Exclusive: Road crash victims call for an end to inconsistent and unjust sentencing of killer, careless drivers
EXCLUSIVE: The disparity in sentencing dangerous killer drivers and motorists who kill through carelessness must end, victims and advocates say.
THE disparity in the sentencing of dangerous killer drivers and motorists who kill through carelessness must end, victims and advocates say.
They have called for Attorney-General John Rau to support a proposed law to rectify the inconsistent sentencing of reckless, fatality-causing road users.
Under state law, offenders who plea-bargain their crime down from dangerous to careless driving face a maximum jail term that is 93 per cent lower, and a mandatory licence disqualification up to 95 per cent lower.
The discrepancy has seen one driver, who killed three people, lose his licence for 15 months while another, responsible for a single death, was taken off the road for 11 years.
Grieving families, Commissioner for Victims’ Rights Michael O’Connell and the Nick Xenophon Team have told The Advertiser that the sentencing regime must change.
They also want victims to have greater say in, and independent oversight of, plea bargaining and an increased minimum licence disqualification.
“These are matters where lives have been devastated, and victims and their families deserve their say,” Senator Xenophon said.
“They should have the right to be a part of it, to have input ... consultation is not enough.”
However, Director of Public Prosecutions Adam Kimber SC said driving cases were downgraded due to legal considerations, not plea bargaining.
“The starting point is always the review of the available evidence and whether it shows a reasonable prospect of conviction,” he said.
They lost a son and a daughter: ‘It’s not about vengeance, it’s about consistency’
State law provides two different offences for fatal road incidents.
Causing death by dangerous driving encompasses any combination of speeding, recklessness, persistently bad driving and intoxication through alcohol or drugs.
Offenders face a maximum 15-year jail term and a licence disqualification of no less than 10 years, determined by a judge’s discretion.
If the crime is deemed, by a court or a plea bargain, to not meet the definition of “dangerous”, offenders are convicted of the lesser offence of aggravated driving without due care.
That crime, designed to deal with momentary inattention resulting in a crash, carries a maximum 12-month jail term if “aggravated” by the death of one or more people.
An offender’s licence is cancelled for no less than six months, with the disqualification period left to a judge or magistrate’s discretion.
Since 2011, five drivers have either struck plea bargains or been deemed careless, not dangerous, by a court or prosecutors and earned lesser penalties as a result.
In the most recent case, Mark Darren Burns was sentenced to five months’ jail for killing three people — and may yet be allowed to serve that term on home detention.
Lynette Lyall, who lost both her children to driver Adrian O’Daniel, said dealing with prosecutors in the wake of the tragedy had been “shocking”.
“We did have a meeting with our lawyer and the prosecution but it wasn’t ‘consultation’ — it was ‘this is how it’s going to be, otherwise there’s no case’,” she said.
“The gap between the charges is too big, especially when lives have been taken.
“In our case, we were told an appeal wouldn’t be successful because the minimum disqualification is six months, and O’Daniel was disqualified for 18 months.”
Mr O’Connell said victims felt “frustrated, even angry” after speaking with prosecutors because “they feel their views were not heard”.
“A victim complained to me that she met a prosecutor expecting to be consulted on whether to accept a plea to a lesser charge or not,” he said.
“Instead, she said, the prosecutor lectured her on the reasons they were going to accept the defendant’s plea.
“The victim asked me: ‘What was the point? Did the prosecutor believe their behaviour was consultation?’.”
He said plea bargaining occurred “behind closed doors” and greater transparency was needed.
“The state has a prosecutor, the accused has a lawyer while the victim has, in most cases, no-one,” he said.
“Victims should be entitled, if they choose, to have legal counsel to represent their interest in plea bargaining.”
“They should also have the right to direct participation in court hearings convened to determine whether the court will accept or reject a proposed plea bargain.”
Senator Xenophon said NXT’s John Darley was drafting plea bargaining reform based on legislation from Sweden, where victims had a say in the process.
“There needs to be a much greater degree of transparency and accountability in the process,” he said.
“Further, there’s room for independent oversight of plea bargains struck in cases where there is serious injury or death.”
Mr Kimber said all downgraded charges were consistent with legal precedent and case law, and the result of constant review following an arrest.
“This office is obliged to consult with relevant victims with respect to this, and other key decisions, and is committed to doing so,” he said.
“The significance (of consultation) to the legal decision that must be made varies from case to case, but what is raised is always important.”
A spokesman for Mr Rau said the State Government would consider NXT’s bill “when it is presented”.
“Until then, it is not possible to comment,” he said.
Examples of inconsistencies in our courts
Mark Darren Burns
Killed Bradley Thomas, 32, Rebecca Thomas, 36, and Jackson Tudhope, 14, on the Yorke Peninsula in June 2015.
Failed to see the Thomases’ car as he drove into an intersection causing them to crash into the car carrying Jackson.
Faced the Elizabeth Magistrates Court.
Originally charged with three counts of causing death by dangerous driving.
Reduced, by way of plea bargain, to one aggravated count of driving without due care.
Jailed for five months — which may yet be served on home detention — and banned from the roads for 15 months.
Dianne Maree Jagla
Killed her great-nephew Reece Brinckman, 11, crippled a woman and endangered the lives of three others in a crash on the Yorke Peninsula in December 2014.
Cannot remember the crash, but a passenger in her car claimed she may have sneezed just before impact.
Faced the District Court.
Originally charged with causing death by dangerous driving.
Prosecutors accepted her plea to the lesser charge of aggravated driving without due care.
Received a four-month jail term — suspended on a bond — and banned from the roads for eight months.
Rene Schroeder
Killed fellow motorcyclist Ashleigh Snape at McLaren Flat in July 2015.
Collided head-on with Mr Snape after veering a metre over the white line into his lane on a hairpin bend.
Faced the Adelaide Magistrates Court. Originally charged with causing death by dangerous driving. Reduced, by way of plea bargain, to one aggravated count of driving without due care.
Received a three-month jail term — suspended after Mr Snape’s family forgave him — and banned from the roads for two years.
William Maxwell Graham
Killed Malcolm “Mally Boy” Gollan at Rosewater in December 2014.
Dragged Mr Gollan, who was lying on the road at night, for 70m and reversed over him before driving away, then turned himself into police 20 minutes later.
Faced the District Court.
Originally charged with causing death by dangerous driving.
Prosecutors withdrew that charge and replaced it with one aggravated count of driving without due care.
Received a 16-month jail term — suspended on condition he maintain a roadside shrine to Mr Gollan — and was banned from the roads for 11 years.
Adrian O’Daniel
Killed Troy Lyall, 20, and Shanae Lyall, 16, in a crash near Bute in October 2011.
Has never explained why his ute drifted off the road and crashed, but police could not prove he was speeding or drunk.
Faced the Adelaide Magistrates Court.
Originally charged with two counts of causing death by dangerous driving.
Prosecutors accepted a plea to one aggravated count of driving without due care.
Received a seven-month jail term — suspended on condition of a bond — and was banned from the roads for 18 months.