What are the Penalties for Dangerous Driving Occasioning Grievous Bodily Harm?

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By Sahar Adatia and Jimmy Singh.

We all know that using your phone whilst driving is dangerous.

But now, there are calls that using your phone whilst crossing roads is equally as bad – and pedestrians should be penalised for it.

This week, the NRMA released its latest pedestrian safety report, Look Up, finding that over one-in-three pedestrians are behaving like “smombies” – or, smartphone zombies.

Put simply, these are people who cross busy city streets while engrossed in their smartphone or wearing headphones.

The report – the fifth instalment in its road safety series – highlights an observational study of 26,390 pedestrians across three intersections in the Sydney CBD and Parramatta and found that pedestrian trauma accounts for 17 percent of all deaths on NSW roads and nine percent of serious injuries.

Worryingly, the report also found that more than 1,900 pedestrians are killed or hospitalised from being hit by vehicles each year, and in 2018, 67 pedestrians lost their lives.

According to NRMA Road Safety Expert, Dimitra Vlahomitros, “smombies” need to put their phones in their pockets and pay attention to crossing intersections safely.

“Distracted walking is a form of inattentional blindness and when you undertake this behaviour you are effectively playing chicken with fast moving traffic – the results of which can be catastrophic,” Ms Vlahomitros said.

“Almost every Australian owns a smartphone and too many of them are focusing on their screens or blocking out their ability to hear traffic instead of focusing on crossing the road safely. The fact that three in every 100 pedestrians are crossing illegally while using their phones is also alarming.

“Statistics already show that the elderly, very young and those who have been drinking are already at risk when crossing the road, so adding ‘smombies’ to the list only further enhances the need to crack down on this behaviour.”

Pedestrian Council of Australia Calling for Government to Fine Distracted Pedestrians $200

It turns out that the NRMA isn’t the only body concerned about the dangers of absentminded pedestrians.

Last year, the Pedestrian Council of Australia called for the government to crack down on distracted pedestrians by issuing them with a $200 fine for not paying attention whilst crossing the road.

The aim of the fine would be to deter pedestrians from carrying out distracting behaviour such as texting whilst crossing the road or listening to music, oblivious to traffic.

Both such activities can have very dangerous consequences for all road users.

Speaking of the dangerous behaviour, Chairman of the Pedestrian Council of Australia, Harold Scruby, said that distracted walking is an unsafe act that pedestrians are rarely punished for.

“This behaviour is out of control. You only have to watch the behaviour of pedestrians in Sydney or anywhere in Australia to see that it is a modern phenomenon that’s incredibly dangerous,” Mr Scruby said.

“The penalties are currently very low for distracted pedestrians and they are rarely even enforced because it is often too difficult.”

Mr Scruby also said that absentminded pedestrians can cost people their lives and feared nothing is being done about it.

“There is a huge potential for harm when pedestrians crossroads while distracted,” Mr Scruby said.

He also expressed his concern that it’s not simply the pedestrians who can get hurt.

“If a driver is forced to swerve to avoid a person, they could end up harming themselves or someone else.”

The Dangers of Pedestrian Smartphone Distraction

In September 2018, NSW Police set up an operation in the CBD targeting pedestrians plugged into their phones and crossing the roads like zombies.

They filmed pedestrians and issued on-the-spot fines of $75 in an attempt to decrease accidents associated with absentminded pedestrians.

Given the increasing rate of pedestrian death in the past four years, going from 156 in 2014 to over 180 in 2018, NSW Police wanted to warn pedestrians not to be distracted by their phones when crossing the road.

“We are seeing many pedestrians acting like zombies on our roads, just concentrating on their phones,” Chief Inspector Phil Brooks said.

“They don’t realise what is going on around them and are getting struck by vehicles.”

There are currently no laws preventing people from using their phones while walking on or near roads.

It is estimated that a third of pedestrians are unfocused when they cross the road, largely side-tracked by their phones.

Proposal for New Pedestrian Penalty: “Cross Road While Distracted”

According to Mr Scruby, the introduction of a fine for distracted pedestrians would not only ensure people focused on the roads, but also benefit those who do the right thing.

The penalty proposal, titled “crossroad while distracted”, would see pedestrians being able to be booked even if they were crossing on a green pedestrian light.

However, the proposal has divided opinions nation-wide, with many Australians maintaining that it is the pedestrian’s responsibility to make sure they are crossing the road safely.

“About time. Instead of reducing speed limits the onus should go back to the pedestrian if they are not paying attention,” one Facebook user said.

“It should be the same fine as drivers get for using their phone while driving,” another suggested.

Meanwhile, some slammed the idea, suggesting it is purely an attempt to raise revenue.

“Come on what’s next getting a fine for excessive use of air,” one person asked.

“Gotta love a nanny state,” another user added.

Honolulu Introduces Fines for Pedestrians Using Their Mobile Phones – Will Australia Follow Suit?

In October 2017, Hawaii’s capital Honolulu introduced spot fines for pedestrians using their mobile phones while crossing the street, ranging up to $US99.

The legislation, referred to as the Distracted Walking Law, is one of the first of its type in the world and came about in response to a pedestrian accident rate that has risen by between five and 10 per cent in the United States, Britain and Australia since 2010, following years of steady decline.

Whether Australia will follow suit still remains unknown.

What we do know, however, is that using a mobile phone whilst driving can increase the risk of a collision four-fold; furthermore, that texting whilst driving is even more dangerous.

So, pedestrians Snapchatting, Instagramming and taking selfies whilst crossing roads may also be at a high risk.

Even a quick chat can be hazardous because the talking on the phone means reaction time drops.

It is perhaps unsurprising then that Chairman Scruby believes that “our pedestrian laws are 50 years out of date”.

In fact, if the consequence of committing these activities as a driver results in serious injuries on a pedestrian, it can result in the police prosecuting for dangerous driving occasioning grievous bodily harm or dangerous driving occasioning death.

Table Of Contents

What are the Penalties for Dangerous Driving Occasioning Grievous Bodily Harm?
What are Circumstances of Aggravation?
What is Grievous Bodily Harm?
What Must the Prosecution Prove?
Defences to the Charge of Dangerous Driving Occasioning Grievous Bodily Harm

What are the Penalties for Dangerous Driving Occasioning Grievous Bodily Harm?

Under section 52A(3) Crimes Act 1900 (NSW), anyone who is guilty of dangerous driving occasioning grievous bodily harm will face a penalty of up to 7-years prison.

Anyone who is guilty of aggravated dangerous driving occasioning grievous bodily harm will face a penalty of up to 11-years prison under section 52A(4) Crimes Act 1900 (NSW).

In fact, the law says that a court ought to impose a term of Full-Time Imprisonment unless the offender has a low level of moral culpability. For example, a low level of moral culpability is where there was a momentary inattention or misjudgement.

The law also says that it would be appropriate for a court to impose a sentence of 2-years imprisonment where there is a high level of criminal responsibility. Criminal responsibility includes factors such as the extent of alcohol or drugs in your body, extent of speeding, extent of aggressive driving, the number of people who were exposed to risk and the nature and extent of the injuries sustained to the victim.

The above is reflected in the case of R v Whyte [2002] NSWCCA.

What are Circumstances of Aggravation?

Circumstances of aggravation is where at the time of impact occasioning the grievous bodily harm, the prescribed concentration of alcohol was present in the offender’s blood or breath, or where the offender was driving at a speed that exceeded more than 45km/h from the applicable speed limit, or where the offender was driving to escape police pursuit, or where the offender’s ability to drive was very substantially impaired by the influence of a drug or combination of drugs and intoxicating liquor.

What is Grievous Bodily Harm?

The word grievous bodily harm here is where there is serious or permanent injury occasioned on the victim.

What Must the Prosecution Prove?

In order to be found guilty for this offence, the prosecution must first prove each of the following elements of the crime beyond reasonable doubt in court:

You drove a motor vehicle; and
The vehicle you drove was involved in an impact with the victim; and
The impact from this caused grievous bodily harm to the victim; and
While you were driving, you either:
- Were under the influence of a drug or alcohol; or
- Were driving in a speed or manner which caused a danger to other road users.

In fact, if the prosecution fails to prove each of the above elements of this crime, you will be found not guilty by the court. This will result in the charge being dismissed and you being acquitted from the charge.

All that the prosecution needs to prove, in proving that you drove in a speed or manner dangerous to other road users is that your actions posed a danger, real or potential to the public. This depends on the circumstances, such as:

Speed of your vehicle at the time.
Whether you were observing the traffic laws at the time.
Extent of traffic that was present at the time or expected to be present at the relevant time.
Conditions of the road and/or vehicle i.e. whether the breaks of the vehicle were due for repairs.
Quality of your driving which can be deciphered from the immediate result from the driving.

The above is reflected in the case of R v Buttsworth [1983].

In determining whether the vehicle was involved in an impact the laws outlines the circumstances in which a vehicle is involved in an impact occasioning the grievous bodily harm through any one of the following:

Where the vehicle overturning or leaving a road while the person is being conveyed in or on it;
Where there is an impact between any object and the vehicle while the person is being conveyed in or on the vehicle;
Where there is an impact between the vehicle and person;
Where the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact;
Where there is an impact with anything on, or attached to the vehicle;
Where there is an impact with anything that’s in motion through falling from the vehicle;
Where the person is falling from the vehicle, or being thrown or ejected from it, while being conveyed in or on the vehicle;
Where there is an impact between any object (including the ground) and the person, as a result of the person being or protruding outside the vehicle, while the person is being conveyed in or on the vehicle.

Defences to the Charge of Dangerous Driving Occasioning Grievous Bodily Harm

A person charged with this will be found not guilty and acquitted from this charge by the court if any one of the following defences apply:

Where the injury occasioned by the collision is not actually attributed from (as relevant):
- The speed of the vehicle; or
- The manner the vehicle was driven; or
- The accused was under the influence of a drug or intoxicating liquor (or combination of both).
Where the offence was committed under a necessity or duress.

Published on 24/06/2019