There is presently a proposal before the Queensland Parliament to increase the penalties for the offence of careless driving of a motor vehicle where a person has suffered death or serious injury (grievous bodily harm).

The bill is in response to the tragic deaths of two siblings following a road accident near Maryborough during Easter 2017.

There is an old legal adage that hard cases make bad law. This, sadly, is such a case.

On the face of it, tightening the penalties for reckless drivers seems like an irreproachable goal. But the bill before parliament will do virtually nothing to strengthen the penalties for the most dangerous drivers, whilst increasing the risk that genuine accidents will be punished disproportionately and unfairly.

To understand why, it is important to understand the laws as they stand now.

The charge of dangerous operation of a motor vehicle causing death or grievous bodily harm applies to serious cases of driver misconduct. This is the charge often used against drivers who were speeding, under the influence, or otherwise driving in an unsafe way. Rightly, this charge attracts stiff penalties: there is a mandatory minimum licence disqualification of six months, and the maximum penalty is up to 14 years imprisonment.

The new laws will not affect hoons or drunk drivers that kill people on the roads. They will not save any lives.

But there also exists a lesser charge, driving without due care and attention, commonly called ‘careless driving’. For this offence, it is only required that the driver’s actions “fall short of the standard expected of a reasonable driver”. It is easy to see that this is far more broadly defined (and easier to prove) than dangerous driving. It is a traffic offence (in contrast to dangerous operation, which is an indictable criminal offence).

Driving without due care and attention encompasses a wide range of acts, including genuine accidents. For example, in theory someone could be found guilty of this even if they were following the road rules and not at fault in a crash. On the other hand, it can also cover cases of true driver negligence. The range of penalties available reflect this; there are no mandatory minimum sentences, but the maximum penalty is six months’ imprisonment. (And, again, more serious cases would often attract the higher criminal charge of dangerous operation.)

In the case of the tragedy at Maryborough, the police charged the driver responsible with driving without due care and attention, not with the more serious charge of dangerous operation. The sentence he received reflected that. There was public outrage at the perceived lenience of his sentence.

Without commenting on the specifics of the Maryborough tragedy, it seems clear that media coverage has given the impression that reckless driving caused the crash and that the Queensland law was soft on this. We know, however, that the driver was not charged with dangerous driving, and that the sentences for dangerous driving are not lenient. Furthermore, the new laws will not affect those who have been charged with dangerous driving.

So who will it affect? Those whose driving “falls short of the standard expected of a reasonable driver” but doesn’t meet the definition of “dangerous” but has nonetheless caused death or serious injury. This is not a particularly common scenario. But the mandatory minimum licence disqualifications – enough to make someone lose their job and livelihood – will doubtlessly affect some who have been involved in genuine accidents. Judges will lose their ability to exercise discretion in such cases.

The new laws will not affect hoons or drunk drivers that kill people on the roads. They will not save any lives.

The best way to prevent traffic offences and anti-social driving behaviour is a multi-tiered approach which includes driver education programs, enforcement of the road rules, and wide judicial discretion to ensure that the punishment fits the full circumstances of the crime.

Link to recent media articles:

• Brisbane Times