Serious traffic offences in Tasmania are dealt with under two pieces of legislation; the Criminal Code Act 1924 and the Traffic Act 1925. Unlike other Australian states, such as Victoria where the offence of culpable driving causing death is considered separate from culpable homicide offences, this is not the case in Tasmania, although Tasmania does have the offence of dangerous driving causing death.
Culpable homicide is an offence under s 156 of the Criminal Code. Drivers have a duty of care under s 150 of the Criminal Code to use reasonable care to avoid danger to human life when driving a dangerous thing like a vehicle. Therefore a person can be charged with either murder or manslaughter, depending on their intent. Under s 157 of the Criminal Code Act, the driver can be charged with murder if they intended to use the vehicle they were driving to cause the death of another person (for example, by deliberately running someone over).
Under s 156 of the Criminal Code, the driver could be charged with manslaughter if there is “gross negligence” on the part of the driver. This could refer to, but is not limited to, excessive speed, fatigue or alcohol and drugs.
As in states like Victoria, there is an alternative offence of causing death by dangerous driving. Under s 167A of the Criminal Code, the driver must be driving in such a manner or at such a speed that is dangerous to the public, all things considered. The Code provides such examples of external factors which can be taken into consideration, such as the nature, use and condition of the street and the amount of traffic. Under s 167B of the Criminal Code a mirror offence applies where the victim did not die, but suffered grievous bodily harm.
The Traffic Act 1925 also contains the offences of reckless and negligent driving. Under s 32(1) of the Act, it is an offence to drive recklessly. This charge is essentially the same as that for dangerous driving causing death or grievous bodily harm under the Criminal Code, minus the requirement that a death or serious injury result. Under s 32(2) of the Act, it is also an offence to drive negligently in a general sense without causing death or injury, and taking into account the same conditions as for dangerous driving.
The Tasmanian Act also includes an alternative offence of causing death or grievous bodily harm by driving negligently and both the Traffic Act (s 32 (5)) and s 334 (d) of the Criminal Code make it clear that an offence can be charged as either offence (manslaughter or negligently driving causing death) despite the fact it could have been proceeded with as an offence under the other legislation.
Unlike other states, Tasmania’s Criminal Code does not impose specific penalties for crimes, although s 389 of the Code allows for any offence to be met with up to 21 years’ imprisonment (or a fine). In practice, crimes such as murder and manslaughter will usually attract a penalty that is severe, and often this will be a custodial sentence of some length.
The Traffic Act 1925, on the other hand, does provide specific penalties, often depending whether the offending is a first or subsequent offence. Reckless driving under s 32 of the Traffic Act carries a penalty of up to 20 units (or imprisonment for up to 2 years) for a first offences and up to 40 units (or imprisonment for up to 4 years) for a second/subsequent offence.
In the case of negligent driving, normally the penalty where no injury or death is caused is only a fine up to a maximum of 5 units. However where such driving causes death, the penalty is up to 10 units (or imprisonment for up to 1 year) for a first offence and up to 20 units (or imprisonment for up to 2 years) for a second/subsequent offence.
Where grievous bodily harm is caused by negligent driving, a penalty of up to 10 units (but imprisonment only up to 6 months) and up to 20 units (but imprisonment only up to 1 year) for a second/subsequent offence is warranted.