The ‘Basic’ Offence of Careless Driving
Section 83 of the Transport Operations (Road Use Management) Act 1995 states that a person commits an offence if he or she drives a motor vehicle or a road or elsewhere:-
without due care and attention; or
without reasonable consideration for other persons using that road or place.
The maximum penalty is 40 penalty units or 6 months imprisonment.
A conviction automatically attracts 3 demerit points. Additionally, the court also is empowered to impose a licence disqualification if satisfied that:
“having regard to the nature of the offence, or to the circumstances in which it was committed, …the offender should, in the interests of justice, be disqualified…”.
It is important to note that whether or not a disqualification should be imposed (and if so, the duration of any such disqualification) is a matter at the discretion of the Magistrate. It is not mandatory and one of those issues that is often the focus of a traffic lawyer dealing with such a charge, given the consequences of a licence disqualification to most people.
The ‘Aggravated’ Offence of Careless Driving
On 18 June 2018, the law in Queensland changed in some notable respects. Firstly, law was amended so as to add ‘circumstances of aggravation’ to the offence of careless driving.
A ‘circumstance of aggravation’ is a fact or circumstance which, if proven, renders the person liable to a higher maximum penalty, or to a mandatory minimum penalty which might otherwise not apply.
The law now states that if the person’s driving causes the death or grievous bodily harm of another person, the maximum penalty is 80 penalty units or 12 months imprisonment. If, in addition to that, the driver was an unlicensed driver for that motor vehicle at the time, then the maximum penalty doubles to 160 penalty units or 2 years imprisonment.
For an aggravated offence, there is a mandatory minimum licence disqualification period of at least 6 months. Whether or not a higher disqualification period should be imposed will be influenced by the particular circumstances of the case (such as a previous traffic record, the manner of driving, the age of their person before the court and other issues relevant to their character).
Prior to 18 June 2018, there was no circumstance of aggravation for a careless driving charge. Even if the person’s careless driving caused the death or grievous bodily harm of a person, the maximum penalty was only 40 penalty units or 6 months imprisonment; and there was no mandatory disqualification period.
Charging Options for Police
A further consequence of the changes on 18 June 2018 are the expanded charging options for police with respect to a charge of driving without due care or attention.
The police can only give an on-the-spot fine (“infringement notice”) for an offence if the law allows them to do so.
Prior to 18 June 2018, the police had no power whatsoever to issue an infringement notice for an offence of driving without due care and attention, or an offence of driving without reasonable consideration for others. As such, police were required to either issue a ‘Notice to Appear’ in court, or a person might also receive a ‘Complaint & Summons’ requiring them appearance in court on a specified date.
Now, if the police intend to take action against you for the “basic” offence, they can either issue an infringement notice (which will be for 4 penalty units, and which will attract 3 demerit points), or they can require you to appear in court (by serving a Notice to Appear, or a Complaint and Summons).
If you are served with a Notice to Appear or Complaint and Summons, I strongly recommend that you contact an experienced traffic lawyer as soon as possible. I undertake a lot of cases involving traffic law and welcome enquiries from people facing charges of this kind. Anderson Fredericks Turner offers a free case assessment for traffic law charges.
If you engage a lawyer to represent you, it will be their job to assess what options you may have available. For instance, it may be possible to undertake case conferencing with the prosecutor about whether a lesser charge, or one that can be dealt with by an infringement notice, is appropriate. The Queensland Police Service Operations and Procedures Manual (OPM Issue 67, Public Edition, 3 December 2018) at Clause 3.16.2 specifically states that case conferencing cannot occur with a person who is not legally represented.
An approach can then be made to the police for the court prosecution to be discontinued on the basis that you be served with an infringement notice. Of course, by taking this path, you avoid any possibility of being convicted in a court (and the possibility of a court ordered disqualification being imposed).
It is important to note that if you plead guilty or are found guilty and the court disqualifies you from driving for careless driving, it cannot, by law, grant a work or day licence. In other words, a disqualification from driving is just that; an absolute disqualification from driving under any circumstances whatsoever during the period of the disqualification.
People often ask me whether or not they really need a lawyer to represent them in relation to their traffic charge. The answer I often give, is “No, you don’t need a lawyer, you are more than free to represent yourself. But is it worth the risk?”
I’ll give you an example. I am lawyer. I am an experienced criminal and traffic lawyer. I am not an accountant or a tax lawyer. When tax time comes around (as it does every year), I am perfectly entitled to lodge my own income tax return. I may even receive a tax refund of a few hundred dollars if I do it myself, but I risk missing claiming deductions I am lawfully entitled to that may be picked up by qualified professional. This could potentially cost me hundreds, if not thousands, of dollars. It may not, but I choose not to take that risk.
The same is true when charged with an offence and need to go to court. By representing yourself, you may be unaware of a provision of the law which could work to your benefit. You may fail to bring something to the attention of the court of which the court should be aware. You should bear in mind that the police prosecutor is likely to be quite friendly and courteous to you (although this is not always the case!), and he or she may even sound like they are giving you advice. But remember, it is not the prosecutor’s job to assist you or be on your side. So if you want someone on your side, someone who will ensure that your best interests are protected, and that your case is fairly, squarely and fearlessly put before the court, you really should engage legal representation.
It is not possible in this context to cover comprehensively the law relating to careless driving. The purpose of outlining this information is to provide a useful starting pint for people who may be seeking a better understanding of the laws that exist and operate in Queensland.
If you are seeking specific advice or representation regarding a charge of driving without due care and attention, or any other charge for that matter, you are welcome to contact our team for a free case assessment. Our firm will generally offer fixed fee legal costs for cases of this kind, which helps take the guesswork out of what you ultimate costs may be.
The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.
Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving careless driving. Although available for all courts throughout Queensland, our lawyers operate from local offices in Brisbane, Beenleigh, Maroochydore, Toowoomba and Townsville.