Victorian Current Acts Victorian Current ActsS. 318(1) amended by Nos 9554 s. 2(2)(Sch. 2 item 58), 9576
s. 11(1), 111/1986
s. 180(2)
(Sch. 2 item 5), 127/1986 s. 102(Sch. 4 item 5.4),
49/1991
s. 119(1)
(Sch. 2 item 61), 13/1992 s. 3(1), 48/1997
s. 60(1)(Sch. 1 item 89).
(1) Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence and shall be liable to level 3 imprisonment (20 years maximum) or a level 3 fine or both.
Note to s. 318(1) inserted by No. 48/2018 s. 95.
Note
An offence against this subsection is a category 2 offence under the Sentencing Act 1991 . See section 5(2H) of that Act for the requirement to impose a custodial order for this offence unless the circumstances set out in paragraphs (a) to (e) of that subsection exist.
S. 318(1A) inserted by No. 52/2014 s. 16, repealed by No. 34/2017 s. 14, new s. 318(1A) inserted by No. 34/2017 s. 35.
(1A) The standard sentence for an offence under subsection (1) is 8 years.
Note
See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences.
S. 318(2) amended by No. 127/1986 s. 102(Sch. 4 item 5.4).
(2) For the purposes of subsection (1) a person drives a motor vehicle culpably if he drives the motor vehicle—
(a) recklessly, that is to say, if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving; or
(b) negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case; or
(c) whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle; or
(d) whilst under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle.
S. 318(2A) inserted by No. 59/2004 s. 5.
(2A) Without limiting subsection (2)(b), negligence within the meaning of that subsection may be established by proving that—
(a) a person drove a motor vehicle when fatigued to such an extent that he or she knew, or ought to have known, that there was an appreciable risk of him or her falling asleep while driving or of losing control of the vehicle; and
(b) by so driving the motor vehicle the person failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case.
S. 318(3) amended by Nos 9576 s. 11(1), 68/2009 s. 97(Sch. item 40.13).
(3) An indictment for an indictable offence under this section shall specify which form of culpability within the meaning of subsection (2) is charged but evidence of the whole of the circumstances shall be admissible on the trial on the indictment.
S. 318(4) amended by No. 9576 s. 11(1).
(4) A person who is convicted or acquitted of an indictable offence under this section shall not in respect of the death concerned subsequently be prosecuted for unlawful homicide or under this section.
S. 318(5) amended by Nos 9576 s. 11(1), 68/2009 s. 97(Sch. item 40.14).
(5) A person who is convicted or acquitted of any form of unlawful homicide not referred to in this section shall not in respect of the death concerned subsequently be prosecuted under this section and no other form of unlawful homicide shall be charged in the same indictment with an indictable offence under this section.
S. 318(6) amended by Nos 9576 s. 11(1), 127/1986 s. 102(Sch. 4 item 5.4), 13/1992 s. 3(2), 68/2009 s. 97(Sch. item 40.14), 93/2009 s. 45.
(6) A person who is convicted or acquitted of an indictable offence under this section shall not in respect of the circumstances concerned be proceeded against under the Road Safety Act 1986 or the Marine Act 1988 for having driven a motor vehicle whilst under the influence of alcohol or a drug and no such offence shall be charged in the same indictment with an indictable offence under this section.
S. 318(7) substituted by Nos 8338 s. 4, 78/1987 s. 4(2),
(7) "Drug" means a drug within the meaning of the Road Safety Act 1986 .
S. 318(8) repealed by No. 78/1987 s. 4(3).
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S. 319 amended by Nos 6658 s. 3, 6762 s. 13(c)(d), 7332 s. 2(Sch. 1 item 19), 7546 s. 6, repealed by No. 7645 s. 5, new s. 319 inserted by No. 59/2004 s. 6.