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If there is a death or serious injury

What driver can be charged with if their driving results in the death or serious injury of another person, including culpable driving.

The Crimes Act 1958 sets out 2 offences that someone may be charged with if their driving results in the death or serious injury of another:

See ss. 318, 319—Crimes Act 1958 (Vic).

Culpable driving causing death

A person who causes the death of another person by culpable driving will be guilty of an indictable offence.

What is culpable driving?

A person may be found to have driven a motor vehicle culpably if they drive the motor vehicle:

  • recklessly, that is if they consciously and unjustifiably disregard a substantial risk that the death of another person or the infliction of grievous bodily harm may result
  • negligently, that is if they fail unjustifiably and to a gross degree to observe the standard of care that a reasonable person would have observed (all circumstances considered), or
  • while under the influence of alcohol or another drug to the extent that they are incapable of having proper control of the vehicle.

See s. 318(2)—Crimes Act 1958 (Vic).

What the prosecution must prove

The prosecution has to establish beyond reasonable doubt that:

  • the accused was driving the car
  • they drove the car
    • recklessly
    • negligently
    • while under the influence of alcohol to the required extent
    • while under the influence of a drug to the required extent, and
  • the driving of the accused (in one of the 4 manners specified) was the cause of the death.

The kind of culpability must be stated in the charge.

Falling asleep

A driver can be found to be negligent if they are driving a motor vehicle when they are so fatigued that they knew or ought to have known that there was an appreciable risk of falling asleep while driving or of losing control of the vehicle. They must also have failed unjustifiable and to a gross degree to observe the standard of care that a reasonable person would have observed in the circumstances.

See s. 318(2A)—Crimes Act 1958 (Vic).

Penalties

The maximum penalty is a level 3 imprisonment (maximum 20 years) or a level 3 fine or both.

See s. 318—Crimes Act 1958 (Vic).

Licence cancellation and alcohol interlock

Dangerous driving causing death or serious injury is defined as a serious motor vehicle offence under the Sentencing Act 1991 (Vic). If the driver is found guilty or convicted of this offence their licence must be cancelled for at least 24 months.

The court may also make a finding that the offence happened while the person was under the influence of alcohol or other drug and that this contributed to the offence. If the court makes this finding in relation to alcohol then the driver will only be able to be issued with another licence if they agree to have an alcohol interlock device fitted to their vehicle.

See ss. 87P, 89, 89C—Sentencing Act 1991 (Vic) and Drink driving offences and Interlocks and alcohol related driving offences causing injury or death.

Dangerous driving causing death or serious injury

A person who drives a motor vehicle at a speed or in a manner dangerous to the public having regard to all circumstances of the case, causes the death or serious injury to another person is guilty of an offence.

The offence was established in 2004 in response to government concerns about the high road toll. It was an attempt to fill the gap between the offence of dangerous driving and the more serious offence of culpable driving.

Serious injury

A serious injury is an injury that endangers life or is substantial and prolonged. This may include a combination of injuries and also the destruction of a foetus, regardless of whether the woman suffers any other harm.

See s. 15—Crimes Act 1958 (Vic).

Penalties

The maximum penalty depends on whether the person dies or is seriously injured.

Where the person is seriously injured the maximum penalty is level 6 imprisonment (maximum 5 years).

Where the person dies the maximum penalty is level 5 imprisonment (maximum 10 years)

Note: Although this is an indictable offence it is able to be tried summarily in appropriate circumstances.

Licence cancellation

Dangerous driving causing death or serious injury is defined as a serious motor vehicle offence under the Sentencing Act 1991 (Vic). If the driver is found guilty or convicted of this offence their licence must be cancelled for at least 18 months.

The court may also make a finding that the offence happened while the person was under the influence of alcohol or other drug and that this contributed to the offence. If the court makes this finding in relation to alcohol then the driver will only be able to be issued with another licence if they agree to have an alcohol interlock device fitted to their vehicle.

See ss. 87P, 89, 89C—Sentencing Act 1991 (Vic) and Drink driving offences and Interlocks and alcohol related driving offences causing injury or death.

Restorative justice opportunity

July 2016. A pilot program is being developed to offer a voluntary restorative justice mediation session between victims and adult offenders involved in driving incidents where there has been a death or serious injury. Please contact VLA's Indictable Crime Program Manager Trieu Huynh if you have any such driving matters that are likely to be resolved within the next few months to discuss whether they may be suitable for this pilot program.

See RMIT Centre for Innovative Justice.

The person may be charged with dangerous driving instead

It may be possible to charge a driver with both culpable driving causing death and dangerous driving, if the same course of driving causes death to a person in one car and places passengers in another vehicle in danger of death. This is because although the incidents arise out of the same driving incident, the elements of two offences are separate and distinct.

A person charged with culpable driving causing death or serious injury may be subsequently prosecuted for dangerous driving, whether they are convicted or acquitted.

More information

Legislation

Crimes Act 1958 (Vic)

  • s. 15—serious injury includes a combination of injuries
  • s. 319—dangerous driving causing death or serious injury

See Crimes Act 1958 (Vic).

Magistrates’ Court Act 1989 (Vic)

  • s. 54(1A)—Level 5 or 6 offences are able to be tried summarily

See Magistrates' Court Act 1989 (Vic).

Interpretation of Legislation Act 1984 (Vic)

  • s. 51(1)—offences under 2 or more laws

See Interpretation of Legislation Act 1984 (Vic).

Sentencing Act 1991(Vic)

  • s. 8P(d)—defines a serious motor vehicle offence (to include dangerous driving causing death or serious injury)
  • s. 89—directions for cancellation of driver licence for drivers found guilty of dangerous driving causing death or serious injury where alcohol was a causative factor
  • s. 89C—in addition to making an order under s. 89 the court may make a finding that the offender was under the influence of alcohol or another drug and that this contributed to the accident

See Sentencing Act 1991 (Vic).

Cases

The High Court handed down a decision in June 2012 which evaluates dangerous driving. The court found that the definition was the same regardless of whether the offence was one under the Road Safety or the Crimes Act.

See King v The Queen [2012] HCA 24 (20 June 2012).

There is a Supreme Court decision about the imposition of a cumulative sentence for 2 counts is against the principle of double jeopardy.

See R v Bekhazi [2001] VSCA 178 (12 October 2001).

Reference

RMIT Centre for Innovative Justice

This centre has been given a grant to develop and implement a restorative justice conferencing program for adults who have been charged with a driving offence that resulted in the death or serious injury of a person. This will operate at the stage where the offender is ready to take responsibility for their actions. The victim must also be willing to participate. The program will involve a scheduled, mediated encounter between a consenting victim, the offender and sometimes extended families and the broader community. This is sometimes called victim-offender mediation. The victim can seek answers for any unresolved questions about what happened from the offender, and the offender may wish to offer an apology.

This system will be offered as a complement to the criminal justice process. It is not an alternative to a criminal trial.

Restorative Justice Conferencing Pilot (pdf, 125 KB)(opens in a new window)

RMIT's Centre for Innovative Justice has funding to develop and implement a restoratvive justice conferencing pilot program for driving matters involving death or serious injury.

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