In Victoria, ‘dangerous driving’ is a criminal offence prosecuted under the Road Safety Act 1986 (Vic). Dangerous driving is committed when a person drives a motor vehicle at a speed or in a manner that is dangerous to the public (s64).
There are also offences related to dangerous driving under the Crimes Act 1958 (Vic). These are indictable offences and address more serious conduct, such as those involving death or serious injury caused by dangerous driving (ss 319, 319AA). These offences are liable to severe maximum penalties.
Dangerous driving under the Road Safety Act 1986 is the most common charge people face in the Magistrates Court concerning dangerous driving offences.
Dangerous driving: Road Safety Act 1986, s64
Dangerous driving is the offence of driving a motor vehicle at a speed or in a manner that is dangerous to the public, having regard to all the circumstances of the case.
The penalty for dangerous driving is 240 penalty units or a term of imprisonment of up to two years, or both, if found guilty (s 64(2)).
If the offender holds a driver’s licence, they must be disqualified from obtaining a licence for up to 12 months.
If the vehicle was driven at an excessive speed of 45 km/hr or more, the offender must be disqualified for at least 6 months as the Court thinks fit (s 64(2)).
For this offence, the prosecution must prove that:
- the offence occurred at the place and time alleged;
- that the offender was the accused;
- the accused drove a motor vehicle; and
- at a speed or in a manner that was dangerous to the public.
Driving any other vehicle (that is not considered a motor vehicle) at a speed that is dangerous to the public, having regard to the surrounding circumstances, is also an offence under section 64(2A) of the Road Safety Act.
The penalty for this offence is 120 penalty units or a maximum term of 12 months imprisonment or both.
If the Court is not satisfied that an accused person is guilty of ‘Dangerous driving’ under these provisions, the Court may convict an accused of ‘careless driving’ under section 65(3) of the Road Safety Act 1986.
When is driving considered dangerous?
Driving is dangerous when it involves such a serious breach of proper control that it is potentially dangerous to others on the road or in its vicinity (King v The Queen).
The Courts consider many factors in determining when driving is dangerous. Whether driving is ‘dangerous’ is determined by an objective assessment of the circumstances surrounding the driving. The accused’s belief or intent regarding their driving is not material (R v Evans).
To be ‘dangerous’, the risk must be more than ordinarily associated with driving, including by people who may drive with less than due care and attention on occasion (King v The Queen).
Depending on the circumstances, considerations may include:
- the condition of the road
- the amount of traffic on the road
- the danger posed to other road users
- the nature of the driving.
The applicable speed limit may be relevant but is not determinative. A driver may be below the speed limit and drive dangerously (Mazza v Haime), or a driver could be above the speed limit and not be driving dangerously (R v De Montero)
Furthermore, the offender does not need to put other road users at risk at the time of offending conduct. The Court’s assessment of facts is general, and the danger is sufficient if it is potential rather than real (Kingman v Seager [1938] 1 KB 397).
Dangerous driving: Alternative offences
There is not just one charge applying to dangerous driving conduct. Under the Road Safety Act 1986 and the Crimes Act 1958, there are several alternative charges ranging in seriousness, including:
- Fail to have proper control of vehicle: Road Safety Road Rules 2017, r 297.
- Careless driving: Road Safety Act 1986, s 65.
- Causing serious injury intentionally: Crimes Act 1958, s 16.
- Causing serious injury recklessly: Crimes Act 1958, s 17.
- Causing serious injury negligently: Crimes Act 1958, s 22.
- Causing injury intentionally or recklessly: Crimes Act 1958, s 18.
- Conduct endangering life: Crimes Act 1958, s 22.
- Conduct endangering person: Crimes Act 1958, s 23.
- Negligently Causing Serious Injury: Crimes Act 1958, s24.
- Culpable driving causing death: Crimes Act 1958, s 318.
- Dangerous driving causing death or serious injury: Crimes Act 1958, s 319.
- Dangerous or negligent driving while pursued by police: Crimes Act 1958, s 319AA.
Dangerous driving causing death or serious injury
The offence of “dangerous driving causing death or serious injury” under section 319 of the Crimes Act creates a middle ground between the very serious charge of ‘culpable driving causing death’ and ‘dangerous driving’.
Dangerous driving causing death or serious injury is the offence of driving a motor vehicle at a speed or in a manner that is dangerous to the public, having regard to all the circumstances of the case, causing death or serious injury to another person.
Dangerous driving causing death is liable to level 5 imprisonment (10 years maximum) (s319(1)). Licence cancellation for at least 18 months is also mandatory under s 89(1) of the Sentencing Act 1991.
Dangerous driving causing serious injury is liable to level 6 imprisonment (5 years maximum) (s319(1A)).
To successfully prosecute these offences under section 319 of the Crimes Act, the following elements must be proved beyond reasonable doubt:
- The accused was driving a motor vehicle;
- The accused drove dangerously; an
- The dangerous driving caused the death or serious injury of another person.
For the third element, it must be proven that the dangerous driving caused the victim’s death or serious injury. It must have “contributed significantly” to the death or serious injury or have been a “substantial and operating cause” of a person’s death (Royall v R; R v Rudebeck).
Procedurally, the difference between dangerous driving causing death and dangerous driving causing serious injury is that ‘causing injury’ can be heard in the Magistrates Court. However, the offence will often be listed in the indictable stream (at the County Court) due to sentencing requirements and complexities.
Causing death
The driving does not need to be the sole cause of death, and a person may be criminally liable for a death arising from several causes even if they are not responsible for all of those causes (Royall v R; R v Lee).
However, if any potential causes of death are inconsistent with the dangerous driving, these factors must be eliminated beyond reasonable doubt by the prosecution to show a clear link between the driving and the death (R v Rudebeck).
An accident reconstruction expert is often necessary for these offences, and there are many ways a dangerous driving charge can be defended. It is not uncommon for police to lay these charges without sufficient grounds.
Causing serious injury
The definitions of injury and serious injury, including physical and harm to mental health, are defined in section 15 of the Crimes Act 1958.
Physical injury includes unconsciousness, disfigurement, substantial pain, infection with disease and impairment of bodily function.
Harm to mental health includes psychological harm but does not include transient emotional reactions, such as distress, grief, fear or anger, unless such emotions result in psychological harm.
An injury becomes a ‘serious injury’ if it endangers life or is substantial and protracted (including the cumulative effect of more than one injury). Serious injury may also include the destruction of the foetus of a pregnant woman, whether or not the woman suffers any other harm.
Culpable driving
Section 318(1) of the Crimes Act 1958 creates the indictable offence to cause the death of another person by culpable driving of a motor vehicle.
Culpable driving causing death is liable to level 3 imprisonment (a maximum of 20 years), or level 3 fine (that is, $240,000), or both.
To successfully prosecute culpable driving, the following elements must be proved beyond reasonable doubt:
- The defendant was driving a motor vehicle; and
- The driving was culpable; and
- The culpable driving caused the death of another person.
There are 4 forms of culpability set out in s318(2). An accused person drives a motor vehicle culpably if they drive:
- Recklessly: If they consciously and unjustifiably disregard a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from their driving
- Negligently: If they fail unjustifiably and to a gross degree to observe the standard of care that a reasonable person would have observed in all the circumstances of the case.
- Whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle.
- Whilst under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle.
Carrying a maximum term of imprisonment of 20 years, Culpable Driving Causing Death is a very serious charge. However, when determining an appropriate sentence, the Court takes many factors into account. For example, the presence of aggravating or mitigating factors for the offending will increase or decrease the term of imprisonment.
Under section 5B of the Sentencing Act 1991, the Court must also take into account the standard sentence for the offence of culpable driving, which is 8 years’ imprisonment. First offenders could expect 5 to 12 years imprisonment if found guilty in relation to the offence.
What to do if you have been charged
Dangerous driving and related offences in Victoria are subject to severe penalties, including licence suspension, fines and imprisonment.
If you have been charged with a dangerous driving offence, there are many factors relevant to the outcome of your case. Therefore, seeking legal advice as early as possible is critical for you to achieve the best outcome.
