The offence of dangerous driving occasioning death is found within section 52A of the Crimes Act 1900 (NSW). The offence is separated into a ‘basic’ and an ‘aggravated’ version of the offence. The basic offence under section 54A(1) is punishable by a maximum of ten years’ imprisonment. The aggravated offence under section 54A(2) is punishable by a maximum of fourteen years’ imprisonment.
To be found guilty of this offence, the Prosecution needs to prove that the accused person was driving a vehicle when it was involved in an impact and caused the death of another person. The Prosecution also needs to prove one of the following: that the accused person was under the influence of alcohol/drugs or speeding or driving dangerously.
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In certain circumstances, the offence will be aggravated. For example, if the accused person was highly intoxicated, substantially impaired by the influence of a drug, greatly exceeding the speed limit or trying to escape police. If the offence is aggravated, the maximum penalty of imprisonment is fourteen years.
However, there are several defences that apply to this offence, including an “honest and reasonable mistake”.
What the prosecution must prove
This offence is a strict liability offence (Jiminez v The Queen (1992) 173 CLR 572). This means that the prosecution does not have to prove that the accused had an intention to drive dangerously or cause the death of another person.
For the basic offence of dangerous driving occasioning death, the Prosecution must prove the following elements:
- The vehicle was driven by the accused.
A person is considered to be ‘driving’ if he or she is ‘in control of the steering, movement or propulsion of a vehicle’ (Road Transport Act 2013 s 4(1)). This does not require a person to have control of the wheel and includes any mode of stopping or starting the vehicle, such as releasing the brakes (R v Affleck (1992) 65 A Crim R 96, 98).
- The vehicle was involved in an impact.
An ‘impact’ is defined broadly in the legislation and can include the following situations: an impact between the vehicle and any other object or person, the vehicle overturning, and a person impacting with an object or the ground whilst in or on the vehicle. It also includes a situation in which the vehicle driven by the accused causes another vehicle to be involved in an impact.
- The impact caused the death of another person.
- The accused was, at the time of the impact, driving the vehicle:
- Under the influence of intoxicating liquor or of a drug, or
- At a speed dangerous to another person or persons, or
- In a manner dangerous to another person or persons.
An accused is presumed to be under the influence of alcohol if his or her blood alcohol concentration is 0.15g/100ml or higher, when measured at any time within two hours after the impact, unless the accused can prove otherwise (Crimes Act 1900 s 52AA). In all other cases, a person is considered to be under the influence of alcohol or drugs if his or her ability to manage and control a motor vehicle is impaired by the voluntary intake or alcohol or drugs. This does not require an accused person to be drunk.
Whether or not a particular manner of driving is ‘dangerous’ will depend upon circumstances such as the time of day, weather conditions, nature of the road surface and the general surroundings. This is an objective test that does not take into account any personal characteristics of the accused or their belief at the time of the impact. To establish the offence of ‘dangerous driving’, the driver must ‘so seriously’ fail to properly control and manage the vehicle, such that it creates a ‘real danger’ of harm to other persons, ‘far exceeding’ that which arises from the normal use of a motor vehicle (Criminal Trial Courts Bench Book).
It does not matter whether the accused was controlling the vehicle at the exact time of impact. If the vehicle was driven in a dangerous manner immediately preceding the impact, this may be enough to establish this element (Williams v The Queen (2012) 229 A Crim R 67). This will depend on the circumstances of the particular case.
To be found guilty of aggravated dangerous driving occasioning death, in addition to the elements of the basic offence specified above, one of the following circumstances of aggravation must also be present:
- The accused had a BAC level of 0.15g/100ml or higher; or
- The accused was driving more than 45km/h over the speed limit; or
- The accused was driving the vehicle to escape police pursuit; or
- The accused’s ability to drive was very substantially impaired because the accused was under the influence of a drug (other than alcohol) or a combination of drugs (that can include alcohol).
Section 52A(8) of the Crimes Act specifically provides that it is a defence to this charge if the death caused by the impact was not attributable to any of the following (where relevant to the facts of the case):
- The fact that the accused was under the influence of alcohol or drugs; or
- The speed at which the vehicle was driven; or
- The manner in which the vehicle was driven.
For all strict liability offences, including this one, it is also a defence if the accused made ‘an honest and reasonable mistake of fact’ in deciding whether it was safe to drive. An example is where the vehicle has a mechanical defect that the accused is not aware of and should not reasonably be aware of. This defence will only be arguable in a limited number of circumstances.
Other defences that may apply to this offence include duress, necessity, mental illness or substantial impairment by abnormality of mind. For more information, see our defences page.
Will I go to jail?
Upon conviction for this offence, an offender can be imprisoned for up to ten years for the basic offence or fourteen years for the aggravated offence. However, that does not mean that the court must impose a sentence of imprisonment in all cases. Other sentencing options, such as an Intensive Corrections Order, are still available for serious offences such as this, but are only very rarely exercised. Whether or not such options are applicable will depend on the circumstances of the case.
For the full range of penalties that can be imposed for this offence, see our Sentencing Options page.