27 February 2004
NV:SG
N. Velardi
(03) 9607 9382
E-mail: nvelardi@liv.asn.au
Mr Rob Hulls MP
Attorney-General
Legal Policy, Department of Justice
55 St Andrews Place,
East Melbourne Vic 3002
Dear Mr Hulls
RE: CULPABLE AND DANGEROUS DRIVING
I refer to your letter to my predecessor dated 16 January 2004. The Criminal Law Section of the
Law Institute of Victoria (LIV) considered the discussion paper and the draft submission provided
by the Criminal Bar Association of Victoria. I understand that the Criminal Bar Association’s draft
response was submitted to you in the same terms as the draft the LIV was provided. A copy of
the submission is attached.
LIV’s members have a breadth and wealth of experience in this area. Our members have
considered the issues in real life situations. They are the individuals that deal day to day with
clients who are faced directly with the issues raised in the discussion paper. They have also
considered the practical consequences of the law on society. Given our experience, LIV
considers that there is sufficient flexibility in the current law in the areas covered by the
discussion paper and considers that there should be no change to the law as it currently stands.
Consequently, LIV endorses and supports the recommendations made in the Criminal Bar
Association submission.
If you would like any further information please contact me or Natalina Velardi on 9607 9382 or
by e-mail at nvelardi@liv.asn.au.
Yours sincerely,
Chris Dale
President
Law Institute of Victoria
Culpable and Dangerous Driving
Discussion Paper January 2004.
Draft
CBA Points in response.
Preliminary matters
The discussion paper asserts that there is community concern about inadequate penalties being
imposed upon persons found guilty of offences arising out of fatal motor vehicle accidents. [para
45]
First, as a matter of fact (as opposed to community perceptions) sentences for culpable driving
have increased significantly in recent times. This cannot be gainsaid. The courts have
responded to community concerns. More people go to jail for longer for causing the death of
another person as a result of a motor vehicle accident.
Secondly, our collective experience is that there are relatively few charges of dangerous driving
where a fatality is involved. We would welcome any data on this issue. It is our experience,
especially in recent times, that any driving that appears to be dangerous driving involving a
fatality is charged as culpable driving and proceeds to the County Court.
Thirdly, there are fatalities where the police choose to lay informations for careless driving or a
breach of the road rules, such as failure to give way. These offences do not carry any
imprisonment as a sentencing option. The maximum fines for these offences are seen as low in
circumstances where a death is involved. However, the criminality that falls to be punished is the
minor breach of the road rules or the momentary falling short of the standards of a careful driver.
This criminality is a significantly less grave than dangerous or culpable driving. The tragic
consequence of the fatality cannot convert what is a minor breach of the road laws into some
more serious crime. We see that one of the basic premises of the discussion paper is whether
driving that amounts to dangerous driving should be charged as a separate new offence if a
fatality is involved. We will discuss those issues below. However, we remain unsure as to what
is proposed, if anything, where the charges laid are careless driving or breach of the road rules
and a fatality is involved. We hold the view that some if not all of the community concern averted
to in the discussion paper would remain despite changes to the offence of dangerous driving.
We are of the view that if any changes are required, and we do not concede that any changes
are required, then the problems raised by the discussion paper are best resolved by alterations
to the maximum penalty for dangerous driving rather than any new offence.
Questions
1 and 2.
No there is no need for a new offence. The current offence of dangerous driving and
its maximum term of 2 years gives a Magistrate significant discretion when dealing
with a matter in which there has been a fatality. Actual imprisonment is well and truly
open as a sentencing option. The maximum term is sufficient. As explained below in
response to question five we believe this issue is squarely about sentencing not
about a new offence. The difficulty that the author of the discussion paper
encountered when trying to articulate what any new offence would be, what its
elements would be, where it would fit in the continuum from breach of the road rules
up to culpable driving, in truth shows that the field has been well and truly covered.
There is no room for a new offence. Rather this is a sentencing issue and the debate
is really about giving greater guidance to the courts by enacting laws that expressly
indicate that where a death is involved the penalties must be harsher.
3.
No. Although we have stated that there is no need for a new offence, we wish to
emphatically say that if any is considered then there is no place for an offence of
strict liability. As a matter of general principle we consider that for all serious crime
there should be a requirement that the prosecution prove a fault element. We are not
alone in this view. There are a significant number of appellate court decisions
supporting this position. In relation to offences in the Road Safety Act [”RSA”] a
thorough analysis of the issue was undertaken by Teague J. in the matter of
Robinson v Fisher [1994] MC 94, 31 January 1993. The offence in question was
leaving the scene of an accident where a person has died or been seriously injured
was an offence of absolute or strict liability: s61 RSA. His Honour examined a
number of authorities of general application as well as authorities dealing with
offences of strict and absolute liability under the RSA or its predecessor the Motor
car Act 1958. His Honour concluded, “not without some reservations” that the offence
of failing to stop after an accident was an offence requiring full proof of mens rea.
Among the reasons given for coming to that conclusion was that the offence carried
serious penalties. The maximum penalty being 2 years imprisonment where a death
or serious injury was involved. In this submission we will not go into a detailed
analysis of Robinson v Fisher, but much would be gained by a careful scrutiny of the
case.
4.
As no new offence can be conceptualised there is no need for any consideration of
specific defences. The current offences and defences cover the field.
5.
We consider that this question is the most central one to be posed. Our basic
position is that the current penalty of 2 years imprisonment and a mandatory 6
months licence disqualification is adequate. It should be noted that there is another
offence, that is leaving the scene of an accident, [s61 RSA] which if a death or
serious injury is involved the offence becomes an indictable offence. This is a realistic
option which does not seem to have been canvassed. This would allow an offence of
dangerous driving involving death or serious injury to be pleaded on presentment,
either alone or more likely as an alternative to culpable driving. The practical benefits
of such an alternative to culpable driving would be very significant indeed. For
instance, we believe that having an alternative to culpable driving on the presentment
or as a statutory alternative would reduce the number of trials for culpable driving.
Cases would settle for pleas to the lesser count in the border line cases. Given the
higher penalties now for culpable driving it is our experience that there are an
increasing number of trials for culpable driving. As is well known trials for this crime
are most traumatic for the family and witnesses. If trials can be avoided by the
provision of an alternative then this should be facilitated and encouraged. We would
also favour the retention of summary jurisdiction for dangerous driving, so that the
above proposal would give jurisdiction to the County Court in appropriate cases; in
other words, dangerous driving would become an indictable offence, triable
summarily.
6.
If there was to be an increase in the penalty for dangerous driving where a death or
serious injury is involved then the increase should be moderate. Any increase in
penalty will have the effect of turning the offence into an indictable offence triable
summarily. This again would allow the offence to be an alternative to culpable driving
with all the consequent benefits to the criminal justice system averted to above.
7.
Refer to answer to question 5/6
8.
We are firmly of the view that the range of offences which form breaches of the road
rules including careless driving, dangerous driving, culpable driving as well as
conduct endangering person or life completely cover the field. There is not a state of
mind or fault element that does not currently find expression in an offence. That is
why the discussion paper struggles to articulate a new offence or new fault element.
That is also why no other State has enacted an offence with an alternative state of
mind to those already in our legislation.
9.
This proposal is simply careless driving as set out in s 65 RSA.
10.
This proposal is too vague and in our view is best covered by our current offence of
dangerous driving which is the offence that fits between the civil standard of
negligence(careless driving) and that of gross negligence(culpable driving)
11.
No.
12.
The circumstances where there is serious injury but not death is adequately covered
by the offence of negligently causing serious injury.
13.
Refer to answer to question 11.
14.
Refer to answer to question 5/6
15.
Refer to answer to question 5/6.
Falling Asleep
16.
No . We consider that this aspect of the discussion paper fails to acknowledge that
driving is a conscious and voluntary act. The failure to grapple with this issue has
resulted in a number of questions being posed in the discussion paper that the High
Court resolved in Jiminez v R (1992) 173 CLR 573. The basic premise of Jiminez is
that to be punished for criminal behaviour while driving it must be first established that
the driving was a conscious and voluntary act. A person without fore warning who
falls asleep while driving is not performing a conscious and voluntary act and
therefore cannot be held criminal liable for the consequence of the driving. However,
driving in circumstances where a person is or should be aware that fatigue is setting
in and falling to sleep is a real possibility and in spite of that the person keeps driving
is an example of driving negligently. Jiminez at 577,579.
17.
No: see answer to question 16
18.
No: see answer to question 16
19.
No: see answer to question 16.See also the judgement in R v Franks 1999 VR
20.
No: see answer to question 16 and 19
21.
No: see answer to question 16 and 19
22.
See answer to question 16 and 19
Licence Suspension.
23.
It is fundamental that a person is presumed innocent until proven guilty. It follows that
no punishment should be imposed until a person is found guilty or pleads guilty before
court exercising judicial authority to impose punishment. A magistrate in committing a
person to stand trial is exercising an administrative function. A committal for trial is
not the appropriate forum for part of the penalty to be imposed, notwithstanding that
the licence disqualification is mandatory. The penalty for culpable driving is to be
imposed by a judge exercising sentencing discretion in the process known in
Victorian courts as the instinctive synthesis. The Court of Appeal has said that
culpable driving cases perhaps more than others call upon a sentencer to invoke this
concept of instinctive synthesis. [case ref]. The licence cancellation is part of the
punishment.[ case ref] It should be left to the sentencer to determine when the
disqualification should commence and how long it should be for.
24.
Suspension of the licence once a person has pleaded guilty at the committal is not
appropriate for the reasons set out above. In addition we fear that an important but
unintended consequence would be that very few matters would resolve at committal
stage requiring the prosecution and the court to prepare the matter as if it was going
for trial.
25.
We believe there may be some instances where a Magistrate could exercise a
discretion suspending a licence pending trial on the same basis that bail conditions
are set, that is if the Magistrate was of the opinion that a person was a risk of further
offending if they were to continue to hold a licence then a discretion could be
exercised to allow the suspension of the licence.
26.
See answer to question 25
27.
Licence disqualification is part of the penalty for a range of driving offences. The
discretion to order a period of disqualification is exercised by the sentencer following
an analysis and synthesis of all the relevant matters that pertain to penalty. This
includes the sentencing purpose of rehabilitation. It may be part of the need to
facilitate rehabilitation that ensures that a person is able to get their licence back upon
release from prison. There are many considerations and the sentencer is in the best
position to assess them all and impose the just period of disqualification. In some
instances the period of disqualification will be beyond the term of imprisonment and
other instances it will not be, but in each occasion it is the sentencer who is in the
best position to judge what is just and appropriate in all the circumstances.
Legislative directive fettering the discretion is to be avoided.
28.
See answer to question 27
29.
See answer to question 27
Death of a foetus
30.
We believe that the issues raised in this section of the discussion paper are of wide
general importance and application. It would be inappropriate to consider the issues
in isolation from those wider issues that flow from the killing of a pregnant woman be
it in a homicide, industrial accident, or a road fatality
Gerard Mullaly
Benjamin Lindner
On behalf of the Criminal Bar Association of Victoria