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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-05-04 Daily Xml
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Statutes Amendment (Serious Vehicle and Vessel Offences) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 2 May 2023.)

The Hon. C. BONAROS (16:25): I rise on behalf of SA-Best to speak on the Statutes Amendment (Serious Vehicle and Vessel Offences) Bill 2022. Like all of us in this chamber, we were heartbroken at the senseless death of Sophia Naismith in June 2019 and absolutely devastated for her family. According to everything we have seen and read, and of course by virtue of the fact that she was a young girl in the prime of her life, she was a beautiful 15 year old with the world at her feet—extremely popular with her peers at Brighton High School, and by all accounts a brilliant volleyballer.

To lose a child is every parent's absolute worst nightmare and I do not think any of us can actually imagine Sophia's parents', Luke and Pia, pain and the nightmare that they continue to live each and every day. Sophia's tragic passing has reminded us all that cars are indeed lethal weapons and put in the wrong hands they take innocent lives. On Saturday 22 June 2019, the high-powered Lamborghini that ploughed into Sophia and her friend, Jordyn, was under the control of Alexander Campbell.

Mr Campbell was charged with causing death by dangerous driving and causing injury by dangerous driving, to which he pleaded guilty. There was no suggestion he had alcohol or drugs in his system. He was, however, found to have ignored recent advice to replace his bald tyres. He pleaded guilty to aggravated driving without due care but was found not guilty at trial before judge alone on the higher charge of causing death. He was sentenced to a seven-month jail term, discounted to four months and 27 days on account of his early guilty plea to the lesser charge, and that term was suspended. He was ordered to complete 200 hours of community service and his licence was suspended for a further 12 months. In other words, Mr Campbell walked out from court a free man.

As I said, to lose a child and watch the person who was at the wheel of the car walk free able to continue on with his life would be absolutely incomprehensible for Sophia's family and friends. Many in the community have indeed asked how a man, whose decision to get behind the wheel of a high-powered vehicle took the life of an innocent young girl, could escape a prison sentence. How can he walk out from court alive and free and Sophia could not? Sophia would have been 19 years old today and that is not lost on any of us.

This bill that the government introduced seeks to address as far as you possibly can that pain and heartache and potentially prevent it for other families in the future by rectifying a perceived loophole in the Criminal Law Consolidation Act in the creation of a new mid-tier driving offence when another person dies or is seriously harmed with significantly higher custodial penalties, some mandatory. It also creates instant loss of licence implications. It seeks to amend the Road Traffic Act to create the new offence of driving an ultra high-powered vehicle with a disabled automated system, with a financial penalty attached. Finally, it provides the mechanism via the Motor Vehicles Act for a new licence for drivers of ultra high-powered vehicles.

The Law Society, of course, has been very vocal on this bill and expressed concerns about a number of aspects of the bill, particularly in relation to the new mid-tier offence that does not require intent on the part of the offender. I seek leave to table the Law Society's submission, dated 20 December 2022.

Leave granted.

The Hon. C. BONAROS: The submission reads in part:

The Society considers that to attach serious criminal sanctions to outcomes without regard to the state of mind is not only contrary to the modern understanding of the criminal law but is also fraught with the risk of causing unjust outcomes in the pursuit of criminalising a very specific situation.

That is not to say that intent is a precursor for all criminal offences—we know it is not because, of course, there are numerous strict liability offences: speeding and drug and drink-driving come to mind, but the penalties for those offences are much lower. On the flip side, however, when a person loses their life or is seriously harmed there is a case for a more substantial penalty.

We have to be mindful that the penalty is or would be mandatory imprisonment with a non-parole period of four-fifths of the head sentence if the offence was aggravated and resulted in death or total incapacitation. Despite the concerns raised—and we can all say we will take lawyer's concerns with a grain of salt sometimes—we have been told that the police have also advocated for a mid-tier offence for a long time, which I think we can take on face value.

I understand that in Mr Campbell's case there were two charging options in relation to Sophia's death: driving without due care, with a maximum of 12 months' imprisonment and six months loss of licence, or causing death by dangerous driving, which carried a maximum penalty of 15 years' imprisonment, or for an aggravated offence, life imprisonment and the loss of licence for at least 10 years.

The trial judge found that the prosecution case did not meet the higher threshold. In other words, the judge could not find beyond reasonable doubt that Mr Campbell was driving dangerously, as opposed to carelessly, as he had admitted earlier. The new mid-tier offence of causing death or serious harm by careless use of a vehicle or vessel will require a person to drive without due care or attention or reasonable consideration for any person, with the end result being the death or serious harm of another person. It is basically driving without due care which results in death or serious injury and there does not need to be an intention to drive carelessly.

It is not necessarily easy to decide whether driving is careless or dangerous. Some driving is clearly dangerous. Careless driving, on the other hand, could be a breach of a road rule, offences which might ordinarily be expiated on their own. For the basic new offence, the maximum penalty is a maximum of five years' imprisonment and a one-year licence disqualification. For an aggravated offence, the maximum penalty is seven years' imprisonment and a three-year licence disqualification. A person convicted of an aggravated offence where death or total incapacitation resulted will be mandated to serve four-fifths of the head sentence without parole.

I think we do need to ask some questions around this particular proposal in light of the amendments that have been drafted. I also think we need to ask: if this law was in place would the outcome for Mr Campbell have been any different?—because that is certainly not clear to me. Would Mr Campbell have pleaded guilty to a charge which carried with it a significantly higher penalty, or would he have rolled the dice with a judge? Will the big disparity in penalties see more accused electing to fight it out in the District Court?

The second part of the bill seeks to provide police with the ability to issue an immediate licence disqualification or suspension where a person is charged with a new mid-tier offence or other serious driving offences causing death or harm. We know from other drug-driving amendments the Law Society is not a fan of instant loss of licences. We do not take particular issue with them; in fact, I think we have been successful at passing laws that require just that, especially considering an amendment that has been filed to ensure that an instant loss of licence is not mandatory where an aggravating circumstance of causing harm is not accompanied by another aggravating circumstance.

The bill also seeks to create a new offence for driving an ultra high-powered vehicle with a disabled automated intervention system, carrying a financial penalty of $5,000 maximum. An automated intervention system is defined in the bill and includes traction control, antilock braking and automated emergency braking. It will be a defence if the person did not cause or contribute to the disablement, did not know or is not to reasonably be expected to have known it was disabled, or it was impracticable to drive with it enabled.

I think we have all had discussions around foreseeing a large range of driving modes on high-powered cars and appreciate that these features in some instances can be apparently there for very good reason. I can absolutely categorically say I am not an expert in this area. I am happy to defer to those experts. But certainly it is another area of the bill that has raised discussion between members around the ability or otherwise or the ease with which you can enable and disable these features on these vehicles.

On the face of it, there appears to be a number of phrases that are novel to case law and have not had close judicial scrutiny. I think this may be an area where further clarification is required; however, we note that the penalties are on the lower end of the scale as well. 'Ultra high-powered vehicle' was originally defined in the bill but will be amended, as I understand it, to be prescribed by regulations. I think that is probably a welcomed move because it will allow flexibility to respond to developments in the vehicle market.

I understand a U-class licence has been developed by the Department for Infrastructure and Transport, which will be a requirement for drivers of these ultra high-powered vehicles. I have to say, it is amazing how fast they can work when the Premier picks up the phone and rings because we have been waiting over two years since the amendment passed in March 2021 for DIT to produce improved training requirements for novice motorbike drivers, and we are still waiting. It seems even the former minister, the person we were begging for change in the previous government, now thinks it should be a priority.

I am really disappointed to say that that issue changed between two departments and two ministers five times in that two years—five times of handballing back and forth, back and forth, while a mum of a boy who was killed on a motorbike advocated tirelessly and thought she had achieved something really good in this place by getting those changes agreed to, continues to wait to see the outcome of that.

I would hope that after this the Premier or the minister, or someone on this side of chamber, would pick up the phone and ring DIT again and ask, 'How are those changes to that system going?' because there is a family who has been advocating tirelessly for those changes across two governments now and we have not seen them, despite this government agreeing to them coming into place.

We will have a number of questions about the new licence in the committee stage. I will put some of those on notice now for the Attorney, if he likes. What I have indicated to the Attorney and his staff is that, since the amendments were provided to us, we are still waiting for advice on those. Obviously, we would like to have an opportunity to consider that before debating this bill further.

I will ask what training will need to be undertaken? Will there be an on-road component? Will the pool of instructors have specialised knowledge? How many instructors are there in South Australia, noting that waiting times for those driving instructors are already out of control and ridiculous? What are the anticipated wait times? What will the cost be? And will there be any exemption process provided for testing driving with a licensed representative present in the car? I suppose that is at the purchase point.

I believe the last issue is of considerable concern to car dealers who are preparing to navigate this new licence condition. I doubt that any of them would not go to the expense of making sure that everyone who sells cars in their car yards has that licence. Again, it is one of the issues that has certainly been raised with us by stakeholders and I think it needs to be addressed so we are all clear. As I said, the bill provides a mechanism, with the detail to follow, and we look forward to hearing more about that fast-tracked new licence class in a timely manner.

We are also, obviously, very mindful that Sophia's family is keen to see this bill pass as soon as possible, and the last thing any of us would want is to cause any further pain for a loving, tightknit family who has already been through so much, but we are also mindful that when we introduce laws that have very serious consequences and penalties of imprisonment, especially mandatory ones, we need to get them right. Like the Hon. Rob Simms, who is also, as I understand it, awaiting the same information, we simply have not had sufficient time to consult on those amendments and would appreciate the opportunity to do so.

In closing, we would also ask if consideration was given to, as I understand it, the destruction of a vehicle involved in the death or serious injury of a person. I think that came off the back of Mr Campbell making an application for the return of his vehicle, to probably pay for legal fees was what the media reports were at least, and also that it may be a leased vehicle.

We are also curious if numberplates that currently adorn cars and imply that they are driven fast or recklessly, like PSYKO on that Lamborghini, will be reviewed? Is that particular plate still in circulation? Has it been cancelled? Are there any moves to address that particular issue? With that, once again, I look forward to the committee stage of the debate of this bill.

Debate adjourned on motion of Hon. I.K. Hunter.

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