What is dangerous driving?

A person is guilty of an offence under section 52A of the Crimes Act 1900 (NSW) where it is found they have been driving dangerously and have caused the death or very serious injury of another person or multiple people.

There are four separate offences under this section:

• Dangerous driving occasioning death
• Aggravated dangerous driving occasioning death
• Dangerous driving occasioning grievous bodily harm
• Aggravated dangerous driving occasioning grievous bodily harm

A charge of aggravated dangerous driving requires extra elements to be proved alongside the base offence.

These offences are some of the most serious driving offences that are prosecuted in New South Wales and can carry multi- year jail sentences. They also attach significant periods of licence disqualification.

Elements of the offence:

There are four elements that must be proved by the prosecution for a person to be found guilty of this offence:

1. A person drove a vehicle, and
2. The vehicle was involved in an impact,
3. That caused the death or grievous bodily harm of another person, and
4. The person was driving dangerously at the time.

1. Driving a vehicle:

“Drive” includes being in control of the steering, movement or propulsion of the vehicle. There is no requirement for a driver to being in control of all three at once (although, most of the time they will be). In one example, a person was found guilty of dangerous driving where they only had control over the break and accelerator (and someone else was steering).

Additionally, the driving must be voluntary – which can sometimes be an issue when a person falls asleep or suffers a medical episode whilst behind the wheel. In such cases, the court may find that a person was not really “driving” the vehicle.

A person can also commit a dangerous driving offence in various kinds of vehicles. There is no requirement for a motor, which means that any vehicle that is propelled by electricity, oil, animals or human power can qualify. Things like bicycles, carriages and electric scooters/skateboards are all capable of being driven dangerously for this offence.

• Involved in an impact:

Section 52A of the Crimes Act sets out all of the ways a vehicle can be involved in an impact to constitute the offence. Impacts may just involve the vehicle the person is driving (for example, the vehicle overturning) or it may involve collision with other inanimate objects, vehicles or people.

The impact that causes death or serious injury can also be the indirect fault of a dangerous driver. For example, a driver may hit a vehicle, forcing that other vehicle into an oncoming lane which then causes a fatal impact with other traffic.

• Causing death or grievous bodily harm:

There are generally no evidential issues with proving death, although there might be a question of causation where the person does not perish immediately or soon after the accident. The Court has also stated that dangerous drivers have caused the the later deaths of babies who were seriously injured in the womb or who have died due to premature birth after the mother was seriously injured whilst carrying them.

Proving grievous bodily harm can have more challenges as there are a wide range of injuries that can fall under this category. To qualify for grievous bodily harm, there must be “really serious bodily injury” but it does not necessarily have to permanent or long-lasting. Multiple broken bones or serious fractures, nerve damage, disfigurement and severe head injuries are examples that would likely fall within this definition.

• Driving dangerously:

While the above three elements are usually fairly simple to determine one way or the other, this final part often requires the most attention during a court matter. Section 52A of the Crimes Act specifies the different ways a person can be found to be driving dangerously:

Under the influence of alcohol or another drug:

If a person is found to have a blood alcohol content of 0.15 or above after a serious road accident, they are automatically presumed to be “under the influence” of alcohol and therefore driving dangerously. However, this does not mean that this level of intoxication is required to be considered driving dangerously for this offence. “Under the influence” covers a wider range of circumstances.

“Under the influence” is not specifically defined in the legislation, but it is clear that the term is not related to any specific numerical level or concentration of alcohol or another drug in a person’s body. It relates to a subjective observation by police or other witnesses that a person’s mental and physical state are negatively influenced by alcohol or another drug. This commonly involves evidence of a person’s speech, behaviour, appearance, smell or manner of driving.

This is considered “dangerous” because a person that is so noticeably influenced by alcohol and/or drugs does not have the required concentration and physical control to drive and has therefore seriously disregarded other people’s safety by choosing to get behind the wheel.

At a speed dangerous:

A person can also be driving dangerously if their speed is considered excessive in all of the circumstances.

This does not necessarily relate to exceeding the signposted speed limit. In some cases it has been found that while a person has exceeded the legal speed limit they were still not driving at a speed dangerous enough to warrant being guilty of dangerous driving. In other cases, people driving under the legal speed limit have been found to be driving at a dangerous speed considering the conditions they were actually driving in. In one example, there was a large group of cyclists on the road and a driver who was unable to safely pass did not slow down enough to avoid hitting them. They were found to be driving at a speed dangerous.

What is important is the actual circumstances of the situation. What is considered a “safe” speed will change depending on the condition of the road, visibility, how built-up traffic is, how many pedestrians are around, what kind of area a person is driving in (for example, a suburban street versus a highway) and the mental and physical condition of the driver themselves.

In a manner dangerous:

This is the most general of the categories of dangerous driving and encompasses a wide range of driver behaviour. Determining whether someone was driving “in a manner dangerous” is an objective test based on the expected standard of care drivers are meant to employ and the potential danger other people have been put in by their actions while driving.

Driving in a manner dangerous can be due to negligence on the part of a driver or due to deliberate recklessness or disregard for the rules of the road and the safety of others. Depending on the particular circumstances of a situation, even “momentary inattention” can amount to dangerous driving.

The “manner” of driving can relate to anything connected with the “management and control” of a vehicle. So, it can include more than just accelerating, breaking and steering – the Courts have held that things like using indicators, starting the car and using the horn can also be included in a person’s manner of driving.

A common issue that arises in dangerous driving cases is the role of fatigue in serious road incidents. It is possible for a driver who has fallen asleep at the wheel to be charged with dangerous driving, even though at the time they caused impact they are not awake and in control of the vehicle. The Court has stated that there are times when a driver is so fatigued that their decision to start driving or keep driving is dangerous in and of itself. This will be determined on an individual basis, and requires the Court to consider the particular circumstances of each driver and the specific conditions they were driving in.

Aggravated offences:

If a person is charged with an “aggravated” form of a dangerous driving offence, the prosecution must also make out at least one of the following elements:

• The driver had a blood alcohol content of 0.15 or above;
• The driver was exceeding the legal speed limit by more than 45 kilometres per hour;
• The driver was escaping police pursuit at the time;
• The driver was “very substantially impaired” by a drug or a combination of drugs.

If found guilty of an aggravated dangerous driving offence, a person will automatically be subject to a higher maximum term of imprisonment.

Defences available:

Causation:

It can be a defence to a dangerous driving charge to show that there is no connection between a person’s dangerous driving and the death or serious injury of another person or people.

A defendant has the burden of proof to show that the harm that occurred was not “in any way attributable” to the manner of driving, speed and/or state of intoxication. Essentially, they must show the death or injury would have occurred regardless of the way they were driving.

It is not enough to argue that the person or people who were harmed contributed in some way to the incident. The dangerous driving must have absolutely no material contribution to the impact.

In one example, the Court found no connection between the dangerous driving and the death of another person where a driver who was significantly intoxicated directly hit a dirt bike rider at night. The driver was turning into their driveway on a poorly lit road and the dirt bike rider was approaching up a blind hill without their headlights on. The court concluded that even a person who was completely sober would not have been able to react quickly enough to avoid the impact. So the driver’s dangerous state of intoxication did not cause the death.

Mechanical Defect:

A mechanical defect in a vehicle could possibly provide a defence to dangerous driving where it causes a sudden, unexpected loss of control that the driver cannot reasonably rectify. However, if a person knew about this mechanical defect, or should have known about the defect, they may still be found guilty of dangerous driving. This is because choosing to drive when something is seriously wrong with your vehicle represents a great failure to consider the safety of other drivers and pedestrians.

Once the possibility of a mechanical defect in the vehicle is raised on the facts, the prosecution has the burden to either prove there was no actual defect or that the defect does not excuse the dangerous driving.

Honest and Reasonable Mistake:

In certain dangerous driving cases, a defendant can argue they were honestly and reasonably mistaken about a certain circumstance. If that circumstance was true, their driving could not be considered dangerous.

This is most relevant in two certain situations: (1) when the dangerous driving involves being under the influence of alcohol or another drug; and (2) when the dangerous driving involves fatigue.

In the case of alcohol or drug intoxication – it may be possible to argue that someone was involuntarily intoxicated. This might occur through drink spiking or through consumption of medication that a person was unaware had intoxicating effects. In these circumstances, a person might have an honest and reasonable belief they were sober enough to drive. However, this does not mean that underestimation of the effect of alcohol or drugs on a person, or the excuse “I thought I was okay to drive” is enough to defend a charge. The Court has little patience for people who consume a significant amount of alcohol and decide to take the chance and drive anyway.

In incidents involving extreme fatigue or falling asleep behind the wheel, there are instances where a person can try and argue they honestly and reasonably believed that it was safe for them to drive. This is always a question for the individual person and case – often the lighting, length of the drive, time of day, amount of sleep and previous activities of the driver (for example, a physically exhausting week of work) are all relevant to whether a person should have known they were too fatigued to drive.

The Guideline Judgment:

Dangerous driving is the subject of an NSW Supreme Court guideline judgment. This means there is a detailed set of instructions that magistrates must follow when sentencing a person for a dangerous driving offence.

The Guideline sets out what an “ordinary case” of dangerous driving is and the usual penalties that should follow. The “ordinary case” includes:

• A relatively young offender.
• Who is of good character and has a minor traffic/ criminal record.
• Death or permanent injury has been caused to a single person.
• That person is a stranger.
• The driver has suffered no injury or limited injury.
• The offender shows genuine remorse and pleads guilty early in the process.

The Guideline Judgment states that in most cases, a full-time prison sentence is “usually appropriate”. However, it does allow that in cases where a person’s moral blameworthiness is quite low (for example, in cases of brief inattention or misjudgement) a penalty less than full time custody is allowable.

The Guideline Judgment also sets out a list of factors that can possibly “aggravate” an offence and increase the moral culpability of the offender:

1. The extent and nature of the injuries caused
2. The number of people that were put at risk by the driving
3. The degree of speed
4. The level of intoxication
5. Any erratic driving
6. Any competitive driving (or racing)
7. The length of the journey where others were in danger
8. Ignoring warnings
9. Driving to escape police pursuit
10. Being significantly sleep deprived
11. Failing to stop after the accident

If the court finds any of these factors present in a person’s offending behaviour, it will increase the objective seriousness of the dangerous driving and warrant a harsher penalty.

Penalties:

Section 52A of the Crimes Act sets out differing penalties based on whether the offence is aggravated and whether death or grievous bodily harm results. Dangerous driving that occasions death is known as a “strictly indictable offence” which means it will always be dealt with in the District Court.

Dangerous Driving Occasioning Grievous Bodily Harm is known as a “Table 1 Offence” which means it will be dealt with in the Local Court unless the prosecution or the defendant chooses to take it up to the District Court. This choice is usually made where the facts of the case are quite serious or where the matter is complex enough to be better suited to the trial procedure of the District Court. If the matter is left in the Local Court, the maximum term of imprisonment is much lower.

The Guideline Judgment sets out that in the usual case, where a person’s moral culpability is fairly high:

• For a charge of dangerous driving occasioning death, a sentence of less than 3 years full time custody will rarely be appropriate.
• For a charge of dangerous driving occasioning grievous bodily harm, a sentence of less than 2 years full time custody will rarely be appropriate.

If a person is charged with an aggravated form of this offence or the sentencing judge finds any of the aggravating factors mentioned in the Guideline Judgment – the term of imprisonment will likely be greater than these starting points.

The maximum penalties for each offence are:

Dangerous Driving is also considered a “major offence” in the Road Transport Act and is therefore subject to an automatic licence disqualification. The length of this disqualification will vary depending on whether a person has any other road-traffic related “major offences” on their record. This could be other charges of dangerous driving or things like drink or drug driving charges and negligent driving.

The automatic term of licence disqualification can be varied by the Court, but there is a set minimum amount of time a person found guilty of dangerous driving must be disqualified from holding a licence.

Additionally, if someone has been found guilty of dangerous driving due to being under the influence of alcohol, the court may also choose to impose an interlock order. This means that after a driver has served their period of licence disqualification, they will have to be subject to at least another 3 years under an interlock licence.

What is a community correction order?

A community correction order (or CCO, for short) is an alternative sentencing option that a court can choose to impose instead of a term of imprisonment. It is a community-based order that requires a period of “good behaviour” from the offender as well as submission to other relevant conditions. A supervision order or a community service work order are commonly attached to a CCO.

CCOs were introduced in 2018 as part of a major overhaul of NSW’s Local Court sentencing regime. Under the reforms CCOs were described as a more flexible order that provided a non-custodial alternative to full time imprisonment while still allowing for supervision and intervention into a person’s offending behaviour. A CCO is the strictest community-based order a person can be put under; the next step is some form of imprisonment.

Length of a CCO:

The maximum length of time someone can be under a CCO is 3 years. It will commence on the day the order is made and cannot be backdated.

Standard CCO conditions:

All CCOs come with the same two standard conditions:

• The offender must not commit any offence (or, the offender must be of “good behaviour”); and
• The offender must come before the court if they are asked to at any time during the period the CCO is active.

A person must comply with both of these conditions for the duration of the order or face the consequences of breaching a CCO.

Additional CCO conditions:

In addition to the two standard conditions, a person must also be subject to at least one additional condition as decided by the court. The other possible conditions a court can choose to impose include:

• A condition imposing a curfew – meaning a person must remain at a specified address within the hours specified by the court (but note, the curfew cannot be for more than 12 hours in any 24-hour period)
• A condition requiring a person to do a certain amount of community service work
• A condition requiring someone to undergo rehabilitation or a specific treatment program
• A condition that requires a person to refrain from consuming alcohol or a particular drug or both
• A condition that prohibits someone from associating with a particular person or group of people
• A condition that prohibits someone from visiting a particular place or area
• A condition that requires someone to submit to supervision by a community corrections officer (similar to parole supervision)
• The court can also impose further conditions as it sees fit for the particular situation (for example, an order to comply with an AVO or an order to pay someone compensation)

Supervision orders:

If a supervision order is attached to a CCO there are several more obligations an offender must fulfill. They are required to regularly report to a community corrections officer and comply with any “reasonable direction” the officer gives. These directions can include:

• Instructions to reside at a certain place
• Orders to participate in particular programs, treatments, interventions or activities
• Participation in certain employment, education or training programs
• Orders to cease drug/alcohol use
• Requirements to undergo drug and alcohol testing

It should be noted that all domestic violence offenders that are dealt with via CCO must also be under a supervision order.

Community service work:

If the court is considering imposing a community service work condition on an offender, they must send them for a sentencing assessment report to evaluate their suitability. The court cannot impose a community service work condition unless the assessment indicates that an offender will be suitable for community service and capable of carrying out the specified hours of work.

The maximum penalty associated with an offence will dictate the maximum number of hours of community service a court is allowed to order a person to complete:

If a person is subject to a community service work condition, there are many obligations they must comply with in order to ensure they do not breach the CCO. Obligations under a community service work condition can include:

• Signing an attendance register when at community service work sites
• Performing community service work in accordance with the reasonable directions of community corrections officers or supervisors
• Keeping any clothing or equipment issued for community service work in good condition
• Observing the standards of workplace health and safety that may be in place on a particular community service work site
• Not reporting to community service work while under the influence of alcohol or drugs
• Submitting to alcohol or drug testing if required

Revoking or varying CCO conditions:

While the two standard CCO conditions must be in place for the entire period of the CCO, any additional conditions may be imposed for a lesser duration or be revoked before the CCO ends.

An offender can make an application to the court to have additional condition/s revoked or varied if they have good reason as to why the particular condition is no longer appropriate. The court can refuse the application if they think it is without merit.

A community corrections officer can make a similar application to have conditions imposed, revoked or varied.

Breaching a CCO:

If the court suspects that a person has breached their CCO in any way, they can call the offender to appear before the court. If someone subject to a CCO has committed a further offence, the court will also check to see if they have breached any community order at the time of the offending.

If the court is satisfied that the offender has failed to comply with any of the conditions under the particular order, they can do one of three things:

• Decide to take no action
• Vary or revoke any conditions on the order or impose further conditions
• Revoke the order

Sometimes the breach to the CCO is accidental or very minor, which is why the court has the discretion to do nothing or make minor adjustments in response to the breach. Where the breach becomes more serious and intentional, it is unlikely the court will choose to ignore the matter.

The most serious consequence resulting from a breach is revocation of the CCO. Once a court revokes the order, they can re-sentence an offender for the original offence. This most often means the person will be subject to a harsher penalty then they were given the first time. In the case of a CCO this is a particular concern, as the next step up is a term of imprisonment.

If a person has breached the CCO by committing another offence, they can be sentenced for both the new offence and the original offence that related to the CCO. The court does not look kindly on failures to comply with court orders, and this is often reflected in the harshness of penalties they impose.

What is the offence of affray?

It is an offence under section 93C of the Crimes Act 1900 (NSW) to cause or take part in an affray.

The term “affray” refers to the use or threat of unlawful violent conduct in the presence of others. This conduct must be enough to cause a normal person to fear for their own personal safety. Typically, these offences occur in public but can also happen in private settings where there is a gathering of people. They generally involve more than one person and often occur because of a brawl or fight between different people.

A person charged with affray will not only be liable for their own actions but for the overall conduct which amounts to the offence. This means if a person individually did not contribute much to the violence, they might still be held liable for the more serious violent conduct of others if it is still part of the altercation or incident the affray concerns.

The offences of riot and affray are often grouped together and have very similar elements to prove. They both involve the use or threat of violence around other people and causing fear for personal safety in the minds of others. Riot has the added requirements of needing at least 12 people involved in the incident, as well as the element of a “common purpose” for the violence. An affray, on the other hand, can involve instances of spontaneous violence and only one person is technically required for the offence (although most often there is multiple people involved).

Because of the greater scale of violence caused in riot matters, the penalties for riot are more severe. However, if dealt with in the district court, an affray charge can still carry a penalty of up to a decade full-time imprisonment.

Elements of the offence:

There are three elements that must be proved by the prosecution for a person to be found guilty of this offence.

1. A person uses or threatens unlawful violence towards another; and
2. This conduct would cause “a person of reasonable firmness” to fear for their own personal safety; and
3. They intend to use or threaten violence OR are aware that their conduct may be violent or threatening.

1. Using or threatening unlawful violence towards another:

The use or threat of unlawful violence includes many different scenarios, but most often involves people coming to blows, attempting to hit other people or physically threatening to hit other people.

A common example of an affray is a brawl or melee between a group of people. Another example is a group of people ganging up on a victim or group of victims who aren’t necessarily fighting back.

If the offence only involves the threat of unlawful violence, these threats must consist of more than just words. For example, a person may verbally threaten to hit or hurt someone, but this must be backed up by physical threats as well, like raising a fist or a weapon at another person.

• Causing a “person of reasonable firmness” to fear for the personal safety:

This is a test of the level of public alarm and concern that is generated by the affray as a whole. The prosecution must successfully argue that the conduct that occurred all together (so not just the conduct of an individual offender) would have or actually did cause people to genuinely fear for their safety. Often times the prosecution can show evidence of the public reaction to help them with this argument. Evidence of people calling the police or security, running away from the incident, or actually getting caught up or injured by the violence will help prove that the violent conduct caused actual fear.

It should be noted that there is no requirement for people outside of the affray to actually be present. The prosecution is able to argue this from a purely hypothetical standpoint – so something along the lines of “if someone else had been there, it’s obvious the level of violence was so high they would have been afraid for themselves”. However, if there are other people present, this makes the conduct more serious. The more involved bystanders become in the violent conduct, the harsher the penalty that will likely follow.

• Intending to cause or threaten violence OR being aware that conduct is violent/threatening:

This element means that a person cannot unintentionally or accidentally engage in violent or threatening conduct and still be charged with affray. In most circumstances the intention to use or threaten violence is self-explanatory from a person’s actions. Actively engaging in a fight or physically accosting another person is difficult to do without knowledge and intention.

However, there may be circumstances where a person’s conduct is misinterpreted as violent or threatening. For example, someone watching from afar may see two friends “play-fighting” with each other and form the view that something much more serious is taking place. Additionally, someone might interpret innocuous words and gestures as violent threats if they lack context or have made the wrong assumptions.

Defences available:

Self-defence:

A person might not have committed an affray if they can show on the facts that they were acting in defence of themselves, another person or their property. This is because an affray involves the use or threat of unlawful violence, and violent conduct committed in legitimate self-defence is lawful.

As a defendant, a person has to only show that there is a reasonable case for self-defence on the facts and then it is the prosecution’s job to prove beyond reasonable doubt a person was not acting in self-defence.

The court applies a test to the facts to determine whether a person acted in self-defence or not. It must be found:

• That a defendant honestly believed their conduct was necessary in the situation; AND
• That a normal, objective bystander would look at the situation as the defendant understood it and also find that they had made a reasonable and proportionate response.

At times the court will find that a person did genuinely believe their actions were necessary but can’t reasonably accept that their response was appropriate and proportionate to the situation. This is known as “excessive self-defence” and means a person will not be acquitted of the affray. However, while not absolving a person of the offence it can still be used to get a more lenient penalty on sentence.

Penalties:

 Affrays are sentenced based on collective responsibility. That means that each person involved in an affray is responsible for all of the conduct and consequences of the offence.

The Court takes a fairly strict view on affrays – particularly because they often involve public violence, young men and drugs/alcohol. This is something the community has significant concerns about and the Court must be seen to be heavily condemning this kind of conduct and dealing out appropriately harsh sentences.

An affray is known as a “Table 1” offence – which means a person will be tried and sentenced in the Local Court unless the prosecution or the accused choose to deal with it on indictment and take it up to the District Court. There are different maximum penalties depending on whether a person is sentenced in the Local or District Court. The District Court is generally reserved for more serious matters and there are therefore harsher maximum penalties available under this jurisdiction.

The Court is also able to order non-custodial alternatives to imprisonment that allow a person to remain in the community under a certain level of supervision. These community-based sentences generally involve a “good behaviour bond” and can require a person to report to community corrections at regular intervals, undertake community service or submit to conditions that restrict or dictate certain parts of their lifestyle.

Almost half of the affray offences that were sentenced between September 2018 and December 2021 were dealt with by way of a Community Corrections Order (‘CCO’). This is a community-based alternative to imprisonment like the ones mentioned above.

Of the 26.5% of cases that were dealt with by a term of imprisonment – either by an Intensive Corrections Order or full-time custody – the vast majority had a prior offences on their criminal record.