Last updated 15 February 2019

More serious traffic offences are brought before the court as a matter of course, usually through service by police of a summons or notice to appear and are governed by the Criminal Code Act 1899 (Qld) (Criminal Code).

A person who operates a vehicle dangerously commits a criminal offence (s 328A Criminal Code). What amounts to dangerous driving is, however, not clearly defined or easily assessed. The Criminal Code provides that dangerous operation of a vehicle includes operating a vehicle at a speed or in a way that is dangerous to the public. Case authorities show that the driving must be assessed objectively in light of what might be expected of a competent and careful driver (R v Webb [1986] 2 Qd R 446). Usually, observations by other road users as to the speed and movement of a vehicle are highly relevant. While there must be some element of fault on the driver’s part contributing to the driving, the reasons behind the driving or the driver’s state of mind are irrelevant.

The Criminal Code gives some examples of relevant considerations (e.g. the condition and use of the road, the condition of the vehicle, any drugs or alcohol affecting the driver and the amount of traffic on the road). Actual danger to others (e.g. to passengers or other road users) need not be shown. The potential for danger to the public is sufficient to bring driving within the definition of dangerous.

Speed alone may not necessarily amount to dangerous driving, but it is a relevant factor in conjunction with others for example the direction of the road and the amount of traffic on it. Falling asleep at the wheel does not necessarily amount to dangerous driving; the question is whether the condition of tiredness immediately preceding falling asleep was objectively dangerous, for example whether the driver was aware of their tiredness or there had been an extended period of time without sleep (Jiminez v R (1992) 173 CLR 572).

Driving without due care and attention

A person who drives a motor vehicle without due care and attention commits an offence and can be fined up to 40 penalty units ($5222) or imprisoned for up to six months (s 83 Transport Operations (Road Use Management) Act 1995 (Qld) (TORUM Act)).

Due care and attention means the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances. This is a lesser offence than dangerous driving, but has similar considerations. Drivers are often charged with this offence as an alternative or in addition to a more specific charge, such as driving through a red light or crossing a double centre line. This is particularly so when the act complained of poses some risk to other road users rather than being merely a technical breach of the law. When a person is found guilty of this offence, the disqualification of their licence is not automatic but can occur.

What court deals with dangerous driving offences

Dangerous driving is an indictable offence that must be dealt with summarily in the Magistrates Court (s 552BA Criminal Code) and the maximum penalty is 200 penalty units ($26 110) fine or three years imprisonment. Where a person commits the offence under the influence of alcohol while racing or excessively speeding, or where they have previously been convicted of the same offence, the charge is dealt with summarily in the Magistrates Court unless the person elects for a trial by jury to be dealt with in the District Court (s 552B Criminal Code). In the District Court, they are liable to a penalty of 400 penalty units ($52 220) or five years imprisonment.

If the driving has caused death or grievous bodily harm to another person, a magistrate cannot try the case and the matter must be dealt with by the District Court (either for trial or sentence). Upon conviction, the offender is liable to a maximum penalty of 10 years imprisonment, and if they were affected by drugs or alcohol at the time, excessively speeding or taking part in an unlawful race or speed trial, they are liable to a maximum of 14 years imprisonment. A person is also liable to 14 years imprisonment by leaving the scene before police arrive if they reasonably ought to know that someone has been killed or injured.

In certain circumstances, the court must impose a term of imprisonment (e.g. where a person has been twice previously convicted of the offence). The prison term may be wholly or partially suspended under s 147 of the Penalties and Sentences Act 1992 (Qld). If the court suspends the term, the person remains in the community for the suspended part of the term. However, if another offence is committed, the court may impose the term to be served (see the Sentencing chapter).

The legislature and the courts view dangerous driving as a very serious offence because of the obvious potential harm to others. The maximum penalties have increased, and the Court of Appeal has subsequently reflected a higher range of sentences to be imposed within those statutory maximums, particularly where harm has resulted, stating that ‘the community expects, and rightly expects, appropriately deterrent penalties’ (R v Wilde; ex parte Attorney General (2002) 135 A Crim R 538).

An automatic minimum six-month period of disqualification from driving applies when a person is convicted of operating a vehicle dangerously (ss 86(3), 86(5) TORUM Act). For less serious examples of the offence and if the person charged has an otherwise good traffic history, it is worth considering a written submission to the prosecution that a charge of driving with undue care and attention be substituted.