General Driving Offences

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DRIVING RELATED OFFENCES

This section contains information in relation to the most common offences related to driving motor vehicles other than everyday traffic violations.  These offences are contained in Division 1 of the Road Traffic Act 1974 (WA) (The Act).  All references to legislation in this section relate to this Act unless otherwise stated.

These offences relate to such things as where death or injury arises from the way in which a person was driving a motor vehicle and other offences relating to driving motor vehicles in a manner which is dangerous or puts others at risk.

Upon being convicted by a Court, these offences almost always involve a mandatory period for of disqualification from holding a driver’s licence; these periods are stated in each offence listed. 

Circumstances of Aggravation

Where an offence in this section refers to “circumstances of aggravation”, such circumstances are defined as being present at the time of the alleged offence, when the person was:

  • Unlawfully driving the vehicle concerned without the consent of the owner or person in charge of the vehicle;
  • Driving the vehicle concerned on a road at 45 km/h or more above the speed limit; or
  • Driving the vehicle concerned to escape pursuit by a police officer.

Dangerous Driving Causing Death or Grievous Bodily Harm

Pursuant to s.59 of the Road Traffic Act 1974 (WA) (The Act), “dangerous driving causing death or grievous bodily harm” is committed when a person drives a motor vehicle and is involved in an “incident” which occasions death or “grievous bodily harm” to another person and at the time of the incident the person driving the motor vehicle was:

  • Under the influence of alcohol or drugs – or a combination of both – to such an extent as to be incapable of having proper control of the vehicle; or
  • Driving in a manner (which expression includes speed) that is, “having regard to all the circumstances of the case”, dangerous to the public or to any person.

The term “grievous bodily harm” means any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to the health of another person.

Definition of an “Incident”

An “incident” which occasions death or grievous bodily harm to another person includes, but is not limited to, the following, as per s.59B(1) and (2) of The Act:

  • The motor vehicle overturning or leaving a road while the person is being conveyed in or on the motor vehicle (whether as a passenger or otherwise) or causing another vehicle to overturn or leave a road;
  • The person falling from the motor vehicle while being conveyed in or on it (whether as a passenger or otherwise) or causing a person to fall from another vehicle;
  • An impact between any object or thing and the motor vehicle while the person is being conveyed in or on the motor vehicle (whether as a passenger or otherwise) or causing an impact between other vehicles or between another vehicle and any object, thing or person;
  • An impact between the person and the motor vehicle;
  • An impact of the motor vehicle with another vehicle or an object or thing in, on or near which the person is at the time of impact;
  • An impact with any object on or attached to the motor vehicle; or
  • An impact with any object that is in motion through falling from the motor vehicle.

Having Regard to All the Circumstances of the Case

The term “having regard to all the circumstances of the case” involves assessing the driving of the person to establish if the manner in which they were driving was dangerous to the public or any other person.  This assessment involves examining the “circumstances” though the eyes of the “reasonable person”, being a person who reflects the generally held standards of the community at the relevant time.  As such, the assessment is not an examination of whether the person charged believed their own actions to be dangerous.

If a person falls asleep and the relevant “incident” occurs whilst they are sleep or very shortly after they awaken, the examination of the manner of driving must focus on the period immediately before the person fell asleep.  The assessment will be whether the fact the person was continuing to drive whilst being so tired was sufficiently “dangerous”.  The reason for this is that when a person is asleep they cannot be held to be criminally responsible as their actions cannot be considered voluntary.  A person can only be guilty of an offence if their actions were voluntary.

Under the Influence of Alcohol/ Drugs

Since 2005, “dangerous driving causing death or grievous bodily harm” can be committed on the basis that the person was under the influence of drugs, alcohol or a combination of both “to the extent as to be incapable of having proper control of the vehicle”.  If there is sufficient evidence to support this element, the test in relation to “having regard to all the circumstances of the case” does not need to be considered.

Pursuant to s.59B(5) of the Act, a blood alcohol content of or above 0.15 is deemed to render a person sufficiently intoxicated to satisfy this element.

Defences

Pursuant to s.59B of the Act, a person charged with “dangerous driving causing death or grievous bodily harm” has a defence available to them if they can show that the death or grievous bodily harm which resulted was in no way attributable to the person’s intoxication or their manner of driving.

Penalty

“Dangerous driving causing death or grievous bodily harm” can be heard summarily in the Magistrates Court where it does not involve the death of another person.  If heard summarily, the maximum penalty that can be imposed is imprisonment for 3 years or a fine of up to $36,000.00.  The Magistrates Court must also order that the person be disqualified from holding a driver’s licence for at least 2 years.

Where it is heard in the District Court the maximum sentence depends on whether “circumstances of aggravation” existed at the time of the relevant time. 

Circumstances of Aggravation – Present

If “circumstances of aggravation” existed, the maximum penalty is:

  • If the person caused the death of another person – imprisonment for 20 years; or
  • If the person caused grievous bodily harm to another person – imprisonment for 14 years.

Circumstances of Aggravation – Not Present

If “circumstances of aggravation” were not present, the maximum penalty is:

  • If the person caused the death of another person – imprisonment for 10 years; or
  • If the person caused grievous bodily harm to another person – imprisonment for 7 years.

The court must also order that a person who has committed “dangerous driving causing death or grievous bodily harm” be disqualified from holding a driver’s licence for at least 2 years.

A person is eligible to make an application for an “extraordinary licence” 21 days after the disqualification order is made.  See “extraordinary licences” section for more information.

Mandatory Sentencing

Mandatory sentencing principles apply when “dangerous driving causing death or grievous bodily harm” is committed in “circumstances of aggravation”.  In such circumstances, pursuant to s.59(4A) of the Act, the court must impose a term of imprisonment of at least 12 months and that sentence cannot be suspended.

A charged person, who was a member of a “declared criminal organisation” at the relevant time may be subject to mandatory sentencing provisions, pursuant to s. 9D Sentencing Act 1995 (WA).  However, these provisions would only apply where the relevant driving was committed at the direction of or for the benefit of the organisation or in association with another/s who were also member of such an organisation.

Dangerous Driving Causing Bodily Harm

Pursuant to s.59A of the Road Traffic Act 1974 (WA) (The Act), “dangerous driving causing bodily harm” is committed when a person drives a motor vehicle and is involved in an “incident” which occasions “bodily harm” to another person and at the time of the incident the person driving the motor vehicle was:

  • Under the influence of alcohol or drugs – or a combination of both – to such an extent as to be incapable of having proper control of the vehicle; or
  • Driving in a manner (which expression includes speed) that is, “having regard to all the circumstances of the case”, dangerous to the public or to any person.

The person only needs to cause “bodily harm” to another person.  “Bodily harm” means any bodily injury which interferes with the health or comfort of a person.

Definition of an “Incident”

An “incident” which occasions death or grievous bodily harm to another person includes, but is not limited to, the following, as per s.59B(1) and (2) of The Act:

  • The motor vehicle overturning or leaving a road while the person is being conveyed in or on the motor vehicle (whether as a passenger or otherwise) or causing another vehicle to overturn or leave a road;
  • The person falling from the motor vehicle while being conveyed in or on it (whether as a passenger or otherwise) or causing a person to fall from another vehicle;
  • An impact between any object or thing and the motor vehicle while the person is being conveyed in or on the motor vehicle (whether as a passenger or otherwise) or causing an impact between other vehicles or between another vehicle and any object, thing or person;
  • An impact between the person and the motor vehicle;
  • An impact of the motor vehicle with another vehicle or an object or thing in, on or near which the person is at the time of impact;
  • An impact with any object on or attached to the motor vehicle; or
  • An impact with any object that is in motion through falling from the motor vehicle.

Having Regard to All the Circumstances of the Case

The term “having regard to all the circumstances of the case” involves assessing the driving of the person to establish if the manner in which they were driving was dangerous to the public or any other person.  This assessment involves examining the “circumstances” though the eyes of the “reasonable person”, being a person who reflects the generally held standards of the community at the relevant time.  As such, the assessment is not an examination of whether the person charged believed their own actions to be dangerous.

If a person falls asleep and the relevant “incident” occurs whilst they are sleep or very shortly after they awaken, the examination of the manner of driving must focus on the period immediately before the person fell asleep.  The assessment will be whether the fact the person was continuing to drive whilst being so tired was sufficiently “dangerous”.  The reason for this is that when a person is asleep they cannot be held to be criminally responsible as their actions cannot be considered voluntary.  A person can only be guilty of an offence if their actions were voluntary.

Under the Influence of Alcohol/ Drugs

Since 2005, “dangerous driving causing bodily harm” can be committed on the basis that the person was under the influence of drugs, alcohol or a combination of both “to the extent as to be incapable of having proper control of the vehicle”.  If there is sufficient evidence to support this element, the test in relation to “having regard to all the circumstances of the case” does not need to be considered.

Pursuant to s.59B(5) of the Act, a blood alcohol content of or above 0.15 is deemed to render a person sufficiently intoxicated to satisfy this element.

Defences

Pursuant to s.59B of the Act, a person charged with “dangerous driving causing bodily harm” has a defence available to them if they can show that the death or grievous bodily harm which resulted was in no way attributable to the person’s intoxication or their manner of driving.

Penalty

The maximum penalty for this “dangerous driving causing bodily harm” depends on whether circumstances of aggravation were involved.

The court must also order that a person found guilty be disqualified from holding a driver’s licence for the period of time stated below.  A person is eligible to make an application for an “extraordinary licence” 21 days after the disqualification order is made.  See “extraordinary licences” section for more information.

Circumstances of Aggravation – Not present

If the “dangerous driving causing bodily harm” did not involve “circumstances of aggravation” it will be heard in the Magistrates’ Court.  The maximum penalties are:

  • If it is a first offence – a fine of up to $900 or imprisonment for up to 9 months.  The court must also order that the person be disqualified from holding a driver’s licence for at least 12 months; or
  • If it is a second or subsequent offence – a fine of up to $1800.00 or imprisonment for up to 18 months.  The court must also order that the person be disqualified from holding a driver’s licence for at least 18 months.

Circumstances of Aggravation – Present

If the “dangerous driving causing bodily harm” involved circumstances of aggravation, it can be heard in the District Court or summarily in the Magistrates Court.  The maximum penalty the District Court can impose is imprisonment for 10 years.  The court must also order the person be disqualified from holding a driver’s licence for at least 2 years.

If the matter is heard summarily in the Magistrates Court, the maximum penalty is imprisonment for 3 years or a fine of up to $3,600.00.  The court must also order that the person be disqualified from holding a driver’s licence for at least 18 months.

 Mandatory Sentencing

Mandatory sentencing principles apply when “dangerous driving causing bodily harm” is committed in “circumstances of aggravation”.  In such circumstances, pursuant to s.59A(4A) of the Act, the court must impose a term of imprisonment of at least 6 months and that sentence cannot be suspended.

A person charged, who was a member of a “declared criminal organisation” at the relevant time may be subject to mandatory sentencing provisions, pursuant to s. 9D of the Sentencing Act 1995 (WA).  However, these provisions would only apply where the relevant driving was committed at the direction of or for the benefit of the organisation or in association with another/s who were also member of such an organisation.

Careless Driving Causing Death, Grievous Bodily Harm or Bodily Harm

Pursuant to s.59BA of the Road Traffic Act 1974 (WA) (The Act), it is an offence to “occasion death, grievous bodily harm or bodily harm to another person” as a result of an “incident” involving a motor vehicle where the person driving the motor vehicle did so “carelessly”.  “Carelessly” means that the person was driving without “due care and attention”“Due care and attention” is held to be the “degree of care and attention which a reasonable and prudent driver would exercise in the specific circumstances.”

“Careless” driving is of less seriousness that “dangerous” driving as indicated by the use of the term “without due care and attention”.  What is considered to be “careless” will be assessed objectively from the view of a “reasonable person”

Penalty

Careless driving causing death, grievous bodily harm or bodily harm” is heard in the Magistrates Court and the maximum penalty which can be imposed is imprisonment for 3 years or a fine of $3,600.00.  The court must also order that the person be disqualified from holding a driver’s licence for at least 3 months.

A person is eligible to make an application for an “extraordinary licence” 21 days after the disqualification order is made.  See “extraordinary licences” section for more information.

Driving in a Reckless Manner

Pursuant to s.60 of the Road Traffic Act 1974 (WA) (The Act), it is an offence for a person to “wilfully drive a motor vehicle in a reckless manner”.

A motor vehicle is said to be driven in a “reckless manner” where it is driven in a manner (including speed) that is inherently dangerous having regard to the circumstances surrounding the driving or is dangerous to the public or any person.

Driving in a reckless manner” does not require that a person suffer any injury only that the driving was within the definition of “reckless”.  It is not necessary that a person be put at risk or be in the vicinity of the driving for it to be committed.  If the prosecution cannot establish that a person was actually put at risk, the driving can still be classified as “inherently dangerous” meaning that it would have been dangerous if someone had been in the vicinity.

Whilst “driving in a reckless manner” requires the person to be driving in a “reckless manner”, the person must deliberately be driving in the manner which is deemed to be “dangerous”.  This is because of the use of the word “wilfully” in the wording.  The usual meaning of “reckless” would include things that were done somewhat inadvertently; however, because of the use of the word “wilful” that does not apply to “driving in a reckless manner”.

Penalty

The maximum penalty for “driving in a reckless manner” depends on whether or not there were circumstances of aggravation involved.  The court must also order that a person found guilty be disqualified from holding a driver’s licence for the period of time stated below.  A person is eligible to make an application for an “extraordinary licence” 21 days after the disqualification order is made.  See “extraordinary licences” section for more information.

Circumstances of Aggravation – Not Present

Where there are no “circumstances of aggravation” involved, “driving in a reckless manner” is heard summarily in the Magistrates’ Court.  The maximum penalty is:

  • For a first offence – a fine of $6,000.00 or imprisonment for 9 months. A court MUST also make an order disqualifying the person from holding a driver’s licence for at least 6 months;
  • For a second offence – a fine of $9,000.00 or imprisonment for 9 months. A court MUST also make an order disqualifying the person from holding a driver’s licence for at least 12 months; or
  • For a third or subsequent offence – a fine of $12,000.00 or imprisonment for 12 months.  A court MUST also make an order disqualifying the person be permanently disqualified from holding a driver’s licence.  Pursuant to s.24 Road Traffic (Authorisation to Drive) Act 2008 (WA), where a person is permanently disqualified they may make an application to the court to have that disqualification removed after 10 years.

Circumstances of Aggravation – Present

Where “circumstances of aggravation” were involved, “driving in a reckless manner” can be heard in the District Court or summarily in the Magistrates Court.  The maximum penalty is imprisonment for 5 years.  If it is heard in the Magistrates Court, the maximum penalty is imprisonment for 2 years.

If it is a first or second offence, the court must order that the person be disqualified from holding a driver’s licence for at least 2 years.  If it is a third or subsequent offence, the court must order that the person be permanently disqualified from holding a driver’s licence.  Pursuant to s.24 Road Traffic (Authorisation to Drive) Act 2008 (WA), where a person is permanently disqualified they may make an application to the court to have that disqualification removed after 10 years.

Mandatory Sentencing

A person found guilty of “driving in a reckless manner” where “circumstances of aggravation” were involved must be sentenced to a term of imprisonment of at least 6 months.  This term of imprisonment cannot be suspended.

Driving at Reckless Speed

Pursuant to s.60A of the Road Traffic Act 1974 (WA) (The Act), it is an offence for a person to “drive at a speed which is determined to be reckless”.  “Driving at reckless speed” is committed where a person:

  • Drives a motor vehicle at 155km/h or more; or
  • Drives a motor vehicle at 45km/h or more above the speed limit which applies to the road they are driving on.  For example, a person detected driving at 105km/h, or more, on a road to which a 60km/h limit was applicable would commit this offence.

Penalty

The maximum penalty for “driving at reckless speed” depends on whether or not there were circumstances of aggravationinvolved.  The court must also order that a person found guilty of “driving at reckless speed” be disqualified from holding a driver’s licence for the period of time stated below.  A person is eligible to make an application for an “extraordinary licence” 21 days after the disqualification order is made.  See “extraordinary licences” section for more information.

Circumstances of Aggravation – Not Present

Where there are no “circumstances of aggravation” are involved, “driving at reckless speed” is heard summarily in the Magistrates Court.  The maximum penalty is:

  • For a first offence – a fine of $6,000.00 or imprisonment for 9 months. A court MUST also make an order disqualifying the person from holding a driver’s licence for at least 6 months;
  • For a second offence – a fine of $9,000.00 or imprisonment for 9 months. A court MUST also make an order disqualifying the person from holding a driver’s licence for at least 12 months; or
  • For a third or subsequent offence – a fine of $12,000.00 or imprisonment for 12 months.  A court MUST also make an order disqualifying the person be permanently disqualified from holding a driver’s licence.  Pursuant to s.24 of the Road Traffic (Authorisation to Drive) Act 2008 (WA), where a person is permanently disqualified they may make an application to the court to have that disqualification removed after 10 years.

Circumstances of Aggravation – Present

Where “circumstances of aggravation” were involved, “driving at reckless speed” can be heard in the District Court or summarily in the Magistrates Court.  The maximum penalty is imprisonment for 5 years.  If it is heard in the Magistrates Court, the maximum penalty is imprisonment for 2 years.

If it is a first or second offence, the court must order that the person be disqualified from holing a driver’s licence for at least 2 years.  If it is a third or subsequent offence, the court must order that the person be permanently disqualified from holding a driver’s licence.  Pursuant to s.24 of the Road Traffic (Authorisation to Drive) Act 2008 (WA), where a person is permanently disqualified they may make an application to the court to have that disqualification removed after 10 years.

Mandatory Sentencing

A person found guilty of “driving at reckless speed” where “circumstances of aggravation” were involved must be sentenced to a term of imprisonment of at least 6 months.  This term of imprisonment cannot be suspended.

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