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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-03-30 Daily Xml
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Bills

Criminal Law Consolidation (Causing Death by Use of Motor Vehicle) Amendment Bill

Second Reading

The Hon. R.I. LUCAS (Treasurer) (15:27): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and detailed explanation of clauses inserted in Hansard without my reading them.

Leave granted.

Mr President, I am pleased to introduce the Criminal Law Consolidation (Causing Death by Use of Motor Vehicle) Amendment Bill 2021.

The bill amends the Criminal Law Consolidation Act 1936 to impose an immediate ban on driving for those who unlawfully kill another as a result of culpably negligent, reckless or dangerous driving. It addresses a lacuna in the law in relation to persons who have been charged with or are believed to have committed an offence of causing death by dangerous driving, but have not yet been convicted of the offence.

The bill inserts new section 19AE in the Criminal Law Consolidation Act 1935 to impose a mandatory licence suspension or disqualification when a person is charged with causing death by dangerous driving. This will ensure that all offenders who are charged with an offence under section 19A(1) are not permitted to drive until the charge is finalised or the suspension or disqualification is lifted by a court.

Currently, if a person is taken into custody and charged with an offence, including an offence of causing death by dangerous driving, they are eligible to apply for release on bail. The bail authority may impose certain conditions in relation to the grant of bail, including that the person comply with any condition as to their conduct that the authority considers should apply while on bail. This might include a condition that the person refrain from driving a motor vehicle while on bail.

However, for a charge of causing death by dangerous driving the person is not always immediately arrested and charged. In some cases the investigation into the circumstances of the accident and any criminal responsibility may be more complex. Once a determination is made to charge the person under section 19A(1), the person will receive a summons to attend court to answer the charge. In these cases, the issue of bail may never arise.

The bill ensures that all persons who are charged with causing death by dangerous driving, whether or not they are arrested, will automatically have their driver's licence suspended, or if they do not have a licence, that they are disqualified from holding or obtaining a licence.

The bill also inserts new section 19AF in the Criminal Law Consolidation Act 1935. Section 19AF empowers a police officer who reasonably believes a person has committed an offence against section 19A(1) to give the person a notice imposing an immediate licence suspension or disqualification. This will involve an exercise of discretion by the police officer, and is expected to be used where the police officer is concerned about the safety of other road users, should the person continue to hold a driver's licence following the accident. This provision will ensure that police are empowered to protect road users immediately after an accident causing death takes place and where a charge is not laid immediately.

Under sections 19AE(6) and 19AF(6), a court may order the suspension or disqualification end if satisfied, on the basis of evidence given on oath on behalf of the person, that:

(a) exceptional circumstances existing in relation to the person or the alleged offence such that it is, in all the circumstances, appropriate than an order be made; and

(b) the person does not pose a substantial risk to other members of the public if an order is made.

This will ensure that in exceptional cases, a person can apply to the courts to have the suspension or disqualification lifted, while ensuring that community safety remains paramount.

The court must also take a suspension or disqualification imposed under section 19AE or 19AF into account when sentencing an offender for the offence or another offence arising out of the same conduct, and may backdate the suspension or disqualification accordingly.

There has been a recent campaign by the Advertiser and Sunday Mail, named the Road to Justice campaign, calling for a number of changes to the way in which offences of causing death by dangerous driving are dealt with.

This bill implements the intent of one of those proposals, namely to ban alleged killers from the roads while on bail. However, the bill also deals with circumstances in which the alleged offender is reported for an offence rather than arrested.

The Government has considered those proposals, and is not satisfied that there is a need for further changes to this area of law.

In South Australia, the offence of causing death by dangerous driving is found in section 19A(1) of the Criminal Law Consolidation Act 1936. For a first offence of causing death by dangerous driving, where the offence is a basic offence, the maximum penalty is imprisonment for 15 years and a licence disqualification for 10 years or such longer period as the court orders. The maximum penalty for an aggravated offence or any subsequent offence is imprisonment for life and licence disqualification for 10 years or such longer period as the court orders.

The Sentencing Act 2017 further provides that for certain serious offences against the person, including an offence of causing death by dangerous driving, there is a mandatory minimum non-parole period of four-fifths of the length of the sentence. This means that a court must not impose a non-parole period shorter than four-fifths of the length of the sentence unless special reasons exist, having regard a limited set of factors.

The penalties applying in South Australia are already among the most severe in the country. The disqualification period of at least 10 years is longer than any other Australian jurisdiction. In line with community expectations, the significant penalties reflect the gravity of this type of offending, the devastating loss of life and the need to protect road users from further danger.

The government, through the Statutes Amendment (Sentencing) Act 2020 which came into operation on 2 November 2020, also reduced the discount available where a defendant pleads guilty to an offence. As a result, for an offence of causing death by dangerous driving, the maximum discount available for an early guilty plea within four weeks of the defendant's first court appearance is 25 percent.

Further, where a person is charged with causing death by dangerous driving and the offence was allegedly committed in the course of attempting to escape police pursuit, there will be a presumption against bail. That is, unless the person can show the existence of special circumstances justifying their release on bail, they will be remanded in custody pending the outcome of charges.

In addition to advocating for harsher sentencing laws, the Road to Justice campaign proposes to restrain the DPP from negotiating a plea-deal to offenders charged with causing death by dangerous driving to plead guilty to a less serious offence such as aggravated driving without due care. This proposal is misguided. It does not reflect the fact that plea-bargaining includes multiple considerations, not least being whether the more serious charge is supported by the evidence and whether or not it is in the best interests of victims and their families to be subjected to a drawn out and traumatic court process that may not result in conviction.

The campaign also calls for 'the employment of specialist victim support officers to assist families, particularly children, of people killed in road crashes during the court process'. This may indicate a lack of awareness of the services that are currently available to victims of crime and their families to overcome the effects of trauma and be supported through the criminal justice process. The Attorney-General indicated in the other place that she has spoken with the Commissioner for Victims' Rights about the apparent lack of awareness, and the commissioner has agreed to undertake further education opportunities to alert the public to what is already available.

The Attorney-General's department provides funding to the Road Trauma Support Team to provide free counselling and support for people affected by road trauma. This includes funding for accommodation services for individuals and families needing to stay in Adelaide for court or coronial proceedings, meetings with South Australia Police or to attend related medical appointments.

The Witness Assistance Service in the Office of the Director of Public Prosecutions provides liaison and support to victims and witnesses in complex prosecutions throughout the court process.

The Commissioner for Victims' Rights also provides support to victims, including by connecting victims and their families to a companion service during court proceedings, assisting with the preparation of victim impact statements, utilising discretionary funding for legal representation (if needed) and advocating on behalf of victims.

The bill addresses a limited gap in the existing statutory framework, to ensure that road users are not put at further risk following a fatal accident and before the criminal justice process has been finalised.

Mr President, I commend the bill to members and I seek leave to have the Explanation of Clauses inserted in Hansard without my reading them.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

4—Insertion of section 19AE and 19AF

This clause inserts new sections 19AE and 19AF into the principal Act as follows:

19AE—Automatic disqualification or suspension of driver's licence following certain charges against section 19A(1)

This section requires the Commissioner of Police to disqualify a person who does not hold a driver's licence from holding or obtaining a driver's licence, or suspend the driving licence of a person who does, on the person being charged with an offence against section 19A(1) of the principal Act involving the use of a motor vehicle. The disqualification or suspension lasts until the charge is resolved.

A court may remove the disqualification or suspension in specified circumstances.

The new section also makes procedural provision in respect of the operation of the section.

19AF—Power of police to impose immediate licence disqualification or suspension where offence against section 19A(1)

This section allows police officers to give the person a notice of immediate licence disqualification or suspension if the police officer reasonably believes that a person has committed an offence against section 19A(1) of the principal Act involving the use of a motor vehicle. This process is in effect the same as the immediate licence disqualification or suspension scheme in the Road Traffic Act 1961 in relation to drink drivers etc. The disqualification or suspension lasts until the person is charged with the relevant offence (at which point the disqualification or suspension effected by new section 19AE will have effect) or a determination is made that the person will not be so charged. The new section also makes procedural provision in respect of the operation of the section.

The Hon. K.J. MAHER (Leader of the Opposition) (15:27): I rise to speak on this bill and indicate that I will be the lead speaker for the opposition. Section 19A of the Criminal Law Consolidation Act deals with causing death or harm by use of a motor vehicle or vessel, but this bill specifically deals with section 19A(1), which relates to causing death. The maximum penalty ranges from 15 years in prison for a basic first offence to life in prison for subsequent offences or aggravated offences. In addition, a 10-year licence disqualification may also be imposed, although the court may impose any length of ban it sees fit.

Despite these very heavy maximum penalties, a potential gap was identified where alleged offenders may continue to drive while on bail or while police were considering whether to lay charges. This bill proposes to amend the Criminal Law Consolidation Act 1935 to impose an immediate loss of licence in two circumstances: firstly, where a person is charged with causing death by dangerous driving, that is new section 19AE; and, secondly, where the police reasonably believe that a person has caused death by dangerous driving, that is new section 19AF.

Both of these new sections provide that where a person does not have a licence they are disqualified from gaining or holding a licence. Labor supports the proposal in this bill. The proposal forms one of the planks in the Road to Justice campaign, which The Advertiser has been running since the very start of this year.

There are a number of other parts of this that we think are worthy of support, that require non-legislative amendments; in particular, better support to victims of crime. We have seen, during the course of this government, massive funding cuts to victims of crime, and the Victim Support Service has lost nearly all of its funding thanks to the Attorney-General, the member for Bragg, Vickie Chapman. Many other programs for victims going through the justice and court processes have been cut by this government. Certainly, there are elements of the Road to Justice campaign that we think the government could easily fix by even just reversing the cuts they have made.

Be that as it may, we support this one plank of the Road to Justice campaign. I would like to in particular pay tribute to Lauren Ralph, who has been spearheading this campaign. I have had the good fortune to have had a number of communications and a meeting with Ms Ralph, who has turned what was a tragedy—the loss of a then nine-year-old sister to a dangerous driver—into something positive, and that is campaigning to increase penalties and to put in place things that mean others do not have to go through the circumstances that Ms Ralph and her family had to face. With that, I commend the bill to the chamber. I indicate that we do not have any questions or amendments in the committee stage and look forward to its speedy passage.

The Hon. R.I. LUCAS (Treasurer) (15:31): I thank the Leader of the Opposition for his indication of support for the bill.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (15:33): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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