Most offenders convicted of culpable driving causing death or grievous bodily harm were not on conditional release (bail or a suspended sentence order), and did not reoffend significantly, according to a report examining sentencing practices for dangerous drivers. Nor, the report states, are ACT sentencing practices too lenient or misapplied for culpable driving.

The ACT Law Reform and Sentencing Advisory Council (LRSAC), headed by former ACT magistrate Lisbeth Campbell, released its first report examining sentencing practices for dangerous driving offenders, after a referral by Attorney-General Shane Rattenbury last year.

LRSAC analysed every Supreme Court sentencing decision for culpable driving over the past decade (35 offenders).

“There is nothing which suggests that usual ACT sentencing practices are being misapplied for the offences of Culpable driving causing death or grievous bodily harm type of serious driving offence,” the report stated.

Despite finding no widespread leniency in sentencing, the Council recommends changing legislation and implementing new intervention programs for dangerous driving offenders.

However, it recommends against creating a separate vehicular manslaughter offence, arguing that the existing manslaughter offence is adequate; or establishing a legislated system of guideline judgments, as it finds that ACT sentencing courts are given sufficient guidance already. The Council will also review the Bail Act 1992.

Justice reform advocate Tom McLuckie, whose son Matthew was killed in a fatal crash two years ago, said the report’s findings were “very disappointing but expected”.

“I believe it will do little to address reoffending in the ACT, and in particular motor vehicle crimes, or treating homicides through negligent driving with the seriousness they deserve,” Mr McLuckie said.

Mr McLuckie argued that while maximum sentences for these offences would be “sufficient if they were actually applied as a yardstick for sentencing”, they are not used to their full extent. He pointed out that recent cases involving serious offences resulted in sentences of just two to five years.

“How the council can deny the evidence of the leniency we apply in the sentencing of these offences, which is the case of culpable driving causing death, trending downwards, when the maximum sentence for the offence was increased from 7 to 14 years in 2011, is beyond me,” Mr McLuckie said.

Inspector Mark Richardson, who heads ACT Road Policing and is an Independents for Canberra candidate, noted that the report “goes to some length to try and dispel any suggestion” that ACT sentences are more lenient than in other jurisdictions, and does not advocate for longer sentences for offences.

“That being the case, if the community sentiment is that ACT Courts are lenient, that sentiment will likely remain,” Inspector Richardson said.

Mr McLuckie raised concerns about judicial bias, pointing to instances where judges openly express leniency in their rulings. The report itself states: “The rule of law demands that judicial decisions are not fundamentally expressions of the judicial officer’s views or sentiments, but expressions of the law.”

“How can Justices be allowed in the ACT to publish judgements that clearly reflect their own bias in sentencing, and for these to remain unchallenged?” Mr McLuckie asked. “One former Justice [Michael Elkaim], for example, is on record as ‘proud to wear his leniency as a badge of honour’, with open jokes by fellow Justices at their retirement made about his sentences, or lack of. For the victims of crime, this is not a laughing matter.”

Inspector Richardson shared concerns about LRSAC’s continued reliance on restorative justice, despite the report acknowledging that “many victims do not identify restorative justice as necessary or appropriate for them”.

The report states that data available on the use of restorative justice in the ACT is insufficient to identify recidivism trends for serious driving offences. International research suggests restorative justice may not always reduce recidivism. However, the Council finds no evidence that restorative justice is inappropriate for serious driving offences, as it requires the victim’s consent. The ACT Government has tasked RMIT University with reviewing the Restorative Justice Scheme to identify strengths, barriers, and potential improvements. The Council recommends continuing the voluntary scheme for serious driving offences involving death or serious injury, with no changes to the process or legislation until the review is completed.

The Council also recommended against changing the victim impact statement process for serious driving offences, in the absence of any cogent evidence about deficiencies, or introducing community or first responder impact statements for serious driving offences.

Inspector Richardson said that these recommendations “indicate a continued lack of emphasis or regard for victims’ rights in the judicial process”.

Despite his concerns, Inspector Richardson acknowledged that the report was comprehensive, and supported its recommendations to harmonise legal definitions of ‘repeat offender’ and to clarify confusing terminology in Road Transport legislation, which he believes might improve consistency in enforcement and sentencing.

Mr McLuckie agreed with the need for clearer definitions for dangerous and culpable driving, but insisted that measures like Skye’s Law in NSW (which makes evading police pursuit an offence) and guidelines in sentencing (which LRSAC does not endorse) are necessary.

Inspector Richardson, however, cautioned that the ACT Government might not accept all the recommendations, particularly those that the council did not unanimously endorse – for instance, a proposed ‘mid-tier’ offence for dangerous, careless or reckless driving causing injury, or making serious traffic offenders prove their fitness to drive before being relicensed.

“Giving high risk offenders their licence back at the conclusion of a suspension/disqualification period without having to demonstrate their fitness to drive seems like a missed opportunity if reforms of this nature are not instituted,” Inspector Richardson said.

Inspector Richardson also criticised the lack of funding for education and rehabilitation programs to change the attitudes and behaviours of serious driving offenders, which he believes would reduce recidivism.

In fact, he said: “It seems there is no real clarity on how best to manage high-risk offenders.”

While LRSAC recommended funding for psychological risk assessments, it did not support the implementation of a high-risk offender scheme. Inspector Richardson questioned the effectiveness of such assessments without a clear plan for managing offenders deemed high-risk.

“So what do you do with an offender if their ‘risk rating’ comes out as ‘high’?” Inspector Richardson asked.

The report also found that ACT data was inconsistent and unreliable. For instance, the most recent road crash data on Open Data Portal ACT is from July 2021, even though the data is meant to be updated every weekend. Mr McLuckie pointed out that most magistrates’ decisions are not available through the online portal.

“If we are to have an open, transparent and evidenced-based justice system, then this admission needs to be addressed,” Mr McLuckie said.

Mr McLuckie called for a full, independent review of the criminal justice system, including sentencing and bail.

“This is something the Government is desperate to avoid, particularly after the fallout from the Sofronoff Board of Inquiry that is still ongoing,” Mr McLuckie said. 

Mr McLuckie questioned the impartiality of the council. He was concerned that two of the 13 members – Shobha Varkey, Vice-President of Prisoner Aid, and Joanne Chivers, representing the First Nations community – were “handpicked” by Mr Rattenbury, and that the council “was always likely to produce a Government-friendly report”.

“It was always my concern that the Law Reform and Sentencing Advisory Council would be a mechanism for the ACT Government and the Attorney-General to be seen to be doing something, but with no obligation to do anything,” Mr McLuckie said. “As warned, they can simply keep kicking the can down the road for many more years to come.”

A spokesperson for Mr Rattenbury said: “Some appointments are ex officio positions, others are in a personal capacity. Applications were received in response to public advertising, a selection panel from JACS made recommendations, and appointments were ultimately signed off by Cabinet.”