A driver has been sentenced to a term of imprisonment of three-and-a-half years after causing a catastrophic pile up in Sydney's M4 motorway in May 2019.
An Irish national Frantic Shanley, 36, died in the crash which involved 8 cars and a truck.
The gaoled driver had stopped on the motorway before suddenly merging in-front of other vehicles, the court found that he had done so because he had missed his exit and did not wish to incur a toll by travelling further.
Judge Jane Culver found that he had shown genuine remorse however.
"It is, without doubt, a deeply tragic case," Judge Culver said on Thursday in the NSW District Court.
Danger on New South Wales Roads
In New South Wales there are over 10,000 hospitalisations from road traffic crashes every year.
The majority of these hospitalisations are drivers, followed by motorcyclists.
There are over 1000 deaths per year on Australian roads.
New South Wales averages over 300 deaths in a year.
The majority of those killed are drivers and males.
The M4 is a motorway 50 km in length running from Penrith NSW to Sydney City. As with the story above, there are several accidents which occur on it every year which require hospitalisation.
Community Attitude
If you attend Penrith Court House, on any day of the week, you will hear a magistrate or judge stating that holding a licence within any Australian territory is a privilege, rather than a right.
Any person who bears a licence is deemed to have knowledge of the road rules to which they are bound and must ensure that they adhere to the standard of care expected of a reasonably prudent driver in the circumstances.
Should a person deviate from this standard of care, they may be charged with a road related offence.
The Law in New South Wales
In New South Wales, it is an offence to drive in a manner, pace or speed which may cause danger to other road users
Typically, if a person drives their vehicle with negligence, recklessness or at a dangerous speed, other road users are placed at a substantial risk.
To alleviate any risk placed onto other road users, section 117 of the Road Transport Act 2013 (NSW) criminalises such conduct. This section states as follows:
(1) A person must not drive a motor vehicle negligently.
(2) A person must not drive a motor vehicle on a road furiously,
recklessly, or at a speed or in a manner dangerous to the
public.
In order for a defendant to be guilty of an offence under this provision, the prosecution must demonstrate beyond a reasonable doubt that:
- The defendant was driving the vehicle, and
- The defendant was driving the vehicle in a manner that was below the reasonable standard of care expected of a reasonably prudent driver in the circumstances.
It is imperative to note that with respect to such offences, the prosecution is not burdened with demonstrating that the defendant held an intention to drive in a negligent, furious, or dangerous manner.
This is a strict liability offence which merely requires the prosecution to demonstrate that the defendant was driving the vehicle in the manner which is being alleged.
A judicial officer is primarily concerned with the risk of harm to other road users as a result of the manner of driving which is being alleged by the prosecution: Bevan v Coolahan [2019] NSWCA 217 at [109].
This assessment is carried out by the judicial officer in according to an "objective community standard" which applies to all road users.
The actual damage occasioned to the other driver(s) as a result of the manner of driving (whether it be negligent, dangerous or furious) will be assessed at the time of sentencing.
In applying the objective community standard test, the judicial officer is required to have regard to all of the facts depicted under section 117(3) of the Road Transport Act. These factors are set out below:
(3) In considering whether an offence has been committed under this section, the Court is to have regard to all the circumstances of the case, including the following:
(a) the nature, condition and use of the road on which the offence is alleged to have been committed,
(b) the amount of traffic that actually is at the time, or which might reasonably be expected to be, on the road,
(c) any obstructions or hazards on the road (including, for example, broken down or crashed vehicles, fallen loads and accident or emergency scenes).
Notwithstanding the objective community standard test which is applied by the judicial officer when assessing the manner of driving of the defendant, should it be apparent that circumstances and/or evidence exist in mitigation of the incident, the defendant should be encouraged to provide evidence thereof.
What is Negligent Driving ?
A person is deemed to have been driving negligently if that person has driven their vehicle in a manner "involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances": Director of Public Prosecutions v Yeo [2008] NSWCCA 953 at [27] per Johnson J.
His Honour observed that the test for negligence in like offence is [at 29]:
"...essentially whether the driver was exercising that degree of care which the ordinary prudent person would exercise in all circumstances, including the circumstances set out in s 42(3)".
The test set out above have latter been later accepted by many judgements, including, more recently, by Lerve DCJ in R v Piper [2021] NSWSC 279 at [52].
Whilst an offence of negligent driving is generally regarded as less serious than one of reckless driving or furious driving, should the conduct of the defendant have caused serious harm or death to the other road users, the defendant will be charged with a more serious offence such as those outlined below.
Pursuant to s 117(1):
(a) if the driving occasions death
for a first offence – the maximum penalty includes 30 penalty units or imprisonment for 18 months, or both.
For a second offence – the maximum penalty includes 50 penalty units or imprisonment for 2 years, or both.
(b) if the driving occasions grievous bodily harm
For the first offence – the maximum penalty includes 20 penalty units or imprisonment for 9 months, or both.
For the second offence – the maximum penalty includes 30 penalty units or imprisonment for 12 months, or both.
What is Reckless driving ?
Reckless driving has been defined as "driving in a manner so as to create a real risk of causing physical injury to another road user or causing damage to the property of another person which is classified as more substantial than minor damage which may be caused by an error of judgement in the course of parking one's vehicle": R v Lawrence [1982] AC 510.
It has been found that reckless driving or furious driving is regarded as objectively more serious than an offence of negligent driving: Yeo at [32] per Johnson J.
What is Dangerous driving ?
The offence of dangerous driving is one which includes the defendant's departure from the standard of driving required by a ordinary prudent driver in the circumstances.
It has been identified that the nature of the driving must be "significantly more serious than that required to make out an offence of negligent driving" (Prineas at [66]), such as the use of a vehicle to travel at exorbitant speeds against traffic during a busy traffic period.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.