Street Racing

Proctor & Associates are experienced traffic lawyers and will advise you on the best course of action in order to obtain the best possible result for you.

  Should you find yourself facing street racing or “hoon driving” charges, or any other offences, contact us immediately and organise an appointment.

Street Racing Lawyer Sydney

Article by Peter C Proctor LL.B.
Proctor & Associates

The offence which we commonly refer to now as Street Racing, was originally introduced to the State Parliament by way of private members Bill, courtesy Peter Debnam, State Member for Vaucluse.

In introducing the Traffic Amendment (Street Racing) Bill on 14 November 1996, Mr Debnam expressed its purpose as follows…

The purpose of this bill is straightforward. It will deter drivers from engaging in practices such as street racing, burnouts and doughnuts. These practices, commonly referred to simply as street racing, are dangerous for drivers, passengers and onlookers and intimidate local communities“.

The member for Vaucluse further commented upon the displeasure of the community at the way hoons show “apparent contempt for society and authorities, a willingness to incite trouble in the streets and… are under considerable stress – as are the driver’s skills – as a young driver pushes the engine and gearbox to perform outside their design limits.”

He continued……..

The practice of street racing and the use of motor vehicles generally to intimidate the community have become infamous over the past 25 years and are discussed in length in a paper that I suggest honourable members read, Victorian Police Bulletin No. 5/95, which details the Victorian experience. In New South Wales we have a frustrating history similar to that of Victoria – convoys of carloads of young men seeking trouble, coordinated by mobile phones and driven by testosterone and a total lack of respect for the community and authorities.

The Private Member’s Bill was taken up by the Government and re-introduced into the Parliament two weeks later on 27 November, 1996 under a revised name Traffic Amendment (Street and Illegal Drag Racing) Bill. It was read a second time by the Hon. J Shaw (Attorney General) on 5 December 1996 in the Legislative Council and various members spoke in support of the Bill, the flavour of the topic being controlling “hoons” who terrorise the public in the way they drive cars… organized groups, street racing and doing burnouts.

The Attorney General had this to say in part of his speech:

In some parts of the State unlawful and extremely dangerous practices are engaged in by drivers of motor vehicles, often in large groups. These practices include illegal racing on public streets, burnouts, doughnuts and other dangerous practices which put at risk the lives of those undertaking them, spectators and, most importantly, other members of the public using those streets

One of the important features of this proposed legislation was to empower Police and the Courts to confiscate the subject motor vehicles and send a clear message to potential offenders.

The Bill was ultimately passed and inserted into the now repealed Traffic Act 1909. (ss. 4BA… 4BC). On 18th June, 1997, the sunset provisions were overridden in the Legislative Council. It is now entrenched legislation… here to stay.

The same provisions, (with various later amendments), form part of ss.40 & 41 of the Road Transport (Safety and Traffic Management) Act 1999, portions of which are set out below:

40 Races, attempts on speed records and other speed trials

(1) A person must not organise, promote or take part in:
(a) any race between vehicles on a road or road related area, or
(b) any attempt to break any vehicle speed record on a road or road related area, or
(c) any trial of the speed of a vehicle on a road or road related area, or
(d) any competitive trial designed to test the skill of any vehicle driver or the reliability or mechanical condition of any vehicle on a road or road related area,
unless the written approval of the Commissioner of Police to the holding or making of the race, attempt or trial has been obtained.
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).

(2)…………….
(3)…………….

(4) If a person is convicted by a court of an offence under this section in relation to a motor vehicle or trailer:
(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 a court for 12 months, or
(b) if the court at the time of the conviction thinks fit to order a shorter or a longer period of disqualification-the person is disqualified from holding a driver licence for the period specified in the order.

(5)……………..
(6)……………..

41 Conduct associated with road and drag racing and other activities

(1) A person must not, on a road or road related area, operate a motor vehicle 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 or road related area 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 or road related area 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 or road related area in which the offence is alleged to have been committed,
(b) the nature and use of any premises in the locality of the road or road related area in which the offence is alleged to have been committed.

(7) A person who is convicted by a court of an offence under subsection (2) (a), (b), (c) or (d) in relation to a motor vehicle is disqualified from holding a driver licence by the conviction and without any specific order of the court for 12 months.

(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 40(1)(a) briefly states that a person must not take part in “any race between vehicles on a road or road related area”. So what does it mean to “take part in – any race between vehicles…”

There is only one case at present 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), 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 clamped 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, Clamping or Forfeiture

Under s.219(5) of the Road Transport (General) Act 2005, a court can reduce or dispense with, a period of clamping or impounding. It can also commute a forfeiture, to a period of clamping or impounding. However, in order to do this, a court must be satisfied that “the clamping or impounding of the motor vehicle will cause extreme hardship to the offending operator or any other person.”

The extraordinary provision under s.219(6), 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, clamped 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.41(1) (sustained loss of traction) there is no stipulated disqualification period, however if you are charged under s.41(2) “aggravated burnout” then there is an automatic disqualification of 12 months.

Any opinions expressed by the writer in this article are not provided as legal advice but simply an opinion in respect of the law as it stands as at this date. It is provided as assistance only and should not be interpreted as being legal advice for any particular case. Readers should contact their own lawyer and obtain individual legal advice for their particular case.

Should you find yourself facing street racing or “hoon” charges, or any other offences, contact us immediately and organise an appointment

Comments are closed