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DANGEROUS OPERATION OF A VEHICLE
What is Dangerous Operation of a Vehicle?
It is illegal for a person to operate a vehicle, or interfere with the operation of a vehicle dangerously, on any public place. You may be convicted of dangerous operation of a vehicle if you operate a vehicle in a manner that a reasonably competent and careful driver would consider dangerous.
Elements of the Offence
To found a conviction of dangerous operation of a vehicle the prosecution must be able to prove beyond a reasonable doubt:
Circumstances of Aggravation
The existence of certain circumstances surrounding a charge of dangerous operation of a vehicle may:
At law, such circumstances are known as "circumstances of aggravation". The following circumstances of aggravation apply to charges of dangerous operation of a vehicle:
DANGEROUS OPERATION OF A VEHICLE (SIMPLICITER)
Elements of the Offence
Dangerous operation of a vehicle (simpliciter) is the standard and most common dangerous operation charge. You may be guilty of dangerous operation of a vehicle (simpliciter) if, having regard to all the facts and circumstances of your case, you operated a vehicle, or in any way interfered with the operation of a vehicle:
Factors Relevant in determining whether the Operation was Dangerous
In determining a charge of dangerous operation of a vehicle, the magistrate or jury must decide whether or not the manner of operation was dangerous to other road-users in all the circumstances of the case. In making that decision, the court or jury will consider the following factors:
Generally, the two most important and determinative factors are:
Jurisdiction of the Magistrates Court
If your charge of dangerous operation of a vehicle (simpliciter) does not involve circumstances of aggravation, it can be dealt with before a single magistrate and without a jury. If, on the other hand, your charge involves one or more aggravating factors, it is likely that it will have to be heard in a superior court on indictment.
Pleading to the Charge of Dangerous Operation of a Vehicle (without Circumstances of Aggravation) in the Magistrates Court
In the event that you decide to enter a plea of guilty to the charge of dangerous operation of a vehicle, the magistrate will give you the option of electing to having the matter finalised in the Magistrates Court.
Apart from saving time and cost, the primary benefit of having your charge determined in the Magistrates Court is that the maximum penalty which can be imposed is three (3) years imprisonment or a fine of $7,500.00. On the other hand, if your charge is determined by a jury in the District Court, the maximum penalty a judge can impose is five (5) years imprisonment and $30,000.00.
In the event that you plead guilty to the charge of dangerous operation of a vehicle in the Magistrates Court, the magistrate will convict and sentence you then and there. In such circumstances, professional legal representation will more than likely have a significant impact on the ultimate sentence imposed.
If, on the other hand, you decide to plead not guilty to the charge, the magistrate will set a date for a full hearing in the Magistrates Court. Such hearings usually occur a couple of months after the first mention.
At the hearing the magistrate will listen to the witnesses, examine the exhibits, consider the evidence overall and decide whether or not you are guilty.
The maximum penalty for a first offence not involving circumstances of aggravation is $15,000.00 or three (3) years imprisonment. Licence disqualification is a mandatory penalty for dangerous operation of a vehicle (simpliciter). For a first offence, licence disqualification will apply for a minimum period of six (6) months.
It is important to recognise that jail is a sentencing option in respect of offences of dangerous operation of a vehicle (simpliciter). Indeed, the court must impose a term of imprisonment as the whole or part of the punishment if:
In deciding on a sentence, the court is able to consider factors, personal to the driver, which tend to lessen the seriousness of the charge. The court also has the power to impose non-custodial sentences, such as intensive correction orders, fine option orders and/or community service orders, where appropriate.
Generally, the court is hesitant to imprison youthful first offenders for dangerous operation of a vehicle (simpliciter).
DANGEROUS OPERATION OF A VEHICLE CAUSING GRIEVOUS BODILY HARM OR DEATH
Elements of the Offences
It is an offence to:
To prove the charge of dangerous operation of a vehicle causing grievous bodily harm or death, the prosecution must prove objectively and beyond a reasonable doubt that:
Again, the presence of circumstances of aggravation may:
Dangerous Operation of a Vehicle causing Grievous Bodily Harm
The term 'grievous bodily harm' is defined to mean:
In the offence of dangerous operation of a vehicle causing grievous bodily harm, the extent of any punishment often depends upon the extent of the injury sustained by the victim.
If you are convicted of the charge of dangerous operation of a vehicle causing grievous bodily harm, you will be liable to a maximum of seven (7) years imprisonment.
If you are convicted of the charge and were under the effect of an intoxicating substance, you will be liable to a maximum of ten (10) years imprisonment.
If you are convicted of the charge and your blood alcohol reading was equal to or exceeded 0.15%, you will be liable to a maximum of fourteen (14) years imprisonment.
Upon conviction you may also be required to pay money as restitution for any loss or damage caused. As previously stated, a mandatory minimum licence disqualification period of six (6) months applies to all offences of dangerous operation of a vehicle.
Dangerous Operation of a Vehicle causing Death
Dangerous operation of a vehicle causing death is one of the crimes taken most seriously by society and the courts. It is also a crime that carries substantial penalties in terms of imprisonment.
The maximum penalty for dangerous operation of a vehicle causing death not involving circumstances of aggravation is seven (7) years imprisonment.
If an intoxicating substance is involved the maximum term of imprisonment rises to ten (10) years.
In the event that the intoxicating substance is alcohol and your blood alcohol reading was greater that 0.15%, you can be sentenced to up to fourteen (14) years imprisonment.
It is settled law that a person convicted of dangerous operation of a vehicle causing death and who was intoxicated at the time of driving must serve a term of imprisonment as the whole or part of their sentence.
If convicted of dangerous operation of a vehicle causing death you will suffer an absolute disqualification from holding a driving licence. In the event that you are disqualified for life, you may be able to lodge an appeal to set aside the disqualification after a period of two (2) years.
Manslaughter arising from an Incident of Driving
Manslaughter occurs when a person unlawfully kills another person in circumstances which do not constitute murder. The charge of manslaughter (where a motor vehicle related fatality occurs) is reserved for the most serious cases of death arising from a driving incident.
The difference between the charge of manslaughter and that of dangerous operation of a vehicle causing death turns on the standard of proof, or fault, required.
Manslaughter arising out of a driving incident infers that the driver was criminally negligent or, in other words, did more than just fail to take reasonable care.
For example, you may be charged with manslaughter in respect of a driving incident if you:
Charges of manslaughter require trial by jury in the Supreme Court. If you are found guilty, the maximum penalty is imprisonment with hard labour for life.
In general terms, juries are unwilling to convict drivers of manslaughter, and prefer to convict on the alternative offence of dangerous operation of a vehicle causing death.
RELATED OFFENCES & SENTENCING
It is illegal to drive a motor vehicle in any public place without due care and attention, or without reasonable consideration for other road users. The term 'due care and attention' refers to a degree of care and attention which a reasonably prudent, capable and careful driver would be expected to exercise in the circumstances.
The overriding test for this offence has two distinct limbs:
Again, both facets of the test are objective, and must be proved beyond a reasonable doubt.
The maximum penalty for careless driving is $3,000.00 or six (6) months imprisonment. If convicted, the court also has the power to disqualify you from holding a drivers licence.
Given that the charge of careless driving usually relates to fact situations observed by a police officer, it is normally very difficult to defend.
Leaving the Scene of an Accident (Callous Disregard)
The driver of a vehicle involved in an accident causing property damage, injury or death is legally obliged to:
If no other person is present at the accident scene, then no offence is committed. If a person is injured or killed, or over $2,500.00 in property damage results, the driver must also report the incident to police as soon as is practicable.
In the event that a person is injured or killed and you fail to comply with the above requirements, the maximum penalty is a $2,500.00 fine or twelve (12) months imprisonment. In all other circumstances you may receive a $750.00 fine or six (6) months imprisonment.
Providing Information to the Police
It is a criminal offence to fail to provide your correct name and address to a police officer who observes, or reasonably suspects, that you have committed a traffic offence, or witnessed an accident. It is a defence to say that you did not, or could not, know the information required. Provided you hold an open licence, you can nullify the charge by producing your details within forty-eight (48) hours at a specified police station.
Information Outline is available courtesy of AussieLegal's online legal
information and law firm referral service.
you want further information, we recommend contacting the law firm of Ryan
& Bosscher Lawyers who specialize in this area of law. They are located
at 3rd floor, Bank of NSW Chambers, 33 Queen Street, Brisbane 4000,
or call them on (07) 3229 3166.
Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become the premier Criminal Defence firm in Queensland, committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.
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