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Reckless Conduct Endangering Life

Reckless Conduct Endangering Life

In Victoria, the offence of Reckless Conduct Endangering Life is in section 22 of the Crimes Act 1958 Vic and is dangerous conduct which places others at risk of death.

Has the Police accused you of Reckless Conduct Endangering Life? Call our firm to make a time to speak with one of our experienced lawyers to receive confidential legal advice.
 
Reckless Conduct Endangering Life
Our criminal lawyers have helped many people charged with Reckless Conduct Endangering Life.

Police interview
Anything you tell the Police during an interview can be used against you. Therefore, it is important that you receive legal advice before speaking with Police. We can advise you about what should be said during a Police interview. You may want to know – should I make a statement to Police? Should I attend a Police interview? Will the Police leave me alone if I explain my side of the story? Will I be remanded?

If the Police want to speak with you about an allegation of Reckless Conduct Endangering Life, speak with one of our experienced lawyers first. This will protect you from saying something which prevents you from running a defence in Court.

Our lawyers can also attend the Police station with you if you feel more comfortable having someone on your side.

Pleading not guilty
We can help you by creating a case strategy for you. We have in-house counsel who run our trials who can get involved from the beginning if you are accused of Reckless Conduct Endangering Life. The advantage of this is that you have two lawyers working on your case.

In a case like this, our lawyers will ask the Police – Is there relevant CCTV footage? Are there people who the Police have not spoken to who can shed some light on this case? Is there exonerating evidence which needs to be preserved?

The answer to these questions can lead to a charge of Reckless Conduct Endangering Life being withdrawn before the hearing or an acquittal.

Preparing a defence strategy early with in-house cousnel will increase the chances of this charge being withdrawn or leading to an acquittal.

Pleading guilty
If you are pleading guilty to Reckless Conduct Endangering Life, we can also advise you how to prepare your plea to get the possible outcome in Court. We will help you to arrange reports and documents that will help avoid a lengthy gaol sentence. Call us and discuss how to get the best result.
 
Jurisdictional limits
More often than not there are related accompanying charges on a brief of reckless conduct endangering life depending on the circumstances of the incident the police allege. The seriousness of the offending will determine which jurisdiction will hear the case. It is however the type of offence that is generally heard in the Magistrates’ Court.
 
The Elements: Reckless Conduct Endangering Life
  • The accused engaged in conduct;
  • The accused’s conduct was voluntary;
  • The accused’s conduct endangered another person’s life;
  • The accused acted recklessly; and
  • The accused acted without lawful authority or excuse.
The test here is whether a reasonable person in the same shoes of the accused would have realised that his or her conduct placed, or may have placed, another person in danger of death.1 The Prosecution need not prove that a person was actually in danger but, that the accused’s conduct had the potential to place a person in danger of death.2

When we speak of placing a person in danger of death, it must be a real risk – this means more than a remote or mere possibility, even if the risk may not materialise.

In terms of recklessness, the threshold to establish recklessness is quite high in the sense that the accused will not have acted recklessly simply because he or she ought to have known, or thought it was possible, that their conduct would create an appreciable risk of death.3

The element requires the accused to have foreseen that his or her conduct would probably create an appreciable risk of death.4 The accused’s state of mind must be assessed at the time the conduct was committed. It is not sufficient for the prosecution to prove that the accused later realised that his or her conduct was dangerous.5

Finally, the prosecution must disprove any defences that are raised on the evidence.


[1]Crimes Act 1958 s22; R v Nuri [1990] VR 641; R v Holzer [1968] VR 481.
[2]R v Abdul-Rasool [2008] VSCA 13.
[3]R v Nuri [1990] VR 641.
[4]R v Toms [2006] VSCA 101; R v Lam [2006] VSCA 162.
[5]R v Wilson [2005] VSCA 78.

 
Possible Defences to Reckless Conduct Endangering Life
Often the defence to this charge can be that there is a factual dispute as to what level of danger were the people placed in by the conduct.

Aside from general defences which may apply such as mistaken identity, the offence of reckless conduct endangering life can raise complex legal issues in relation to the intention of the accused. Lack of intent can be a defence to this charge if the Prosecution does not provide adequate evidence that the accused had the requisite intention at the time to constitute their state of mind as “reckless” – possible versus probable divide.

Other defences such as factual dispute, duress, wrongful identification, self-defence, mental impairment, honest and reasonable mistake or belief, and necessity may also apply.

In a trial, the questions a judge will ask the jury to consider are:

  1. Did the accused commit the conduct alleged in the presentment?
    If yes, then go to 2.
    If no, then the accused is not guilty of reckless conduct endangering life.
  2. Did the accused voluntarily commit that conduct?
    If yes, then go to 3.1.
    If no, then the accused is not guilty of reckless conduct endangering life.
  3. Did the accused’s conduct endanger another person’s life?
    • 3.1 Would a reasonable person who committed the same conduct as the accused, in the same circumstances, have realised that s/he was placing another person at an appreciable risk of death?
      (Consider – There must be more than a remote risk of death)
      If yes, then go to 4.1.
      If no, then go to 3.2.
    • 3.2 Would a reasonable person who committed the same conduct as the accused, in the same circumstances, have realised that s/he may have been placing another person at an appreciable risk of death?
      If yes, then go to 4.1.
      If no, then the accused is not guilty of reckless conduct endangering life.
  4. Did the accused act recklessly?
    • 4.1 At the time the accused committed the relevant conduct, did s/he foresee that an appreciable risk of death was a probable consequence of his/her actions?
      (Consider – The risk must have been probable rather than possible)
      (Consider – The accused does not need to have foreseen that his conduct would probably cause death. S/he must have foreseen that his/her actions would probably create an appreciable risk of death)
      If yes, then go to 5.
      If no, then the accused is not guilty of reckless conduct endangering life.
  5. Did the accused act without lawful authority or excuse?
    If yes, then the accused is guilty of reckless conduct endangering life (as long as you have also answered Yes to questions 1, 2, 3.1 or 3.2, and 4.1).
    If no, then the accused is not guilty of reckless conduct endangering life.

Reckless conduct endangering life (s22 of the Crimes Act 1958) is an indictable offence that carries a significant penalty. The offence carries a 10 year term of imprisonment as the highest possible sentence.

Sentencing in the higher courts
A total of 53 cases (146 charges) of Reckless Conduct Endangering Life were heard in Victorian higher courts between 1 July 2011 and 30 June 2016. The majority of these cases (76.7%) resulted in imprisonment. Other sentences imposed included:

  • Community Correction Order – 7.6%
  • Partially Suspended Sentence – 5.7%
  • Wholly Suspended Sentence – 3.8%
  • Youth Justice Centre Order – 3.8%
  • Community-Based Order – 3.8%
  • Adjourned Undertaking/Discharge/Dismissal – 1.9%
  • Others – 1.9%
The longest term of imprisonment imposed was between 6 and 7 years (5.3% of cases). The majority of prison sentences were between 3 and 4 years (29% of cases).6

Please note that suspended sentences were abolished in Victorian higher courts for all offences committed on or after 1 September 2013. Offences committed after this date will not have suspended sentences available as a sentencing option.7

Sentencing in the Magistrates’ Courts
In the Magistrates’ Court, 375 cases (434 charges) of Reckless Conduct Endangering Life were heard between 1 July 2013 and 30 June 2016. Most case resulted in Imprisonment (45.6%) and Community Correction Orders (CCO) (32.3%). Other penalties included:

  • Fine – 7.5%
  • Wholly Suspended Sentence – 5.6%
  • Adjourned Undertaking/Discharge/Dismissal – 3.5%
  • Partially Suspended Sentence – 2.1%
  • Youth Justice Centre Order – 2.1%
  • Others – 1.3%
171 cases resulted in a prison term. Most of these prison sentences were between 6 and 12 months (23.4% of cases). The highest prison term imposed was 36+ months (2.9% of cases).

The majority of the charges that resulted in a CCO fell under the “12 < 18 months” category (55.9%, non-aggregate). The highest CCO term imposed was more than 24 months (7.6% of cases (non-aggregate)).8

Please note that suspended sentences were abolished in the Magistrates’ Court for all offences committed on or after 1 September 2014.9


[6] Sentencing Advisory Council. “SACStat Higher Courts – Crimes Act 1958 (Vic): s 22 – reckless conduct endangering life.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_6231_22.html (accessed February 18, 2019).
[7] Sentencing Advisory Council. “Suspended Sentence.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence (accessed February 18, 2019).
[8] Sentencing Advisory Council. “SAC Statistics – Crimes Act 1958 (Vic): s 22 – reckless conduct endanger life.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_22.html (accessed February 18, 2019).
[9] Sentencing Advisory Council. “Suspended Sentence.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence (accessed February 18, 2019).