August 16, 2024
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Road Traffic Offences – Driving Without Due Care or Reasonable Consideration, and Reckless or Dangerous Driving
Some of the more common offences a driver may face under the Road Traffic Act 1961 (the “RTA”) include “Reckless or dangerous driving” under Section 64 of the RTA (“Reckless Driving”) and “Driving without due care or reasonable consideration” under Section 65 of the RTA (“Careless Driving”). This article explores what these offences mean and the judicial approach to dealing with such offences, as well as some of the possible outcomes a person may face when charged with such offences.
Broadly, recklessness involves the offender’s recognition of a risk (such as beating a red light, or driving under the influence) but ignoring that risk. Recklessness can also be made out where a risk is obvious but the driver unreasonably failed to consider it. Carelessness on the other hand is typically made out when a driver’s actions fall below what is reasonably expected of a competent driver.
Second, there are 4 degrees of harm involved in such offences: death, grievous hurt, hurt, and non-injury scenarios or property-damage-only cases.
“Hurt” is elevated to “grievous hurt” when among other things, a victim has suffered permanent blindness or hearing loss in either eye, amputation, permanent disfiguration of the head or face, permanent incapacity to a body part, a fracture or dislocation of a bone (including the cartilage in the nose) or has been placed on medical leave for 20 days or more. The full list may be found at Section 320 of the Penal Code 1871.
The dividing line between what is reckless and what is careless is not always clear but this line must be drawn as the fines and / or imprisonment terms imposed can differ significantly between Reckless and Careless Driving.
The table below lays out the minimum / maximum fines / terms of imprisonment for the offences of Reckless and Careless driving (not including any period of disqualification from driving which may be imposed). It may be observed that for certain levels of harm, the offence of Reckless Driving can carry mandatory minimum terms of imprisonment.
Generally, the Courts tend to begin by considering the level of Harm caused, and the Culpability of the Offender to determine the starting sentence. A crucial consideration is whether the case warrants a jail term or whether a fine is sufficient where there is no mandatory imprisonment. This is called the “custodial threshold” which is often a foremost consideration to potential offenders.
There is case law to suggest that at least for the offence of Reckless Driving, the custodial threshold is not usually reached in cases where the level of Culpability lies between low to moderate and the degree of Harm is between low to medium (i.e. boxes 1, 2, and 4 but not 5 in the table below), if there are no aggravating factors. However, each case will be determined on their own facts.
The level of Harm and Culpability are assessed on a case-by-case basis. For Culpability, conduct which tends to fall within the low to moderate range includes behaviour such as beating a red light. If there are multiple breaches of safe driving practices, it may be expected that Culpability will be higher, and where very dangerous conduct such as driving under the influence or road racing is concerned, these factors may push Culpability into the severe range.
For Harm, naturally if death is caused, it will fall within the serious range. Where victims have suffered multiple fractures or a degree of severe permanent injury, Courts have also tended to assess Harm at between the moderate to serious ranges. On the other hand, where there are no fractures or severe injuries, Harm tends to fall at the low end. It should be noted that potential harm to other road users is also accounted for in this analysis.
After the Court has decided its starting sentence, including whether or not a sentence of imprisonment is warranted, then the Court will adjust the sentence based on other relevant aggravating and mitigating factors. Some examples of other aggravating factors include whether the offender has a record of past driving offences.
In conclusion, understanding the law behind the offences of Reckless and Careless Driving can be a complicated and stressful procedure. The law is also continually developing in this regard, and the best advice one should walk away with is to drive safely and with proper consideration for the rules and for other road users.
Defining the Offences
First, when faced with a possible RTA offence, it is important to understand whether one’s conduct amounts to “carelessness” as opposed to “recklessness” which is more severe. These terms are not defined in the RTA but have developed over case law.Broadly, recklessness involves the offender’s recognition of a risk (such as beating a red light, or driving under the influence) but ignoring that risk. Recklessness can also be made out where a risk is obvious but the driver unreasonably failed to consider it. Carelessness on the other hand is typically made out when a driver’s actions fall below what is reasonably expected of a competent driver.
Second, there are 4 degrees of harm involved in such offences: death, grievous hurt, hurt, and non-injury scenarios or property-damage-only cases.
“Hurt” is elevated to “grievous hurt” when among other things, a victim has suffered permanent blindness or hearing loss in either eye, amputation, permanent disfiguration of the head or face, permanent incapacity to a body part, a fracture or dislocation of a bone (including the cartilage in the nose) or has been placed on medical leave for 20 days or more. The full list may be found at Section 320 of the Penal Code 1871.
The dividing line between what is reckless and what is careless is not always clear but this line must be drawn as the fines and / or imprisonment terms imposed can differ significantly between Reckless and Careless Driving.
The table below lays out the minimum / maximum fines / terms of imprisonment for the offences of Reckless and Careless driving (not including any period of disqualification from driving which may be imposed). It may be observed that for certain levels of harm, the offence of Reckless Driving can carry mandatory minimum terms of imprisonment.
The Courts’ Approach to Sentencing
It is not possible here to lay out all of the possible considerations a sentencing Court may take into account. At this time of writing, the judicial approach to sentencing for Careless and Reckless driving appears to still be undergoing development.Generally, the Courts tend to begin by considering the level of Harm caused, and the Culpability of the Offender to determine the starting sentence. A crucial consideration is whether the case warrants a jail term or whether a fine is sufficient where there is no mandatory imprisonment. This is called the “custodial threshold” which is often a foremost consideration to potential offenders.
There is case law to suggest that at least for the offence of Reckless Driving, the custodial threshold is not usually reached in cases where the level of Culpability lies between low to moderate and the degree of Harm is between low to medium (i.e. boxes 1, 2, and 4 but not 5 in the table below), if there are no aggravating factors. However, each case will be determined on their own facts.
The level of Harm and Culpability are assessed on a case-by-case basis. For Culpability, conduct which tends to fall within the low to moderate range includes behaviour such as beating a red light. If there are multiple breaches of safe driving practices, it may be expected that Culpability will be higher, and where very dangerous conduct such as driving under the influence or road racing is concerned, these factors may push Culpability into the severe range.
For Harm, naturally if death is caused, it will fall within the serious range. Where victims have suffered multiple fractures or a degree of severe permanent injury, Courts have also tended to assess Harm at between the moderate to serious ranges. On the other hand, where there are no fractures or severe injuries, Harm tends to fall at the low end. It should be noted that potential harm to other road users is also accounted for in this analysis.
After the Court has decided its starting sentence, including whether or not a sentence of imprisonment is warranted, then the Court will adjust the sentence based on other relevant aggravating and mitigating factors. Some examples of other aggravating factors include whether the offender has a record of past driving offences.
In conclusion, understanding the law behind the offences of Reckless and Careless Driving can be a complicated and stressful procedure. The law is also continually developing in this regard, and the best advice one should walk away with is to drive safely and with proper consideration for the rules and for other road users.
