Australia: When does negligent driving become a criminal offence? Which case won?

Last Updated: 26 September 2018
Article by Mark Warren

The Facts

Collision between car and motorbike leads to serious injuries

In the mid-afternoon of 18 April 2016, a driver was driving her car along Nicholson Street, Crows Nest in Sydney, looking for a parking spot.

She had an aversion to parking in darkened parking stations and preferred instead to park on the street. In searching for a parking spot, she turned in front of an oncoming motor bike. The motorcyclist tried to evade the car, but there was a collision and the rider was thrown from his bike, suffering significant injuries.

Those injuries included a compound fracture of his right leg, with bone piercing through the skin above the knee, severe ligament damage, various broken bones, dislocated knee, foot laceration and a large open wound on the shin.

The motorcyclist had to stay in hospital for about a month where he had major surgery on his leg. It was not expected that he would be able to walk without assistance until at least four months after discharge from hospital.

Driver convicted of Negligent Driving Occasioning Grievous Bodily Harm

The court determined that the driver's failure to keep a proper lookout was above the mid-range of objective seriousness for an offence of this nature. In other words, an independent observer would have found it extremely difficult to understand how she could not have seen the motorbike if she were keeping a proper lookout as the law requires.

There were no environmental factors that impeded the driver's view. It was daylight with little or no traffic around and speed was not an issue. In fact, a witness estimated the motorbike's speed at the time of the collision as between 20-25 kph.

The driver was convicted in the Local Court in the Downing Centre of Negligent Driving Occasioning Grievous Bodily Harm (OGBH) contrary to section 117 (1) (b) of the Road Transport Act 2013 and not giving way to an oncoming vehicle contrary to regulation 63 (3) of the Road Rules 2014.

Penalties for negligent driving

The penalties for the Negligent Driving (OGBH) for a first offence are nine months of imprisonment, a three year automatic licence disqualification with a minimum of twelve months and a fine of up to $2,200.00. The offence against the Road Rules carries a fine of up to $2,200.00.

The magistrate convicted the driver on a plea of guilty, reduced the licence disqualification to the minimum twelve months and fined her a total sum of $1,400.

Driver appeals to District Court against severity of sentence

The driver appealed the decision to the District Court, saying the sentencing was too harsh (severity appeal), asking the District Court to allow her appeal, quash the conviction and place her on a section 10 (1) (b) non-conviction good behaviour bond under the Crimes (Sentencing Procedure) Act 1999.

That way she would not have a criminal conviction recorded against her and would keep her licence.

It was up to the District Court to determine whether to allow her appeal and quash the conviction.

case a - The case for the driver

case b - The case for the prosecution

  • I pleaded guilty to both charges at the first available opportunity, so I am entitled to the maximum possible discount on the sentence.
  • At 73 years of age, I have no prior criminal convictions and am a person of good character.
  • I have a strong need for a driving licence and disqualification would cause me hardship. This includes social isolation, inability to work and therefore also financial hardship.
  • My daughter suffers from schizoaffective / bipolar disorder and I need to drive to Sydney each week to check on her welfare, otherwise her mental health deteriorates.
  • Indeed, a criminal conviction would disqualify me from the position of minister and would impact my ability to teach music and work with children and the elderly.
  • My 40-year career as a Justice of the Peace would be over if I have a criminal conviction.
  • I have gained insights into my offending behaviour by completing a traffic offender programme.
  • I am filled with remorse and am very sorry for my actions.
  • A section 10 non-conviction is far too lenient in the circumstances, as it would mean that the driver suffers no penalty at all other than the public acknowledgment of her guilt.
  • The offence is not trivial in nature, as it carries a maximum penalty of nine months in prison. Indeed, the injuries to the victim are extremely serious.
  • There was no environmental impediment - the accident occurred in daylight, the road was level and dry and there were no other vehicles in the intersection.
  • There is no evidence of the driver being affected by mental or medical conditions.
  • The argument regarding inability to work and consequent financial hardship is irrelevant, because loss of income due to the loss of a driving licence is one of the ordinary consequences of conviction for an offence of this nature.
  • In any case, there is no evidence before the court that the driver will be unable to continue her work within her church or will be unable to teach music to children due to the inability to obtain a police clearance.
  • The hardship that will be caused to the appellant's daughter cannot be regarded as exceptional, as she is assisted to a satisfactory level by a community mental health team.
  • The driver's driving record is unimpressive. Of the 18 driving offences she has committed since the year 2000, 16 have been for speeding, which suggests a lack of commitment to public safety.
  • Even though there are strong subjective factors in the driver's favour, they are not enough given the seriousness of the offence.

So, which case won?
Cast your judgment below to find out

Vote case A – the case for the driver
Vote case B – the case for the prosecution

Mark Warren
Criminal law
Stacks Collins Thompson

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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