Criminal Law and Procedure: Charges, Punishments, and Reasoning

This article discusses the charges, punishments, and reasoning related to criminal law and procedure, with a focus on a case study. It covers sections of The Road Transport Act 2013, The Transport Operations Act 1995, The Road Transport (Alcohol and Drugs) Act 1997, The Crimes (Sentencing Procedure) Act 1999, and Crimes Act 1900.

Criminal Law and
Procedure

Table of Contents
Letter of Advice...............................................................................................................................3
Charges............................................................................................................................................3
Punishments.....................................................................................................................................4
Reasoning.........................................................................................................................................5
Second Document............................................................................................................................6
REFERENCES................................................................................................................................9

Letter of Advice
Charges
The charges which will applicable in this case study are:-
1. Section 117 of the Road Transport Act 2013, talks about Negligent, Furious and Reckless
Driving.
2. Section 117 (1) (a) of the Road Transport Act 2013, contains the negligent act cause
Death. The prosecution have to prove on reasonable doubt that, the person drives a motor
vehicle, the person drives that vehicle negligently and as the result it cause death to
another person1.
3. Section 117 (1) (c) of the Road Transport Act 2013, talks about negligent driving.
The burden of proof is on prosecution and they have to prove it beyond reasonable doubt
that : the person drives the motor vehicle and that person drives it negligently.
4. Section 79 of The Transport Operations Act 1995, it is mentioned that any person under
the influence of liquor or a drug drives a motor vehicle or attempts to put a motor vehicle
in motion or is in charge of a motor vehicle is being guilty of an offence and liable for
penalty.
5. Section 78 of The Transport Operations Act 1995, it is mentioned that a person should
not drive motor vehicle on a road until and unless that person hold a driver licence which
authorises to drive a vehicle on the road.
6. Section 19 of The Road Transport (Alcohol and Drugs) Act 1997, mention that a person
drives motor vehicle with a concentration of alcohol in blood and breath which is more
than 0.05g per 100mL of blood, if he is a special driver; or, if a person other than special
1 "AUSTRALIA: CRIMINAL PROCEDURE" (2020) 33(2)

driver, which concentrates of alcohol in a persons body or breath is more than 0.1g per
100mL or 210L of breath.
7. Section 5 of The Crimes (Sentencing Procedure) Act 1999, the court will impose Home
Detention when there is no appropriate penalty for that offence.
8. Section 18 of Crimes Act 1900, deals with the provisions of Murder and Manslaughter,
the murder is committed when the act of accused, or any thing by him or her omitted to
done, causing death, this is been omitted with indifference to the human life, or attempts
to done, during or immediately after the commission2.
Punishments
1. Under section 117 of The Road Transport Act 2013, If a person is driving and commits
death then 30 penalty units or the imprisonment of 18 months or both, if the offence is
done subsequently the the penalty of 50 units or 2 years of imprisonment will be
imposed.
If it cause grievous injury to body then 20 unit of penalty and imprisonment of 9 month or both,
or 30 units of penalty or imprisonment of 12 month or both will be imposed.
2. Under section 117 (1) (a) of The Road Transport Act 2013 the maximum punishment is
of 18 month of imprisonment, Automatic disqualification of licence for 3 years and the
court can reduce this by 12 months, and fine of $3,300 will imposed.
3. Under section 117 (1) (c) of The Road Transport Act 2013 caries 3 demerit points and
fine of maximum $ 1,100 will be imposed.
4. Under section 79 The Transport Operations Act 1995 the maximum penalty is given as
60 penalty unit or imprisonment for 18 months.
5. Under section 78 of The Transport Operations Act 1995 the maximum penalty will be be
given is 60 units of penalty or imprisonment for 18 months.
6. Under section 19 of The Road Transport (Alcohol and Drugs) Act 1997, mentioned
penalty under section 26 of this act if the person who is not a special driver then for the
first offenders the maximum penalty is 15 units of penalties or 9 month of imprisonment
or both and for repeat offenders the penalty is 20 units of penalty or 12 months of
imprisonment or both.
2 "AUSTRALIA: CRIMINAL PROCEDURE" (2020) 33(2)

7. Under section 18 of Crimes act the penalty of murder is given and this crime is
punishable for life imprisonment or for 25 years.
Reasoning
1. The act was of grievous nature and Mondo Smith was driving his car in very rashly, he
was driving the car at narrow road in speed of 126 km ph. This covers under section 117
of The Road Transport Act 2013.
2. Mondo Smith drove his car so rashly that it causes death of a person and the act of Smith
can also cause harm to anyone else. Whoever comes in his way, he threw beer can on
Marlboro's side mirror. This covers under section 117 (1) (a) of The Road Transport Act
20133.
3. The act was so harsh that the doors of car did not open, Mondo Smith came out of car
threw window and Jai is so much injured that he can not even move out of car. This is
covered under section 117 (1) (c) of The Road Transport Act 2013.
4. Any motor vehicle which is being driven in the influence of alcohol is an offence and
Smith was so much drunk. This is covered under section 79 of The Transports Operations
Act 1995.
5. Mondo Smith do not have licence also and he is driving car without a licence. This is
covered under section 78 of The Transports Operations Act 1995.
6. The reading of alcohol in the blood of Mondo Smith is 0.18 gm per 100 mL of blood
which is sufficient to held him liable for drink and drive. This is covered under section 19
of The Road Transport (Alcohol and Drug) Act 1997.
7. For previous offences Mondo Smith was under house arrest, but he escapes from there
and did another rash act. This is covered under section 5 of The Crimes (Sentencing
Procedure) Act 1999.
3 "Review Of Commonwealth Criminal Law Brisbane, Australia April 2?5, 1991" (2021)
2(3)

8. Mondo Smith after escaping from car lights his cigarette and threw in on ground, the
petrol is also leaking from the car and Jai is in the car but he blew up the car. This covers
under section 18 of Crimes Act.
Second Document
The Road Transport Act of 2013
It is one of the primary legislation of the country which entails provisions regarding the negligent
acts of the drivers. The primary aim behind the enactment of this Acts is to consolidated all the
underlying provisions in one place with respect to the road transport, road users as well as the
enhancement of the safety rules in the concerned jurisdiction. The other objective of the Act is to
ensure a effective driver licensing system which is based on the uniform approach for driver
licensing4. Also, as a part of uniform national approach to formulate the vehicle registration
safety system. Further the reduction in the overall costs of the administration of road transport as
well as the enhancement of safety and other aspects are the other primary objectives of the Act.
As per general reasoning , it is believed that the person who has attained the license, possess all
the required knowledge with respect to the rules of road. Every driver has the duty of care
towards the other people driving or the person who are using the road. They are required to
ensure some primary standard of care which any prudent or reasonable driver would exercise in
the same situation. Therefore, because of the same reasoning there lie the question that whether
any individual who deviates from this duty of standard of care, can be subjected to charge for the
offences related to the road offences. In Australia, and that too mainly in New South Wales, if
any individual drives in such a manner exceeding a specified pace or speed and resulting in
causing danger to the other road users is said to committed an offence. Further in more simple
terms if a person drives their vehicle in a reckless or negligent manner while exceeding the
4 Koulish, Robert, "Using Risk To Assess The Legal Violence Of Mandatory Detention"
(2016) 5(3) Laws

normal speed or in any other such way which places the road users at a substantial risk is said to
have committed an road offence under Road Transport Act of 2013.
Furthermore, section 117 of the Act, specifies the conduct on which the drivers must drive their
vehicles5. This section criminalises the said conduct for the purpose of alleviating the risk which
is placed on the road users. The section specifies that one must must not drive their vehicle in a
negligent way. Also one must not drive their vehicle in on road in furious and reckless manner or
at any such speed which may harm the general public using the road. In order to charge any drive
under this section it is required on the part of claimant to establish two facts that the defendant is
the one who was driving the vehicle and the other is that the act of driving was carried out in the
manner which falls below the reasonable standard of care which any prudent driver is required to
carry. Similarly for the given case scenario, smith also falls under the ambit of this section as he
was driving the car in a negligent and rash manner which was same witnessed by the Malboro,
the truck driver who was driving on the same road. Also the speed of the car which was
126Kmph which is more than than that of the usual speed can be used as the evidence for his
negligent act of driving6.
Moreover, as per clause 1 of the section the person is subjected to the various penalties if one is
charged for such conduct. It states that the if the act of driving result in death then in such cases
the maximum penalty comprise of 18 months imprisonment and the penalty of 30 units or both.
Further if the act of driving results in grievous bodily injuries or harm then there lie the
imprisonment of 9 month or the penalty of 50 units or both.
Transport Operations (Road Use Management) Act 1995
The acts of drink and driving or driving under the influence the alcohol or the driving whilst
drunk all falls in the same category of offense. In simple terms it elucidates the fact that person
possess certain alcohol content in their body which further made an effect on their driving. In
Australia the consequences of drink and driving offences varies from state to state. Generally for
the purpose of ascertaining the penalty for the said offences there lies four major alcohol limits
5 Martin, T. C., "Australian Road Track Cost Recovery: Some Recent Findings" (2017)
17(3) Transport Reviews
6 Ragg, Mark, "Australia: Detention Of Sociopaths" (2019) 340(8811) The Lancet

which are the very first being the no alcohol limit where blood alcohol concentration comprises
of 0.00. the other being the general; alcohol limit where alcohol concentration lies in the ratio of
0.05 to 0.09. Third being the middle alcohol limit comprise of ration of 0.10 to 0.149. The last is
the high alcohol limit where the ratio of the alcohol in blood concentrates more than that of the
0.15. Moreover, the Act of Transport Operation of 1995 is one major legislation of the country
which entails penalties regarding the drink and driving offences. As per the act, any person who
found with the blood alcohol concentration of 0.10 or more will be made subjected to the
suspension of their licence for the period of 24 hours. High punishments are applied for the
individuals who are being proved for more than 0.10 blood alcohol concentration. All offences
attract fines of increasing severity and some will have prison sentences as well. Accordingly for
the given case as well, the smith can be charged for the offence under this Act as in the reports it
was discovered that he was consuming certain specified amount of alcohol as was driving the car
.
Home Detention
This is one of the fundamental principle of sentencing to an offender that it should be sentenced
for imprisonment at last resort. The home detention can also be imposed in order to full time
imprisonment in jail. The home detention will be imposed for 18 months or less. If The court
will satisfied from the terms of imprisonment and no other sentence is there in order to
imprisonment, then the court will consider to order the sentence of home detention. They will
take into consideration that the criminal records of the offender are of likely hood of re
offending and this order can put someone at the risk of harm. There are many offences for which
home detention is not available, this includes murder, manslaughter, domestic violence, and this
is also not available for the offender who have criminal history of these offences. The offender
who has been given home detention were being supervised and subjected through electronic
monitoring7. They are not allowed to leave there home except for there essential activities such
as education and employment. They must be restricted on strict condition, the condition includes
the arrangement made for the employment of the offender. The offender were monitored through
7 Rye, Tom, "The True Costs Of Road Transport" (1997) 5(2) Journal of Transport
Geography

GPS technology. If someone breaches the home detention, then the Parole Authority will revoke
the Home detention order if the offender will fails to maintain the condition of order or they fails
to appear before the Parole Authority or if the offender will apply for revocation of order or if the
person with whom the offender is residing consent to discontinue the order.
Crimes Act 1900
Murder is the most serious offence in the Australian Law and it is defined as unlawful killing is
being done with the intention to kill or doing any grievous bodily injury to another person.
Mondo Smith knows that Jai is inside the car and injured, the door of car were not in the
condition to open and Jai can not move due to injury. Mondo Smith came out through window of
the car and light up the cigarette, Marlboro was yelling at him for not to light the cigarette
because the petrol is leaking from the car and it quickly caught fire. Mondo Smith was in the
senses that he could know the fact that the fire will make heat up on the car8. This act show in
postmortem report that Jai was grievously hurt and burned with the car. Marlboro tries to save
him and ran to get Mondo away from the car but he could do nothing to save him. The act done
by Mondo have all the intention and act is such that can kill anyone. This falls under the
definition of murder, there is all the condition to murder are being fulfilled. The intention for
killing is there, it will cause serious bodily injury.
REFERENCES
"AUSTRALIA: CRIMINAL PROCEDURE" (2020) 33(2)
8 Stubbs, Matthew T, "Arbitrary Detention In Australia: Detention Of Unlawful Non-
Citizens Under The Migration Act 1958 (Cth)" (2022) 25 Australian Year Book of
International Law

"Review Of Commonwealth Criminal Law Brisbane, Australia April 2?5, 1991" (2021) 2(3)
Koulish, Robert, "Using Risk To Assess The Legal Violence Of Mandatory Detention" (2016)
5(3) Laws
Martin, T. C., "Australian Road Track Cost Recovery: Some Recent Findings" (2017)
17(3) Transport Reviews
Ragg, Mark, "Australia: Detention Of Sociopaths" (2019) 340(8811) The Lancet
Rye, Tom, "The True Costs Of Road Transport" (1997) 5(2) Journal of Transport Geography
Stubbs, Matthew T, "Arbitrary Detention In Australia: Detention Of Unlawful Non-Citizens
Under The Migration Act 1958 (Cth)" (2022) 25 Australian Year Book of International
Law