Menacing driving involves causing another person to fear harm to their person or property. This offence is found in the Road Transport Act 2013. The available penalties are mandatory disqualification periods upon conviction and imprisonment. The elements of the offence are easier to prove than the elements to a predatory driving charge and are also less serious in nature.
Predatory driving
Predatory driving also involves the use of a motor vehicle to cause fear of harm, however, the criminal intent involved is more serious, and the type of harm that is contemplated is specific. In short, it involves using a vehicle to cause or threaten an impact with another vehicle, with the intention to cause an occupant of the other vehicle actual bodily harm. This is a serious offence and is found in the Crimes Act 1900.
Being charged with any of these offences is a serious matter, particularly predatory driving. Sometimes, in the right circumstances, an experienced criminal lawyer can persuade police to reduce a charge of predatory driving to menacing driving. The difference can often mean escaping a gaol term.
If you have been charged with menacing or predatory driving and require legal assistance, we invite you to contact your nearest Prime Lawyers office.
We have offices at Sydney, Parramatta, Chatswood, Sutherland and Wollongong.
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.
Predatory driving is one of the most serious driving offences and is strictly speaking a criminal offence, which is legislated for in the Crimes Act, rather than the Road Transport legislation. Anyone charged with this offence is facing a strong prospect of a full time gaol sentence and therefore, it is imperative to obtain competent legal advice from an experienced traffic or criminal lawyer.
The Law
Pursuant to section 51A of the Crimes Act 1900, the driver of a vehicle is guilty of predatory driving if, while in pursuit of or travelling near another vehicle:
(a) engages in a course of conduct that causes or threatens an impact involving the other vehicle, and
(b) intends by that course of conduct to cause a person in the other vehicle actual bodily harm,
Penalties
The penalties for predatory driving are set out in the below table:
Penalties
First Offence
Second or Subsequent Major Offence
Maximum gaol term
5 years
5 years
Automatic disqualification period
3 years
5 years
Minimum disqualification period
12 months
2 years
Maximum disqualification period
Unlimited
Unlimited
Predatory driving is an offence that can be dealt with on indictment in the District Court or summarily in the Local Court. Matters such as predatory driving offences are usually dealt with "on indictment" where the prosecution forms a view that the jurisdictional limit of the Local Court is not sufficient to properly punish the offender.
The jurisdictional limit of, and therefore the maximum gaol term that can be imposed in the Local Court is 2 years.
Commentary
It is clear why predatory driving attracts much harsher penalties than menacing driving, when one considers what must be proved to make out the offence.
The police must prove that the conduct causes or threatens an impact involving another vehicle and further, that the purpose of such is to cause actual bodily harm to a person in the other vehicle.
An obvious and more serious example of this type of offence is where someone smashes into another vehicle to drive it off the road, with the intention of causing some injury to the driver of that vehicle and succeeds in doing so. Of course, actual injury and actual impact are not required for the commission of the offence; however, where there is not impact and/or injury, the circumstances would be considered less serious and a more lenient punishment will likely be imposed.
Predatory driving is not a commonly charged offence, however, even when dealt with in the Local Court, the statistics show that about half of the matters result in a term of full time imprisonment.
Defences
Predatory driving offences are not always easy to prove. The prosecution needs to prove that there is a specific intent to cause actual bodily harm. Therefore, even where there is an impact and someone is injured as a result, the case will succeed or fail on whether the prosecution can prove the intention of the alleged offending driver. of course, no harm needs actually be caused and an impact does not need to occur. There may be other factors about the person's manner of driving and perhaps action and/or words that are used that provide enough evidence for the prosecution to proceed with the charge.
Due to the difficulty in sometimes proving a charge of predatory driving, there is often opportunity to successfully defend the charge or, be able to negotiate with the prosecution for the laying of less serious offences, such as menacing driving or some form of dangerous driving.
Further, the harm that is alleged the driver intended to cause is actual bodily harm which, in the same way as it pertains to the offence of assault occasioning actual bodily harm, must be harm that is "more than merely transient or trifling".
Due to the seriousness of these types of charges, it is very important to obtain legal advice from someone experienced in dealing with serious traffic offences. Our lawyers have a wealth of knowledge and expertise in these types of matters.
If you have been charged with predatory driving and require assistance, our experts at 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 atSydney, Parramatta, Chatswood, Sutherland and Wollongong.
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