The ACT Law Reform and Sentencing Advisory Council Report into dangerous driving: sentencing and recidivism offers the following recommendations
22 recommendations for positive action, including changes to current legislation and implementation of new intervention programs for dangerous driving offenders
8 recommendations not to take particular actions, for example, the Council recommends against the creation of a specific Vehicular manslaughter offence, and against a legislated system of guideline judgments, and
5 recommendations that were not unanimously supported by all Council members, as might be expected from a Council made up of such disparate stakeholders from the criminal justice system.
Relevant law and definitions
The terms ‘dangerous driving’ and ‘repeat offender’ have broad, colloquial meanings that do not accord well with the corresponding definitions in ACT legislation. The Council therefore recommends: 6.1. 6.2. 6.3. 6.4. The ACT Government introduce amendments for culpable driving and negligent driving offences to better clarify the distinctions intended to apply between the different kinds of conduct covered by these offences. The use of the word ‘dangerous’ in s 7 of the Road Transport (Safety and Traffic Management) Act 1999 is confusing, particularly in light of the recent amendments.
The ACT Government consider revising this terminology.
The ACT Government consider harmonising and/or streamlining the legal definitions of ‘repeat offender’ across existing ACT road safety-related legislation to ensure greater clarity and consistency in their application, having regard to the purpose and use of each definition.
The ACT Government consider conducting a review of the impact of the 2016 changes (which removed the 5-year time limit on the scope of repeat offending for the purposes of automatic or mandatory licence disqualifications) on sentencing outcomes to determine whether such changes have had a detrimental impact, in particular in relation to vulnerable offenders.
Offences
The ACT Government introduce legislative amendments that simplify and/or clarify and/or ‘streamline’ the serious driving offence framework, for example: Locating all the significant driving offences in the same Act, and Clarifying the difference in culpability between driving a vehicle ‘negligently’ but culpably in s 29(6)(a) of the Crimes Act 1900, and driving a motor vehicle ‘negligently’ in s 6(1) of the Road Transport (Safety and Traffic Management) Act 1999.
The ACT Government consider enacting a ‘mid-tier’ offence for dangerous, careless or reckless driving that causes injury, with a maximum penalty that sits between the current penalties for culpable driving and negligent driving offences.
This is not a recommendation unanimously supported by all Council members. In making this recommendation, the Council does not say that the current ACT serious driving offence framework is inadequate but suggests that further charging options might be of benefit to prosecutors, may improve the labelling and denunciation of offending conduct and better address community perceptions.
The Council does not recommend the creation of a vehicular manslaughter offence.
Penalties
The Council does not recommend increasing maximum penalties for existing serious driving offences.
The ACT Government consider amending the legislation in relation to licence disqualifications for serious driving offences so as to provide, either automatically or as a matter of court discretion, that the commencement of the period of disqualification is delayed until the offender has completed any period of incarceration imposed for the offence or set of offences. This is not a recommendation unanimously supported by all Council members.
The Council members who disagreed suggested that if the proposal was to be pursued, there should be included a discretion so a sentencing court could modify the effect of it in appropriate cases, such as those provided for in s 206A of the Road Transport Act 2013 (NSW) which provides that the period of disqualification “is subject to any court order relating to the operation of the section.”
The ACT Government consider whether an interlock condition upon restoration of an offender’s licence is appropriate in cases of culpable driving where there is a link between alcohol misuse and the offending, noting that as a general proposition, the Council considers that interlock devices should be made more accessible to offenders on low incomes.
The ACT Government consider implementing a scheme for serious traffic offenders to affirmatively prove their fitness to drive before being relicensed. This is not a recommendation unanimously supported by all Council members.
The Council does not support the implementation of a high-risk offender scheme for the ACT, nor does the Council support legislative amendments to allow car crushing for serious driving offences.
The ACT Government introduce legislation to create licence disqualification periods for the Drive at police offences contrary to s 29A and 29B of the Crimes Act 1900, consistent with disqualification periods for other driving offences.
A majority of the Council does not recommend the creation of further aggravated forms of serious driving offences.
Data analysis
Leaving aside the lack of consistent and reliable ACT data, it is apparent that there is considerable concern about the lack of common standards across Australia for the collecting and measuring of road safety data impeding creation of a nationally consistent dataset.
The Council endorses national consistency and common standards for Australian road safety data and encourages further work in that regard.
The Council endorses the recommendation in the ACT Government’s Road Safety Action Plan 2024–25 to improve road safety data capturing and reporting. In particular, the Council recommends that:
a. Road safety datasets should be easily accessible and user-friendly to the public, researchers and policy makers
b. Road safety datasets should be regularly updated and published so that the data is timely and not stale, and
c. Crash data should be integrated with other government data to form a comprehensive road data set, akin to the approach adopted in NSW.
The ACT Sentencing Database should be improved. In particular the Council recommends that:
a. database processes include some form of quality assurance and/or cleaning of the data
b. if possible, the temporal scope of the database be increased; it would be preferable that all of the specific Court datasets cover the same time periods
c. the database make it clear what are repealed offences, what are aggravated offences, and offences where the maximum penalty has changed over time
d. finer data points be inserted into the database, specifically for more gradations in the timing of entry of pleas, and the ability to search over user-defined time periods, and
e. the database also includes additional data points such as the age and gender of offenders across all courts, the quantum of and rationale for reductions for pleas of guilty, and demographic details (including ethnicity data, where available) of victims.
The ACT Government create a standalone entity to manage and share criminal justice statistical databases and facilitate the creation of richer datasets where criminal justice data can be integrated with other government information to enable more detailed research and better targeting of initiatives, including road safety initiatives; for example, an analogue to the New South Wales Bureau of Crime Statistics and Research (BOCSAR).
Sentencing practice
While the Council observes that there is community concern and perception about misapplication of ACT sentencing principles for serious driving offences, including about the reductions properly to be afforded an offender in respect of the entry of a plea of guilty, the Council does not consider that these concerns are unique to this offence type and accordingly does not recommend any changes to sentencing principles for this specific offence type.
a. In particular, a majority of the Council does not recommend legislative change in respect of the operation of s 35 of the Crimes (Sentencing) Act 2005 either generally, or for serious driving offences.
b. General concerns about lenient sentencing, and possible measures to rectify such an issue, fall to be considered in a broad review of ACT sentencing practices generally. While there is a need to improve public understanding in relation to sentencing, the Council does not recommend the creation of a statutory list of mitigating and/or aggravating factors that apply to sentencing in cases of serious driving offences.
The Council does not unanimously recommend legislative change to make infringement notice and/or administrative sanction histories admissible in sentence proceedings.
The Council does not recommend the creation of a guideline judgment scheme generally, or of a guideline judgment for this offence type.
The ACT Government fund qualified psychiatrists, psychologists or medical practitioners to prepare detailed psychological risk assessments for consideration by the court when sentencing for serious driving offences and/or recidivist drivers that better address potential risks around recidivism than the current funded reports.
Intervention programs
The ACT Government prioritise investment in driving programs and public education strategies, including:
a. Programs targeted at current and future drivers with a greater emphasis on risk awareness and safety matters
b. Specific programs for specific high-risk individuals and/or vulnerable groups (for example, school-age children, learner drivers, drug and alcohol users, people in contact with the criminal legal process or repeat offenders)
c. Programs that are financially accessible, readily available, and appropriately targeted to, and culturally safe for, vulnerable members of the community, and
d. Targeted and well-resourced training for those responsible for conducting these programs.
The ACT Government both develop and adapt programs, in consultation with other Australian and international jurisdictions, that are grounded in psychological theory and research to address the attitudes of serious repeat traffic offenders and address serious driving/traffic offending behaviour in the ACT.
In particular, the ACT Government consider:
a. Whether completion of dangerous driving and/or drug and alcohol programs should be a mandatory precondition to regaining a driver's licence after conviction and disqualification for certain serious offences. Offenders should be required to satisfactorily complete a program directed at their attitude to risk and risk management, and thus their offending, before they can drive again.
b. Making programs available at various stages of the criminal justice process – after the entry of a plea of guilty but before sentence, as part of a sentencing order, while in custody on remand prior to sentencing, or while serving a term of imprisonment. This would ensure that the programs are available to the widest cohort of offenders who would benefit from participating in them.
c. Charging fees only if concessional rates and assistance are made available to those experiencing financial hardship. The programs should be culturally safe for vulnerable members of the community.
d. Whether completion of rehabilitation programs should be a mandatory precondition to regaining a driver's licence after conviction for certain serious offences – and there is a link between alcohol and drug use – as long as the programs are financially accessible, readily available, and appropriately targeted to, and culturally safe for, vulnerable members of the community. There should be periodic, regular reviews of the effectiveness of these programs.
The ACT Government prioritise investment in therapeutic interventions, both in custody and in the community, for serious driving offenders, including investment in interventions that are financially accessible, readily available, and appropriately targeted to, and culturally safe for, vulnerable members of the community.
The ACT Government implement and fund programs similar to the New South Wales MERIT program, to allow for timely and appropriate interventions for serious driving offenders on bail.
The ACT Government provide appropriate funding for efficacy evaluations of all intervention programs currently operating and introduced in future.
The impacts on victims and the community
In the absence of any cogent evidence about deficiencies in the victim impact statement process for serious driving offences, the Council does not recommend any changes to it.
The Council does not recommend the introduction of community or first responder impact statements for serious driving offences. The ACT Government continue the availability of the voluntary Restorative Justice Scheme for serious driving offences involving death or serious injury.
The Council supports moves towards trauma-informed language in sentence proceedings, and particularly moves away from the word ‘discount’.
The Council supports a move towards Supreme Court initiated trauma-informed practices when scheduling proceedings, including changes to language and ensuring that court dates do not conflict with particularly sensitive dates such as a victim’s birthday or the date of their death.
The Council recommends that the ACT Magistrates Court should, where possible, publish on its website sentencing decisions for all cases of Culpable driving causing grievous bodily harm, Negligent driving causing death and Negligent driving causing grievous bodily harm.
The Council also considered 'The Australian context – other law reform and sentencing advisory bodies '
The issues before the Council, such as whether the maximum penalties for serious road crimes are appropriate, the sentencing principles relevant to these offences, and the experience and rights of victims are not unique to the ACT. Dangerous driving is a matter of broad concern. Communities around Australia and elsewhere have raised concerns about the operation of criminal laws in the context of cases where a person has been seriously injured or killed as a result of a motor vehicle collision. A number of Australian law reform bodies have reviewed, or are currently reviewing, dangerous driving offences – and particularly those causing death or serious injury. Sentencing advisory bodies in other States and Territories have also been tasked in the past decade with examining sentencing practices for dangerous or serious driving offences in their jurisdiction.
All attempt to answer the questions:
- Do existing laws do enough to prevent and respond to the aftermath of dangerous driving?
- Are sentences imposed by courts for dangerous driving offences adequate?
- What role should victims play in the criminal justice process?
- Are victims and their families being adequately supported?
The findings of some of these reviews, outlined below, are similar to those reached by the Council.
New South Wales
In January 2011, the New South Wales Sentencing Council published a report on Standard non-parole periods for dangerous driving offences. The report considered, and recommended against, a standard non-parole period for dangerous driving occasioning death or grievous bodily harm offences. In September 2020, the New South Wales Sentencing Council released its ‘Repeat traffic offenders‘ report. Relevantly for our review, the report concluded that subjecting serious repeat traffic offenders to educational or therapeutic programs and similar interventions aimed at changing offending behaviour was preferable to simply increasing levels of punishment, either for serious first offences or repeat offences. In 2022, the New South Wales Law Reform Commission (NSWLRC) commenced a major review of serious road crime, including existing laws and penalties, sentencing principles, and the experiences and rights of victims and their families. It released a consultation paper in December 2023. Submissions to the NSWLRC consultation paper closed on 5 April 2024. The final report is yet to be published.
Victoria
In June 2015, the Victorian Sentencing Advisory Council published its Major Driving Offences: Current Sentencing Practices report. The report examined sentencing practices for culpable, dangerous and negligent driving causing death or serious injury convictions in Victoria in 2006-2007 and 2012-2013 and found that speeding and alcohol were the predominant driving behaviours associated with the most serious offences. The report found that compared with other offences where there may be a broad range of harm and culpability within a single offence (such as aggravated burglary), the seriousness of the harm caused in cases of major driving offences and the need for general deterrence were the predominant sentencing considerations. Those key considerations appeared to temper differences in sentences as a result of the manner in which the offences were committed or characteristics personal to the offender.
Tasmania
In 2017, in response to community concern about penalties imposed for driving offences, the Tasmanian Sentencing Advisory Council (TSAC) released its report on Sentencing of driving offences that result in death or injury. The report considered that the use of imprisonment, the principles used to determine sentence length, and the types of sentences imposed for dangerous driving offences were appropriate. Recognising the need to address negative community perceptions about sentencing and better meet the needs of victims, the report recommended improving communication on sentencing outcomes. The report recognised the ‘expectation gap’ between what the law can do and what victims and their families feel as being enough; and observed that restorative justice mechanisms may be more able to assist in closing that gap than sentencing reform.
Queensland
The Queensland Sentencing Advisory Council’s 2018 report Sentencing spotlight on dangerous driving causing death examined outcomes for Dangerous operation of a vehicle causing death offences finalised in Queensland courts from 1 July 2005 to 30 June 2017. This report was a ‘sentencing spotlight’ and as such did not make any recommendations for reform. It found that the average prison sentence for the offence of Dangerous operation of a vehicle causing death was 5.2 years, but the sentences ranged from 1.5 to 9 years, with the presence of aggravating factors tending to result in higher sentences.
In a media release that accompanied the release of the report, the Council’s chair John Robertson said that the Queensland Council’s work on sentence was proving to be an important ‘myth buster’, and further stated:
“I think perhaps in some quarters there is a mistaken belief that offences of this type are committed by either very young or very old drivers. As we’ve discovered, based on the sort of thorough data analysis that QSAC does best, that is not the case. It’s also particularly interesting to look at the criminal history of offenders – more than half had no previous criminal convictions. And over the 12-year data period, there were no repeat offenders for this specific offence. All-in-all, it’s an unusual offence; unlike other crimes there is no direct link to socio- economic disadvantage. It’s not a crime you can pin to a particular postcode or group of people. It is often very relatable – you can see how it might happen – it is always tragic, and the presence, or not, of aggravating factors such as alcohol or speed makes a huge difference to the level of culpability, or degree of guilt.”
