THE LAW

Dangerous driving occasioning death is a serious offence. Section 52A(1) of the Crimes Act 1900 states:

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:

  1. under the influence of intoxicating liquor or of a drug, or
  2. at a speed dangerous to another person or persons, or
  3. in a manner dangerous to another person or persons.

This means, to be guilty of this offence the prosecution must prove the following elements, beyond a reasonable doubt:

  1. The vehicle you are driving impacts another person(s);
  2. The impact results in the death of the person(s); and
  3. You were under the influence of alcohol or drugs, or you drove at a speed dangerous to other person(s), or the manner of your driving was dangerous to other person(s).

The first two elements are reasonably straight forward, however, the third element requires further explanation.

Under the influence of alcohol or drugs

The prosecution must prove that at the time of the offence the offender had a prescribed concentration of alcohol of 0.15 or more. This must be forensically tested within 2 hours of the event in question by way of obtaining a blood analysis.

Manner or speed dangerous

The manner or speed which an offender is deemed to be dangerous to other person(s) as opposed to the wider public. This focuses on the ‘potential danger’ rather than any realised danger.

Some examples include, travelling at excessive speeds, being affected by alcohol (under the 0.15 concentration as discussed above) which affects an offenders driving, driving in a manner dangerous in the conditions (i.e overtaking dangerously), or falling asleep/passing out whilst driving.

Lastly, there are certain factors that may deem the circumstances of the offending behaviour to be ‘aggravated’. These factors are embedded within Section52A(7) of the Crimes Act 1900, and include:

  • The offender having a prescribed concentration of 0.15 or more present at the time of the event;
  • The offender was travelling more than 45 kilometres per hour over the speed limit;
  • The offender was driving to escape pursuit by the police;
  • The offender’s ability to drive was substantially impaired.

PENALTIES

If convicted of this offence, an offender can be imprisoned for up to 10 years. In a matter where aggravating circumstances are determined, as discussed above, an offender may be imprisoned for up to 14 years.

Statistical evidence available to us, through the Judicial Commission of New South Wales, confirms that 89.7% of those convicted of this offence served full-time custodial sentence.

Furthermore, lengthy license disqualification periods are also mandatory and is an additional penalty imposed upon offenders, in accordance with to Section 205 of the Road Transport Act 2013. The automatic license disqualification period is 3 years.

In the  matter of R v. Veatufunga [2007] NSWCAA 54 the Court deemed it necessary to disqualify the offender from holding a license, however the disqualification period would not commence until the offender was released on parole.

This principal is now encapsulated in Section 206A of the Roads Transport Act 2013, which states that license disqualification periods are to be served following the offenders full-time custodial sentence (not including the offenders parole period).

DEFENCES AT LAW

Section 52A(8) of the Crimes Act 1900 provides for possible defences. It states:

It is a defence to any charge under this section if grievous bodily harm occasioned by the impact was not in any way attributable:

  1. to the fact that the person charged was under the influence of intoxicating liquor or of a drug or a combination of drugs;
  2. to the speed at which the vehicle was driven, or
  3. To the manner in which the vehicle was driven.

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