*Pic: Flickr, MyLifeStory
The Sentencing Advisory Council has called for public submissions to its report on “Sentencing of Driving Offences that Result in Death or Injury: Consultation Paper” [October 2016] by 18 November 2016. HERE My feedback follows …
Key Observations:
1. The Minister should be informed the Terms of Reference (Scope) is inadequate to satisfactorily respond to the desired reduction in trauma or frequency associated with driving offences that result in death or serious injury because –
a. Statutory penalties without consideration of complementary administrative penalties cannot provide adequate deterrence from dangerous or negligent driving as is acknowledged in this report where prior offences are noted.
b. The limitation to 2015 ignores the spike in road deaths and trauma that has occurred in 2016 (a 16% increase to 29 deaths as at 30 September 2016) as does the report where statements are made concerning the “reduction in deaths and serious injury over a decade.” NSW had an even larger spike of 24%.
2. Where a case of driving causing death or serious injury occurs then –
a. The separation between manslaughter, indictable and summary offences is not seen as being consistently applied. Referrals to the Supreme Court would be argued as time, cost and resource prohibitive but leading to inconsistent treatment of an offence. However, consideration should be given for all cases of driving causing death to be heard in the Supreme Court and let the court and jury decide on culpability and the circumstances.
b. Variations to statutory penalties could include longer periods of disqualification (eg 10 to 25 years) and the confiscation of the motor vehicle. Disqualified offenders usually reoffend with the same vehicle and the ability to apply this penalty should be available under normal Police administration with the avenue of an appeal through a Court or Tribunal. Mandatory medical assessments (drug or alcohol dependency; mental instability) should precede trials in the most serious cases (eg road rage) and be a requirement before the reissue of a licence.
c. A comprehensive table of aggravating and mitigating circumstances is supported and, again, this should also be available for application through Police administrative penalties. I note driving whilst disqualified is not generally listed as an aggravating circumstance for escalation of an offence to dangerous driving. The same can be said of an unregistered and uninsured vehicle.
3. The Tasmanian government should aim for consistency with other Australian states in relation to statutory and administrative penalties. A suitable forum would be COAG and should not be onerous.
General Feedback:
I will refer mainly to the following case study to highlight my key observations above.
Aggravating factors:
In this case the prosecution chose to advance through the Magistrates Court as a Summary Offence despite four prior convictions for drink-driving and driving without a current licence. The offender was driving a vehicle (his own), unlicensed on a public road yet the behaviour apparently did not qualify as dangerous driving. Despite the Magistrate observing the offender had a clear view on a straight stretch of road on a clear day with a cyclist wearing high visibility clothing, the offender was only prosecuted for negligent driving. I note in your report it states,
“An examination of sentencing comments from cases where an offender was convicted of motor manslaughter and dangerous driving causing death or grievous bodily harm revealed that at the time of the crash which resulted in death or injury, the driver was disqualified or unlicensed in 26.2% of cases. Research conducted by the Road Safety Advisory Council reported that crash data from 2011 showed approximately 10% of drivers involved in fatal crashes were unlicensed and that it was evident from ‘a random sample of Tasmanian crash reports involving an unlicensed driver … that they were engaging in high risk behaviours at the time of the incident’.”
Further, it states,
“In sentencing offenders for serious driving offences, courts have recognised the danger presented by dangerous and risky driving and the need for community protection. Community protection is specifically identified as one of the purposes of sentencing in Tasmania.” [6.4 Incapacitation/protection of the community]
It is contended driving whilst disqualified or unlicensed constitutes “dangerous and risky driving” and requires “community protection.” The table at 3.5.2 “Driving behaviour, Negligent driving causing death, 2008–15” lists six cases (26% of the total) as “Alcohol/drug affected driving” and “Speed.” It is also contended the consumption of alcohol or drugs and the driving at excessive speed are conscious and deliberate decisions presenting a danger to the public and not negligence. This demonstrates the systemic repetition of inconsistency as per my case study.
Current Statutory Penalties:
The case study lists the current maximum penalty as “a maximum penalty of 12 months in jail and a $1300 fine.” Below are the statutory penalties for Negligent Driving as prescribed by the Act. It is contended the penalties are manifestly inadequate and it would be noteworthy to identify unpaid court fines. The Act in referring to a second offence becomes almost surreal.
“Under the Traffic Act 1925 (Tas) s 32, the maximum penalties are as follows:
Negligent driving causing death 10 penalty units ($1570) and one year imprisonment for a first offence.
20 penalty units ($3140) and two years imprisonment for a second offence.
Negligent driving causing grievous bodily harm 10 penalty units ($1570) and six months imprisonment for a first offence.
20 penalty units ($3140) and one year imprisonment for a second offence.”
The inadequacy of the current penalty regime and its application through the courts is shown at 3.5.3 Sentencing Outcomes for Negligent Driving wherein the report states,
“Use of Imprisonment and Sentence Length
“In the period July 2006 to May 2016, there were 21 charges where a single sentence was imposed for negligent driving causing death and the majority of offenders received a fully suspended sentence (66.7%).”
In the meantime, the family of the case study is without primary income, a husband and a father from a collision with a car driven by a man not licensed to be driving.
The need for a complementary review of Police Administrative Penalties
The report makes numerous references to preventative or deterrent measures as being not fully effective such as,
“While it is certainly agreed that having a punishment structure (police, courts, and sentences) does have a deterrent effect and does reduce offending, research suggests that increasing sentence severity does not better deter would be offenders (marginal deterrence) or reduce crime rates. This was recognised by the Full Bench of the Supreme Court of South Australia in R v Payne, where it was stated that:
“‘When one considers the range of factors that contribute to fatal accidents, one becomes all the more conscious of the fact that the punishment of offenders through the courts is only one of a range of appropriate responses to the problem of road fatalities. The courts must play their part, but it is a mistake to assume that increasing the severity of sentences is the answer to the problem. In the light of the information before us we are not satisfied that increasing the level of sentences would further reduce the incidence of this offence. Driver performance and driver behaviour are obviously significant factors, but whether an increased level of sentences would have any significant effect is doubtful.’”
Many instances in the report detail where offenders before the courts have prior serious traffic offences and are often disqualified drivers. It is contended most reoffend because they still possess their motor vehicles. It is also contended many would have unpaid police and court fines. The solution requires action away from the status quo. Community behaviours could shift if police administrative penalties better reflected actions that deterred driving that MAY result in death or serious injury. This would encompass:
• Excessive speed such as 45kph or more above the speed limit;
• Driving under the influence of alcohol where the blood alcohol level exceeds .20;
• Hooning such as fishtailing, burnouts or street racing; and
• Instances of road rage.
These offences should result in immediate confiscation of vehicle and loss of licence for an extended period. Where normal offences and police fines are applied then the police should be able to vary the fines with evidence of any mitigating or aggravating circumstances in the same manner as a court. An independent review or appeal capability should be allowed in the most serious cases.
*Mark Temby is a general member of the public who has campaigned for improved road safety through the Premier Mr Hodgman; Minister for Roads and Police, Rene Hidding; the Department of State Growth; the Road Safety Advisory Council; and local southern Councils. I have also written several articles on road safety and improvement priorities for Tasmanian Times: HERE
