Fail to Stop and Remain at an Accident. An Overview of this Victorian Traffic Offence

Updated: Sep 6

The law imposes certain civic duties upon us all in circumstances where a motor vehicle accident occurs. Failure to discharge these duties can result in significant penalties.


In this article we discuss, the elements, penalties, and sentencing outcomes for offences that include Leaving the Scene of an Accident, and other offences under Section 61 of the Road Safety Act 1986 (Vic).


Overview of Offences Under Section 61


There are several possible offences under Section 61 relating to failure to comply with several duties a motorist has following an accident:

Fail to stop and remain at the scene of an accident (Section 61(a) of the Road Safety Act 1986 (Vic).

  1. Fail to render assistance at the scene of an accident (Section 61(b) of the Road Safety Act 1986 (Vic).

  2. Fail to give name and address and details of the owner of the motor vehicle and identifying details of the motor vehicle (Section 61(c) of the Road Safety Act 1986 (Vic).

  3. Fail to report accident to police and provide details (name and address, owner of motor vehicle, identification details of motor vehicle) (Section 61(d) of the Road Safety Act 1986 (Vic).

For the detail of each offence refer to Section 61 (see link above).


It is also common for any of the above offence to feature with other traffic offences such as dangerous driving, or careless driving.


It is important to note that it is common for the police to charge a person for more than one breach of duty referred to in Section 61. Usually however one breach will encapsulate the criminality of the incident.


Elements of each offence


Fail to Stop and Remain at the Scene of An Accident


The prosecution must prove beyond reasonable doubt the following:


1. The accused was the driver of a motor vehicle.

2. The driver was involved in a motor vehicle accident.

3. A person was injured, or property damaged because of that accident.

4. The driver failed to stop his or her motor vehicle; AND

5. The driver failed to remain at the scene of the accident.


Fail to Render Assistance at the Scene of Accident


The prosecution must prove beyond reasonable doubt the following:


1. The accused was the driver of a motor vehicle.

2. The driver was involved in a motor vehicle accident.

3. A person was injured, or property damaged because of that accident; AND

4. He or she failed to render assistance


Fail To Leave Name and Address at Scene of Accident


1. The accused was the driver of a motor vehicle.

2. The driver was involved in a motor vehicle accident.

3. A person was injured, or property damaged because of that accident; AND

4. He or she fails to leave their name, identifying details of the car, or owner of the car with the other party whom their injured or damaged property


Fail To Report Accident to Police As Soon As Possible After Accident


1. The accused was the driver of a motor vehicle.

2. The driver was involved in a motor vehicle accident.

3. A person was injured, or property damaged because of that accident; AND

4. He or she fails to leave their name, identifying details of the car, or owner of the car with the other party whom their injured or damaged property to a police officer present (Section 61(d)) or if no police officer present must provide full particulars of the accident to a police officer at the nearest police station to the scene of the accident (Section 61(e)).


Penalties For Offences Under Section 61


The main feature that will aggravate a penalty under Section 61 is the extent of injury suffered by any person involved in the accident.


Whilst Section 61 provides for a summary offence where no injury is caused to another person, the offences under Section 61 are indictable where a person is serious injured or killed because of the accident.


Serious Injury or Death - Section 61(3) of the Road Safety Act 1958 (Vic)


- where the other person suffers serious injury or is killed, and the accused does not comply with the requirement set out under Section 61(1)(a) or s. 61(1)(b); AND

- the driver responsible for the accident ought to have known that an accident had occurred, and a person seriously injured or killed - a maximum of 10 years imprisonment or a fine of 1200 penalty units.


A 'serious injury' is defined under the Act as having the same meaning as under the Crimes Act 1958 (Vic), namely:


"An injury (including the cumulative effect of more than one injury) that:

(i) endangers life; or

(ii) is substantial and protracted


Where a serious injury or death has resulted because of an accident and a driver fails to comply with Section 61(c),(d), or (e), a maximum of 8 months imprisonment or a fine of 80 penalty units apply. An increased penalty of 24 months or 240 penalty units applies for a subsequent offence under Section 61(4(a).


No Serious Injury or Death - Sections 61, subsections (4)&(5)


If a person is injured but the injury not 'serious' for the purposes of Section 61, a reduced penalty of 8 months or 80 penalty units may apply (Section 61(4(b), or in circumstances of reduced severity, a maximum penalty of 14 days imprisonment or 5 penalty units applies (Section 61(5).


Mandatory license disqualifications depending upon severity of offence


Serious Injury or Death (Section 61(6)


Upon conviction or a finding of guilty a person found guilty of any offence under Section 61 that results in a person suffering serious injury or death because of a motor vehicle accident a mandatory disqualification for 2 years applies for a first offence, and 4 years disqualification for a subsequent offence.


Discretionary suspension in other cases


In cases where a serious injury or fatality is not a feature of an offence under section 61, the sentencing Court retains a discretion under section 28 of the Road Safety Act 1958 (Vic) to order a period of suspension if the circumstances warrant such action.


Defences


Defending an allegation of offence under section 61 may turn upon:


- Factual dispute as to the alleged facts.

- Honest reasonable mistake of fact

- Dispute as to whether an alleged injury meets definition of 'serious injury'

- Necessity


Sentencing Outcomes


Where the feature of an offence under s. 61 involves the fatality of another because of an accident, the indictable offence referred to under Section 61, subsections (a) and (b) will be heard in the County Court, and typically a term of imprisonment to be served will be imposed.


At the opposite end of the scale, a minor accident in a supermarket carpark could also give rise to an offence under section 61, and in such circumstances a diversion may be possible.


As a general guide to the sentencing outcome for offences under s. 61 of the Road Safety Act 1986 (Vic), the Sentencing Advisory Council has published the following outcomes for the period 1 July 2016 - 30 June 2019:


Section 61(a) Fail to stop motor vehicle after an accident:


Imprisonment - 17.0%

Community Correction Order - 14.2%

Fine - 53.8%

Adjourned undertaking/discharge/dismissal - 13.2%


Section 61(b) Fail to render assistance after accident


Imprisonment - 28.4%

Community Correction Order - 18.7%

Fine - 38.5%

Adjourned undertaking/discharge/dismissal - 11.3%


Section 61(c) Fail to provide vehicle id no., name, or address details after accident


Imprisonment - 14.3%

Community Correction Order - 13.1%

Fine - 54.1%

Adjourned undertaking/discharge/dismissal - 17.7%


Section 61(d) Fail to give name and address details to police after accident


Imprisonment - 19.4%

Community Correction Order - 8.3%

Fine - 61.1%

Adjourned undertaking/discharge/dismissal - 9.7%


Section 61(e) Fail to report accident to police when person injured


Imprisonment - 22.9%

Community Correction Order - 17.0%

Fine - 45.8%

Adjourned undertaking/discharge/dismissal - 13.6%


Whilst this data may provide a general idea on sentencing outcome, it is also worth noting that sentencing is an inherently complex process. The Court will also take factors relevant to an accused into account including whether there is any relevant criminal history. Part of the sentencing process is whether a conviction should or should not be recorded. For information regarding the matters a Court will take into account in regard to the issue of the recording of a conviction refer to our article.


Get advice, prepare early

Early preparation is key to good outcomes. If you are facing an allegation of failing to remain at the scene of an accident, or any other offence described in this article call our office to receive expert advice. At an obligation free case assessment, you will receive advice about how you might prosecute a defence or take steps to lessen the impact of any of the penalties described above.

Contact us by phone on 03 9668 7600 or submit an email submission.







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