In Victoria, Part 1 Division 9 of the Crimes Act 1958 deals with serious traffic offences. There are three main offences which fall into this category. They are, in roughly decreasing severity:
- Culpable driving causing death,
- Dangerous driving which causes death/serious injury and;
- Dangerous or negligent driving while being pursued by police.
The distinction between culpable driving and dangerous driving is an important one.
Culpable driving causing death is the most serious of traffic offences in Victoria. Essentially it refers to causing the death of another person through one of four actions (and the charge must state which of the four is relevant):
- Driving recklessly. This basically means that the driver deliberately (and without any good reason) ignores a substantial risk that another person may die or suffer what is known as “grievous bodily harm” as result of their driving. This does not mean that the offence relates to situations where serious injury only is caused by the accident.
- Driving negligently. This basically means that a person fails majorly (and without any good reason) to take enough care to avoid the death or grievous bodily harm. Fatigue (that the person is likely to fall asleep) is specifically listed as a cause of negligence under the Act. Driving above or below the speed limit however, is not determinative of negligence
- Driving under the influence of alcohol). This is to such an extent that proper control of the vehicle cannot be maintained. Driving over the legal blood alcohol limit is not necessarily determinative.
- Driving while under the influence of drugs. This is to such an extent that proper control of the vehicle cannot be maintained.
Factors such as the condition of the driver (as noted above), the vehicle (whether the vehicle is in a state to be driven at all) and the roads, as well as other external factors, may all be relevant in such a consideration.
It is important to remember that culpable driving causing death is a standalone offence. If someone is charged with culpable driving causing death they cannot also be charged with other relevant offences, such as unlawful homicide or driving under the influence of drugs or alcohol under the Road Safety Act, whether at the same time or subsequently.
Dangerous driving causing death is a separate offence to culpable driving causing death, but operates as an alternative verdict. It essentially operates in two situations where culpable driving cannot be made out: the offence was not serious enough to warrant a conviction of culpable driving (or was not proven) and where serious injury was caused instead of death. The offence also refers specifically to driving at a speed (or manner) which is dangerous in all the circumstances. The offender must also have voluntarily driven in such a way.
This is a separate offence involves dangerous or negligent driving by being pursued by police. The most significant difference between this offence and the first two offences is that it does not require any death or injury to another person. It simply involves dangerous or negligent driving, defined the same way, but while having been given an order to stop by a police officer and then being pursued by police. Obviously this does not relate to situations where a direction to stop by a police officer is heeded but it is important to remember that it does apply even if the police chase is subsequently called off but the offender is not caught.
The penalties vary depending on the offence proven. Culpable driving causing death carries a level 3 penalty (20 years maximum). Importantly, culpable driving causing death has a baseline sentence of nine years’ imprisonment. This provides the court with guidance as to what should be the median sentence for culpable driving, although the courts still have discretion to impose sentences for culpable driving causing death above and below this figure.
Dangerous driving attracts either a level 5 penalty (10 years’ imprisonment maximum) or a level 6 penalty (5 years’ imprisonment maximum) for dangerous driving causing death and serious injury respectively. Dangerous or negligent driving while being pursued by police attracts a penalty of three years’ imprisonment.