Dangerous Operation of Vehicle & Driving Without Due Care and Attention

In both States Dangerous Operation is the most serious charge that can arise out of driving a vehicle.  In New South Wales it the Court of Criminal Appeal has taken the step of setting out a guideline judgement the case of Regina v Whyte [2002] NSWCCA 343 which declares:

“where the offender’s moral culpability is high, a full time custodial head sentence of less than 3 years (in the case of death) and 2 years in the case of GBH) would not generally be appropriate.”

Although not expressed as harshly, the position in Queensland is similar.  Surprisingly though, the consequence of the dangerous driving (ie: death or GBH) is not the decisive factor when a court considers the appropriate sentence, it is the act or acts that made the driving ‘dangerous’.

A case in which I was involved known as The Queen v Kiarni Rae Jackson, unreported decision Judge Clare SC, delivered Southport District Court, 12 March 2015, typifies the need for a good lawyer to properly identify that.  Although she faced 10 years imprisonment, the act of dangerousness was that she failed to keep left for a few seconds.  That primarily lead to her receiving the very low sentence of only 2 months of actual imprisonment.

Having said that, both New South Wales and now also Queensland recognize that improper use of a vehicle can cause death or grievous injury in circumstances where the driver should not even face the real prospect of a period of actual imprisonment.  That is when the charge should be Driving Without Due Care & Attention, or Negligent Driving.

I was involved in the first case of Driving Without Care and Attention to go on appeal to a District Court to establish an authority.  It was called De Silva v Commissioner of Police [2020] QDC 241.  The reasoning behind taking that case on appeal was so that the appellate Judge could set a precedent establishing that, unlike the offence of Dangerous Operation Causing Death, this offence allowed for a defendant to be sentenced to some punishment other than a form of imprisonment.  And the Judge expressly allowed for that when he said:

“It was equally open to impose a substantial period of community service, or a substantial fine, and had I been sentencing the appellant, I might have been minded to impose a lengthy period of community service due to the mitigating factors.”

There are many other challenges in this area of criminal law relating to everything from the right disqualification to be imposed, all the way through to establish the dangerous of driving when there are no witnesses to it.   If you require assistance with any of these types of matters, I am only too pleased to assist.