By Jimmy Singh and Tayla Regan

There are a range of driving offences that deal with the circumstance where death results from driving a car. The law gives different penalties for each of those range of driving offences.

Is it fair for the prosecution to charge you for manslaughter (from a dangerous and unlawful act) as a result of your driving, while another person who drove in the same way is faced with a lesser serious offence of driving causing death, attracting a lesser maximum penalty?

This is what happened in the case of Mr. Robert Borkowski.

The case of R v Robert Borkowski [2009] NSWCCA 102

On a Sunday evening, Mr. and Mrs. Howle, a couple in their 70s, were driving on the Great Western Highway in St Mary’s.

After stopping at a set of traffic lights, Mrs. Howle who was the driver at the time, began to make a right hand turn.

While in the process of turning right, a car being driven by Mr. Borkowski, was coming from the opposite direction at approximately 120km/h when it collided into the car driven by Mrs. Howle.

A bystander to the collision described the collision between the cars as ‘an explosion’.

At the time Mr. Borkowski was racing two other cars along the Great Western Highway. The drivers of the other cars were also charged, and known as the co-offenders.

The street race took place for about 5 kilometres in a 60km/h zone.

Witnesses described Mr. Borkowski, and the co-offenders, to be weaving in and out of traffic, taking off at high speeds from traffic lights along the way.

As a result of the accident, Mr. Howle was thrown from his vehicle and died instantly.

Mrs. Howle suffered serious injuries and died at the scene.

Mr. Borkowski’s car spun 180 degrees and collided with a co-offender’s vehicle.

After being taken to hospital and being treated with minor injuries, Mr Borkowski’s blood sample was taken.

The Doctor estimated that Mr Borkowski’s blood alcohol level at the time of the driving would have been approximately 0.063 (at the low-range drink driving level). There was also a presence of the residue of cannabis and methylamphetamine in his system.

The Court Outcome

Mr. Borkowski was charged with two counts of manslaughter and entered a plea of Guilty to both.

Mr. Borkowski’s traffic record included two previous offences of low range drink driving, one mid-range drink driving, driving whilst disqualified, disobeying traffic lights, and making an unlawful u-turn.

Mr. Borkowski was sentenced to a total of 9 years imprisonment with a minimum period of 6 years in custody (non-parole period) as a result of his driving causing the death of the elderly couple.

There is a large range of offending conduct that can fall within the scope of manslaughter. The Court here held that, in the case of manslaughter from driving causing death, the court should take into account the structure of offences relating to driving causing death which carry much more lighter maximum penalties.

Here, just because Mr. Borkowski pleaded guilty to, and sentenced for manslaughter for driving a car causing death, doesn’t mean that his punishment should be more than the maximum for the lesser serious offences of causing death from driving. Although can be seen to cause distraction in the sentencing process.

Had Mr. Borkowski not entered the plea of guilty to manslaughter, perhaps the charge would have been downgraded to a lesser serious offence of driving causing death. This can occur, and has successfully occurred in the past, by negotiations with the prosecution.

Alternatively, had he not have pleaded guilty to the manslaughter charge, if it proceeded to trial, he could have been convicted of the lesser serious offences of driving causing death.

Section 52AA(4) Crimes Act (NSW) allows the Jury to return a verdict of guilty of the lesser serious offence of dangerous driving causing death attracting a much lower maximum penalty.

Types of Charges for Driving Causing Death

The Court in Mr. Borkowski’s case on the appeal acknowledged, that the prosecution who charged Mr. Borkowski with manslaughter on unlawful and dangerous act, should not have focused on that particular charge.

The Court said this because it distracted the sentencing Judge from considering the proper level of criminality of the driving.

The Court expressed this view because there’s a structure of offences that deal with occasioning death resulting from driving. Manslaughter “stands at the very pinnacle of that structure as the most serious offence”.

The charge of Manslaughter carries a maximum penalty of 25 years imprisonment.

There’s actually less serious offences of dangerous driving causing death, for example, under s52A(1) of the Crimes Act (NSW), which carries a maximum penalty of up to 10 years imprisonment. This perhaps was the more appropriate charge the prosecution should have focused on here.

There is also even less serious offences than that, and include negligent driving occasioning death, which carries a maximum penalty of 18 months imprisonment for a first time offender under s117(1)(a) of the Road Transport Act 2013 (NSW).

There is also a charge of street racing, which only carries a maximum penalty of up to $3,300 fine for a first time offender.

What is Manslaughter by Unlawful and Dangerous Act?

To be guilty of Manslaughter by unlawful and dangerous act, the prosecution must prove, beyond reasonable doubt, each of the following elements:

  1. The Victim died;
  2. The death resulted from your conduct;
  3. Your conduct was conduct that a reasonable person would consider to expose others to risk of serious injury.

This is found in section 18 of the Crimes Act (NSW).

The prosecution don’t need to prove that you intended to kill, or cause serious and permanent disfiguring.


Along with a maximum penalty of up to 25 years imprisonment, this offence, where it involves a motor vehicle carries an automatic licence disqualification period of 3 years. The court can reduce this disqualification to a minimum of 1 year at it’s discretion.

What is Dangerous Driving Causing Death?

To be guilty of Dangerous Driving causing Death, the prosecution must prove, beyond reasonable doubt, each of the following elements:

  1. Your vehicle was involved in an impact with another person;
  2. The impact resulted in death;
  3. You were under the influence of alcohol, drugs, or you drove in a speed or way that was dangerous to others.

For driving to be considered dangerous here, it requires a finding that you’re driving causes a real or potential danger to the public.

The circumstances of your case will shed some light into whether your conduct would be correctly categorised as driving in a manner dangerous.

This type of offence is found in s52A(1) Crimes Act (NSW).


Along with a maximum penalty of 10 years imprisonment, this offence carries an automatic licence disqualification period of 3 years, with the option by the court to reduce this to a minimum of 1 year.

What is Negligent Driving Causing Death?

The be guilty of Negligent Driving Causing Death, the prosecution must prove, beyond reasonable doubt, each of the following elements:

  1. Your drove a car;
  2. In driving that car, you failed to exercise the kind of care and attention that a reasonable prudent driver would have exercised in the circumstances you were in at the time;
  3. As a result, the victim died.

This type of offence is found in s117 Road Transport Act (NSW).


Along with a maximum fine of $3,300 and/or 18 months imprisonment, this offence carries a licence disqualification period of 3 years. The Court can, at it’s discretion, reduce that disqualification to a minimum of 1 year.

Published on 03/03/2018

AUTHOR Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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