(1) A person must not operate a motor vehicle on a road in such a manner as to cause the vehicle to undergo sustained loss of traction by one or more of the driving wheels (or, in the case of a motor cycle, the driving wheel) of the vehicle. Maximum penalty: 10 penalty units.
(2) A person must not:
(a) operate a motor vehicle contrary to subsection (1) knowing that any petrol, oil, diesel fuel or other inflammable liquid has been placed on the surface of the road beneath one or more tyres of the vehicle, or
(b) do, or omit to do, any other thing that prolongs, sustains, intensifies or increases loss of traction as referred to in subsection (1), or
(c) repeatedly operate a motor vehicle contrary to subsection (1), or
(d) operate a motor vehicle contrary to subsection (1) at a time, or on a road in a place, knowing that there is an appreciable risk that operation of the vehicle in that manner at that time and place is likely to interfere with the amenity of the locality or the peaceful enjoyment of any person in the locality or make the place unsafe for any person in the locality, or
(e) willingly participate in any group activity involving the operation of one or more vehicles contrary to subsection (1), or
(f) organise, promote or urge any person to participate in, or view, any group activity involving the operation of one or more vehicles contrary to subsection (1), or
(g) photograph or film a motor vehicle being operated contrary to subsection (1) for the purpose of organising or promoting the participation of persons in any such group activity.
Maximum penalty: 30 penalty units (in the case of a first offence) or 30 penalty units or imprisonment for 9 months or both (in the case of a second or subsequent offence).
(3) In any proceedings for an offence under subsection (1) or (2), it is a defence if the person charged satisfies the court that the vehicle, although operated as referred to in subsection (1), was not so operated deliberately.
(4)………………….
(5)………………….
(6) In considering whether an offence has been committed under subsection (2) (d), the court is to have regard to all the circumstances of the case, including the following:
(a) the nature and use of the road in which the offence is alleged to have been committed,
(b) the nature and use of any premises in the locality of the road in which the offence is alleged to have been committed.
(7) If a person is convicted by a court of an offence under subsection (2) (a), (b), (c) or (d) in relation to a motor vehicle –
(a) except as provided by paragraph (b) – the person is disqualified from holding a driver licence by the conviction and without any specific order of the court for 12 months, or
(b) if the court at the time of the conviction thinks fit to order a short or longer period of disqualification – the persons disqualified from the holding a driver licence for the period specified in the order.
(8)………………….
The common charge that we hear about now in the media is the term “Street Racing”. Generally it is two cars hightailing along some roadway at considerable speed, however, it is also common for drivers to be charged where high speed is absent, but in the opinion of the Police they are considered to be “racing”.
The Act has no definition for the word “race”. So what does the prosecution have to prove when dealing with a charge of street racing.
Section 115(1)(a) briefly states that a person must not take part in “any race between vehicles on a road”. So what does it mean to “take part in – any race between vehicles…”
There is a case which addresses this section, and it is the case of DPP v Belani [2005] NSWSC 1013, where Johnson J. addressed the meaning of the words “any race between vehicles” in s 40(1)(a), of the repealed Act and concluded –
[52] In my view, the words “take part in… any race between vehicles” in s 40(1) Safety and Traffic Management Act ought be given their ordinary meaning. I accept the submissions of the Director in this respect. The words are not confined expressly to persons taking part in organised or planned races. Nor does such a restricted construction arise by implication from the terms of s 40 viewed in its statutory context. In my opinion, s 40(1) can apply to an impromptu or unplanned race between vehicles of the type alleged to have occurred in this case.
[53] Even if it be the case (and I do not think it is) that the word “race” in s 40(1)(a) is open to two competing constructions, namely a narrow construction (a planned race only) or a broad construction (any race between vehicles), then a construction which confined the section to a planned race only would not promote the purpose or object underlying the section: s 33 Interpretation Act 1987. The learned Magistrate’s construction injects a significant level of uncertainly into the provision. What degree of planning is required before the race is a planned or organised race? The international motor racing event is a clear example. But what of less organised events? Where is the line to be drawn? In my opinion, this aspect points strongly in favour of the words “any race between vehicles” in s 40(1) being accorded their ordinary meaning. However, the learned judge didn’t deal with the meaning of “street racing” suffice to say that we just give it its “ordinary meaning”.
It is probably preferable to look to the various Parliamentary speeches. It seems that the over-riding concern expressed by the various members of Parliament was the element of “danger”, “intimidation” and what is commonly called “hoon” behaviour. The Supreme Court however, in Belani’s case doesn’t appear to address the meaning of the expression.
It is the opinion of the writer of this article, that two cars, side by side, accelerating and perhaps exceeding the speed limit, without more, is hardly sufficient to establish street racing. Of course if there is an agreement between the drivers to see who can outstrip the other then there is a clear race taking place. Generally however, it is rare that such confession will be obtained by police and the matter will ultimately have to be left to the court to decide on an objective view, whether the drivers were in fact “racing”.
In the normal course of events, there must be clear evidence that the subject vehicles are “racing”. Speed alone might not be sufficient. However, if there is a combined element of danger in the course of such driving, then a clear inference might be drawn that such vehicles are racing.
People who are subject to charges of “street racing” can have their vehicles impounded or their number plates removed and in the case of second time offenders, have the vehicle forfeited to the Crown. First time offenders can suffer the loss of their vehicle for a period of three months and in cases where a vehicle has been impounded, have to pay in excess of $1,000.00 storage and towing fees to have the vehicle released after the 3 month period.
The confiscation of the vehicle for a period of three months can have serious consequences for persons in respect of their employment, not to mention other difficulties which might be experienced for their family.
Second time offenders can have their cars forfeited to the Crown and used for crash testing. So remember… that short spurt for 3 or 4 seconds alongside another vehicle after setting off from a set of lights may prove very costly.
The aim of this harsh legislation of course is to curb “hoon” behaviour on our streets and perhaps in the long run, will produce positive results.
Impounding, number-plate confiscation or Forfeiture
Under s.249 of the Road Transport Act 2013, a court can reduce (no less than 5 days), a period of number-plate confiscation or impounding. It can also commute a forfeiture, (s.246) to a lesser period of impounding. However, in order to do this, a court must be satisfied that such sanction of the motor vehicle will cause extreme hardship to the offending operator or any other person.”
The extraordinary provisions title “Sanctions concerning vehicles” under Part 7.6 of the Road Transport Act 2013 should be noted. It states that difficulty in carrying out employment or getting to and from work or studies does “not constitute extreme hardship”.
This means, that in trying to convince a court that you will suffer extreme hardship if your vehicle is forfeited, number-plates confiscated or impounded… other convincing reasons must be explained.
Disqualification
Street Racing… There is an automatic disqualification period of 12 months, however the court can reduce or extend that period.
Burnout… For an offence under s.116(1) (sustained loss of traction) there is no stipulated disqualification period, however if you are charged under s116(2) “aggravated burnout” then there is an automatic disqualification of 12 months which can be varied.
