Dangerous Navigation Causing Death
One of the most serious criminal offences you can commit on the water is Dangerous Navigation Occasioning Death. The law provides a heavy maximum penalty. Dangerous The term “Dangerous” encompasses a broad range of behaviour. There is precious little case-law surrounding “Dangerous Navigation”, but the law on “Dangerous Driving” is a good guide. A few principles can be discerned:
- The test is objective. In other words, it makes no difference whether the operator thought what they were doing was dangerous or not.
- Whether or not that manner of operation was “dangerous” will depend upon all the circumstances in which it took place, including time of day, the water conditions and the weather.
- Some conduct may be objectively dangerous no matter the circumstances
- here needs to have been a serious breach of proper management and control of the vessel such that a real danger is created.
The legislation also sets out that a person who is operating the vessel “under the influence of intoxicating liquor or of a drug” is deemed to be doing so in a “dangerous” fashion.
The use of the term “navigation” does not mean that the accused person much have been the “Navigator” of the vessel (as opposed to the “Captain”, or “First Mate”). The courts have defined navigation as including “driving, steering or helming” a vessel – although where different persons are undertaking different tasks, careful attention will need to be paid to this issue.
The legislation requires that have been an “impact” – in other words a collision – that occasions the death of a person.
The Courts have directed that, in order to “cause” a result, a defendant’s actions must have made a “substantial or significant contribution” to the person’s death. These terms are vague as there is no way to definitively set out what can constitute “occasioning”.
The relevant legislation includes a specific defence. It is a defence to the charge if the death was “not in any way attributable” to the intoxication of the operator or to the speed or manner in which the vessel was controlled.
In other words, if the vessel was being operated dangerously, there is a collision and someone dies as a result, a defendant can escape liability if the death was in no way a consequence of the dangerous operation.
The standard offence carries a penalty of 10 years imprisonment.
If the offence is committed “in circumstances of aggravation” the penalty rises to 14 years. Circumstances of aggravation include:
- Having a blood alcohol concentration above 0.05
- Exceeding the speed limit
- Being involved in a police pursuit, or
- Being “very substantially impaired” by alcohol or drugs
There have not yet been many prosecutions for this offence, so it is difficult to provide any firm guidance as to the likely penalties. Suffice to say that full-time imprisonment is very likely for persons convicted of this offence.
WHERE TO NEXT?
In NSW, traffic offences are treated seriously. Therefore, it is important to get competent legal advice as early as possible, whether you have received a penalty notice, had your licence suspended or been charged with a serious offence. Our lawyers are highly experienced and understand the difficulties you face without a licence. We can guide you through the process while dealing with the various authorities related to your matter.