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s328A Criminal Code 1889 makes it an offence to operate a vehicle in a dangerous manner.
What the prosecution must prove.
The prosecution must prove that:
1. The defendant operated, or in any way interfered with the operation of a motor vehicle.
2. The defendant did so dangerously.
What it means.
The offence is not limited (as it was prior to 1997) to events occurring on a public road. The offence can be committed anywhere including on private property.
Dangerously means a manner or speed of driving that presents a real risk of injury or damage in all the circumstances. The risk may be to motorists, cyclists, pedestrians and the driver’s own passengers.
Relevant circumstances include:
• The nature, condition and use of the place.
• The nature and condition of the vehicle.
• The number of persons, vehicles or other objects that are, or might reasonably be expected in the vicinity.
• The concentration of alcohol or another intoxicant.
Driving while adversely effected by prescription medication is dangerous driving. Intoxication is not limited to alcohol or illegal drugs.
The prosecution must prove a serious breach of the proper conduct of a vehicle so serious as to be in reality, and not speculatively, potentially dangerous to others. The result of the driving is not itself proof the driving was dangerous though it may support that conclusion.
The prosecution do not have to prove an intention or mindset only that the driving was objectively dangerous. It does not matter whether a driver does their incompetent best, is only momentarily inattentive, is reckless or deliberately drives dangerously.
Whether the operation of a vehicle is dangerous is a matter of fact for a Magistrate or jury to decide.
Common examples of dangerous driving include speeding, drink driving, running red lights or stop signs, tailgating and driving fatigued. A person driving to the road rules can still drive dangerously for example travelling at the speed limit when the conditions (for example heavy rain or the presence of drunk revelers) make that speed dangerous.
Breaking a road rule does not automatically mean the driving is dangerous. Exceeding a speed limit by 25 kilometres an hour on a straight stretch of road with clear visibility, no other vehicles and no driveways or cross-roads would not necessarily pose a risk to others.
The offence of Dangerous Operation of a Motor Vehicle causing Death or Grievous Bodily Harm is dealt with separately.
The available defences.
The usual penalties.
The maximum penalty for the offence of Dangerous Operation of a Motor Vehicle is 3 years imprisonment.
That maximum penalty is increased to 5 years imprisonment if one of the following circumstances of aggravation is charge and proved:
• The person was adversely effected by a drug or alcohol.
• The person was excessively speeding, meaning more than 40km/hr over the speed limit.
• The person was involved in an unlawful race.
• The person was previously convicted of Dangerous Operation of a Motor Vehicle.
The law mandates the Court must impose a form of imprisonment (which includes a suspended sentence or intensive correction order) if the person has previously been convicted of:
• Dangerous Operation of a Motor Vehicle while Intoxicated; or
• Twice of any form of Dangerous Operation of a Motor Vehicle or drink or drug driving.
The maximum penalty is a poor numerical indicator of sentences usually imposed. It plays a very important role in setting the seriousness of an offence. The maximum penalty is hardly ever imposed.
Penalties for a first offence range from a fine to sentences of imprisonment. A sentence of fulltime imprisonment would generally only be imposed for a very serious example of the offence if there is no relevant criminal history.
Penalties for the offence of Dangerous Operation of a Motor Vehicle causing Death or Grievous Bodily Harm are dealt with separately.
Factors that affect the appropriate penalty include the risk posed by the driving, the duration of the driving, the number of people put at risk, and whether there was actual injury or damage to property
It is important to seek expert advice before dealing with an offence of Dangerous Operation of a Motor Vehicle.