Traffic Law

Menacing Driving

Any menacing driving offence is considered a serious traffic offence. Upon conviction for the offence, mandatory disqualification periods apply. There is always a risk of gaol sentence being imposed and for that reason, it is important to seek legal advice when charged with any type of menacing driving offence. Our Traffic Lawyers Sydney & NSW are experienced Traffic Lawyers and experts in Menacing Driving offences.

There are two types of menacing driving offences that one can be charged with. The more serious of the two is "menacing driving with intent". The other charge available is "menacing driving with the possibility of menace".

Menacing driving with intent

The Law

Pursuant to section 118(1) of the Road Transport Act 2013, a person must not drive a motor vehicle on a road in a manner that menaces another person with the intention of menacing that other person.

Penalties

The below table sets out the penalties available upon conviction for "menacing driving with intent":

Penalties

First Offence

Second or Subsequent Major Offence

Maximum court imposed fine

$3,300

$5,500

Maximum gaol term

18 months

2 years

Automatic disqualification period

3 years

5 years

Minimum disqualification period

12 months

2 years

Maximum disqualification period

Unlimited

Unlimited


Menacing driving with the possibility of menace

The Law

Pursuant to section 118(2) of the Road Transport Act 2013, a person must not drive a motor vehicle on a road in a manner that menaces another person if the person ought to have known that the other person might be menaced.

Penalties

The below table sets out the penalties available upon conviction for "menacing driving with the possibility of menace":

Penalties

First Offence

Second or Subsequent Major Offence

Maximum court imposed fine

$2,200

$3,300

Maximum gaol term

12 months

18 months

Automatic disqualification period

3 years

5 years

Minimum disqualification period

12 months

3 years

Maximum disqualification period

Unlimited

Unlimited



Commentary

It is clear from the above tables that the only difference in penalties between the two offences is the length of the gaol term that can be imposed. This is consistent with the concept that one should receive a harsher punishment when acting with intent.

It is important to note that, although the legislation does not define the word "menace", it makes it clear that the offence provision applies whether the victim is menaced with a threat of injury to their person or property. It is therefore argued that the definition of menace to be applied here is where there is a threat of harm, not when someone is just being extremely annoying/irritating on the road.

It must also be noted that although the alleged offender must be driving a vehicle on a road or road related area, the alleged victim (or property of the victim) is not required to be on a road at the time of the alleged offence.

Defences

For the more serious charge, the police need to not only prove that the driving was menacing but that there was also an intent to menace. Therefore, even where it is accepted that a driver did menace another (or their property), a defence can be successful if the Court finds that the police could not prove that the driver intended on being a menace.

For the less serious of the two charges, the police are not required to prove that there was intent to menace, however, only needs to satisfy the Court that, under the circumstances, the driver ought to have known that there was a possibility that the other person might be menaced. The police would still need to prove that the other person was menaced and further, it is argued, the police need to prove that the driver was aware of the actions that are alleged to have caused the menace. Of course, for obvious reasons, it can be seen why this particular offence is easier for the police to prove.

Finally, there is a statutory defence available, where it is a defence to any menacing driving charge If the driver could not, in the circumstances, reasonably avoid menacing the other person.

It must also be remembered that for the offence to have been committed, the police must prove that the menacing act was committed by the driver whilst driving and through his or her manner of driving. It is also important to remember that "menacing driving with the possibility of menace" is not a statutory alternative charge to the more serious charge of "menacing driving with intent". It must be charged separately if police wish to rely on it as a "back-up" and alternative to the more serious charge.

Double Jeopardy

The legislation makes it clear that someone cannot be found guilty of both "menacing driving with intent" and "menacing driving with the possibility of menace", where the allegations arise from the one incident.

Similarly, a driver cannot be found guilty of a menacing driving charge and negligent driving, reckless or furious driving, or dangerous driving, where the allegations arise from the one incident.

Menacing driving offences are serious and it is important to obtain competent legal advice if charged with this type of offence. Our traffic lawyers have the expertise to be able to advise whether or not there is a defence available (and successfully defend charges) or alternatively, to properly prepare and present a plea in mitigation of sentence where someone pleads guilty.

If you have been charged with a menacing driving offence and require assistance, Prime Lawyers - Traffic Law Division can help. Contact us to make an appointment with a traffic lawyer at your nearest Prime Lawyers office.

We have offices at Sydney, Parramatta, Chatswood, Sutherland and Wollongong. 

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