Negligent Driving

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What is Negligent Driving ?

There are three main charges of negligent driving:

  • Negligent driving not occasioning death or GBH;
  • Negligent driving occasioning grievous bodily harm;
  • Negligent driving occasioning death.

The second and third above offences are both very serious charges that carry with them maximum penalties of imprisonment. These charges also carry with them lengthy loss of licence together with other penalties such as likelihood of a criminal conviction.

Case law

The nature and elements of the offence of Negligent Driving were considered in Director of Public Prosecutions (NSW) v Yeo and Anor [2008] NSWSC 953 wherein it was said the offence or test for Negligent driving essentially being established is;

….where it is proved beyond reasonable doubt that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances.

The Law

Section 117 of the Road Transport Act 2013 (NSW) provides that;

“a, ‘person must not drive a motor vehicle on a road negligently’.”

Negligent driving is defined as,

“driving without the standard of due care and attention reasonably expected of the ordinary prudent driver”.

Section 117 (3) of the Road Transport Act 2013 provides that the Court must have regard to all the circumstances of the case in considering whether or not your driving was negligent, including the following: –

  • Circumstances about the road – e.g. it’s condition;
  • The amount of traffic on or expected to have been on the road; and

Any obstructions or hazards on the road (such as broken down or crashed vehicles, fallen loads and accident and emergency vehicles).

What must the prosecution prove?

Since Negligent Driving offence is a criminal offence, the burden of proof lies on the Prosecution.

National Criminal Lawyers are the one of the best Traffic Lawyers Sydney has to offer and we always ensure the prosecution must prove each of the elements in the charge beyond reasonable doubt.

That is a high standard of proof that the prosecution must achieve before someone can be convicted of Negligent Driving.

To establish Negligent Driving, the prosecution must prove each of the following matters beyond reasonable doubt;

  • Negligence is generally defined as a failure to take proper care, therefore to be proven guilty of negligent driving the prosecution need to prove beyond a reasonable doubt that you failed to take proper care when you were driving your vehicle. If there is any reason to doubt that you were driving negligently, you must be found not guilty.
  • Police must also prove that you were driving the vehicle, and that it was being driven on a road or other related area.
  • For Negligent driving occasioning grievous bodily harm, the police must also prove GBH occurred because of the Negligence
  • For Negligent driving occasioning death police must also prove death occurred because of the negligence.

If you are charged with the offence of Negligent Driving what are your options?

National Criminal Lawyers have been successful in defending a number of Negligent Driving charges where the prosecution could not establish each of the elements of Negligent Driving. We have also achieved a number of non-convictions for Negligent Driving charges.

NCL offer the following options for those who have been charged with Negligent Driving;

  1. We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
  2. NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
  3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
  4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.

Pleading Guilty

If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.

Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.

Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work at increasing the chances of obtaining a non-conviction or section 10.

Maximum Penalties

Negligent driving not occasioning death or GBH is usually dealt with by way of infringement notice. The infringement notice carries with it three demerit points. It doesn’t have a mandatory period of disqualification, although the court can impose a 12-month disqualification period if believed to be appropriate.

Negligent driving occasioning grievous bodily harm carries a maximum of 9 months imprisonment for a first offence and up to 12 months for a second or subsequent offence. It also carries a fine of up to $2,200 for a first offence, and $3,300 for a second or subsequent offence. There is a minimum disqualification period of 12 months with this offence, which increases to two years for a second or subsequent offence.

Negligent driving occasioning death carries with it a maximum 18 months imprisonment for a first offence and two years for subsequent offences. The offence also carries a maximum fine of $3,300 for a first offence, rising to $5,500 for a second or subsequent offence. Upon conviction for negligent driving occasioning death there is also an automatic licence disqualification period of 3 years which in appropriate circumstances, the Court may reduce to the minimum period of 12 months.

Please note that the maximum penalties mentioned are reserved for the worse case offending.

Pleading Not Guilty

If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.

A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.

National Criminal Lawyers have defended thousands of people charged with Negligent Driving and are experts at these hearings.

Defences

Some of the possible defences available for those charged with Negligent Driving can include;

  • Put the police to proof regarding the allegation of the manner of driving being negligent. E.g. Highlighting to the Court that the police have failed to prove that the manner of driving was so objectively dangerous that it amounts to ‘negligence.
  • If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue “Duress”;
  • If your actions were necessary to prevent a greater harm from occurring, you may have the defence of “Necessity”.
  • Mitigating circumstances: external events that led up to or caused the incident;
  • Legal technicalities.; Or
  • Reasonable mistake of fact – This is an honest mistake of fact based on reasonable grounds which renders conduct innocent that would otherwise have legal consequences.

Statistics

The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green [2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:

“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law.

For Negligent Driving offenders

  • 77% of offenders of Negligent driving not occasioning death or GBH received a fine
  • 34% of offenders of Negligent driving occasioning grievous bodily harm received a s9 Good behaviour bond whereas 29% received a fine
  • 49% offenders of Negligent driving occasioning death received a s9 Good behaviour bond

For second or subsequent offence

  • 33% of offenders of Negligent driving occasioning grievous bodily harm received full time imprisonment whereas 33% received a fine
  • 100% offenders of Negligent driving occasioning death received an intensive corrections order (ICO)

Possible Penalty's

In NSW, a court can impose any of the following penalties for a Negligent Driving charge.

  • Prison sentence;
  • Home Detention;
  • Intensive correction order (previously periodic detention);
  • Suspended sentence;
  • Community service order (CSO);
  • Good behaviour bond;
  • Fine; and/or
  • Section 10.

However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

  • Full time Imprisonment;
  • New ICO (ICO) with a home detention condition available;
  • New Community Correction Order (CCO);
  • Fine and/or
  • New Conditional release Order (CRO)

Case Studies

Police withdrew proceedings for ‘negligent driving occasioning grievous bodily harm’ against our 21-year-old client from Parramatta after we made representations that the charge could not be sustained. The case involved our client, who was on his P Plates, allegedly failing to give way to another car at a roundabout and causing a collision, resulting in the driver sustaining a fractured leg and various other injuries. We argued successfully that the evidence suggested the other driver may have been travelling at excessive speed and thereby contributed to the collision. The charges were dropped, and our client kept his licence and remains conviction-free.

Why National Criminal Lawyers?

There are three reasons to choose National Criminal Lawyers:

1. We get the results

We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.

2. We give a Senior Defence Lawyer guarantee

No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.

3. National Criminal Lawyers are the best defenders of your rights

At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.

If you have been charged with any Negligent Driving offence our Team at National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.

Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.

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