have known their conduct was such there was a possibility that the other person might be menaced.

Licence disqualifications

Licence disqualifications are dealt with in Part 7.4 Sanctions Concerning licence under Division 1 of the Road Transport Act 2013.

Sections 204 to 207A of the Road Transport Act deals with licence disqualifications.

Most important to note that a disqualification from driving means you no longer possess a licence. It is a court order, so if you are caught driving while disqualified, then the penalties are more severe because it is a direct breach the courts order. Judicial officers do not take too kindly to people that breach their orders.

Section 54 of the Road Transport Act 2013 provides the offence for driving while disqualified – the maximum penalty for a first offence is 30 penalty units ($3,300) and or 6 months imprisonment or 50 penalty units ($5,500) and or 12 months imprisonment for a second or subsequent offence.

What to do next?

Call Richard McDonald of McDonald Law on (02) 8824 4736 or 0411 460 034 or email richard directly at [email protected].

We will be able to assist you, provide you with honest feedback, and give you practical options to plan, prepare and resolve your case.

We can represent you at all levels of the court system in:

  • Licence offences
  • Speeding offences
  • Drink driving offences
  • Driving under the influence of drugs
  • Driving whilst disqualified or suspended
  • Negligent driving
  • Negligent driving causing death or grievous bodily harm
  • Driving in a Manner Dangerous
  • Menacing driving
  • Dangerous driving
  • Dangerous driving causing death or grievous bodily harm
  • Predatory Driving
  • Burnout Offences
  • Drag Racing and Racing Offences